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Fisher v. Nail

United States District Court, W.D. Louisiana, Shreveport Division

January 26, 2018

CHARLES F. FISHER, JR.
v.
LONNIE NAIL, ET AL

          HICKS, JUDGE.

          REPORT AND RECOMMENDATION

          MARK L. HORNSBY, MAGISTRATE JUDGE.

         Introduction

         Charles Fisher (“Plaintiff”) is a self-represented inmate who is housed at the David Wade Correctional Center. He was convicted of a disciplinary offense and sentenced to extended lockdown, where inmate possessions are limited. Plaintiff had items that were either not allowed in lockdown or were allowed only in limited numbers, so prison officials confiscated several items of his property. Plaintiff attempted several times to obtain the return of his property, but it appears that prison officials discarded or destroyed the property.

         Plaintiff named several defendants and asserted a number of claims. Defendants earlier filed a motion to dismiss that resulted in the dismissal of claims including due process based on property loss, dissatisfaction with grievance rulings, violation of DOC policy, and the Eighth Amendment. The only claim that survived was one against Colonel Lonnie Nail for violation of the Equal Protection Clause. The claim was based on Plaintiff's allegation that Nail allowed prisoners from northern Louisiana, informants, and white prisoners to have their personal property stored when they were on extended lockdown, while other prisoners were discriminated against by having their property taken and distributed to more favored prisoners. Docs. 41 and 56.

         Now before the court is Lonnie Nail's Motion for Summary Judgment (Doc. 54). Nail seeks dismissal of the final claim against him on the grounds that Plaintiff did not exhaust his administrative remedies with respect to that claim. For the reasons that follow, it is recommended that Nail's motion be granted.

         Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(a). A fact is “material” if it might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). A dispute is “genuine” if there is sufficient evidence so that a reasonable jury could return a verdict for either party. Anderson, supra; Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000).

         The party seeking summary judgment has the initial responsibility of informing the court of the basis for its motion, and identifying those parts of the record that it believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986). If the moving party carries his initial burden, the burden then falls upon the nonmoving party to demonstrate the existence of a genuine dispute of a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1355-56 (1986).

         Relevant Facts

         As set forth in the prior Report and Recommendation, DOC policy 28A lists the kind and quantity of items an inmate may possess. It includes matters such as clothing, photo albums, electronic media, and magazines. The policy states that all items not listed or that exceed the quantities listed will be confiscated and “will be sent home at the offender's expense, given to charity or destroyed” pursuant to policy.

         DOC policy 36 governs possessions by inmates in maximum custody (such as the extended lockdown to which Plaintiff was sentenced). The policy states that each prison shall establish an allowable property list for offenders housed in each level of maximum custody status. It adds: “Procedures shall also be developed for the storage and issuance of offender personal property not allowed or allowed in the different levels of maximum security.” The record does not appear to include a copy of any such procedures in place at David Wade.

         Plaintiff was found guilty of a rule infraction in May 2013 and sentenced to time in extended lockdown. Plaintiff appealed the finding and sentence. Officers inventoried his property and confiscated certain items, with the confiscation noted to be made per OPP #43 and/or over limit. The items confiscated included 30 magazines, a soap dish, six books, 11 cassette tapes, one pair of sweatpants, two pencils, a knit cap, and several photos. The form allowed the inmate to request the items either be destroyed or mailed home. Plaintiff declined destruction but did not provide an address for mailing, so a box was checked that directed the items be placed in “appropriate bin in confiscation room.” Plaintiff made several requests, written and oral, to learn the location of his property or obtain its return. He reached out to Colonel Nail and Warden Jerry Goodwin without success.

         Plaintiff filed his first of two administrative grievances about his missing property in November 2013. He admitted in the grievance that he refused to sign the confiscation document, and he said he would not sign such papers until he could actually see his property. Plaintiff argued that prison officials were improperly applying the written policies and that policy 36 required ...


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