United States District Court, W.D. Louisiana, Shreveport Division
CHARLES F. FISHER, JR.
LONNIE NAIL, ET AL
REPORT AND RECOMMENDATION
L. HORNSBY, MAGISTRATE JUDGE.
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
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.
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
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).
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).
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.
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.
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.
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 ...