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CHILTON v. ATWOOD

April 10, 1991

JERRY LEE CHILTON, a/k/a KARIM ABDUL RAHIM
v.
LOU H. ATWOOD



The opinion of the court was delivered by: NIXON

 JOHN T. NIXON, UNITED STATES DISTRICT JUDGE

 The Court is in receipt of the Report and Recommendation issued by the Magistrate in the above styled action, the plaintiff's objections, the defendants' objections thereto, and the plaintiff's opposition to the defendants' objections. Under Rule 72(b), Fed.R.Civ.P., the Court must make a de novo determination of each portion of the Report and Recommendation to which objections have been filed. For the following reasons the Magistrate's Report and Recommendation will be ADOPTED in part and REJECTED in part.

 Findings of Fact

 The plaintiff, Jerry Lee Chilton (Chilton) is an inmate at the Riverbend Maximum Security Institution (RMSI) in Nashville, Tennessee. Chilton brought this action pursuant to 42 U.S.C. ยง 1983 alleging that the defendants interfered with his access to the Courts by not providing certain law library materials, and not providing postage stamps for the plaintiff to mail documents to the appropriate court. Complaint, Docket Entry No. 2. The named defendants are RMSI warden Michael Dutton, Associate Warden Ricky Bell, Law Librarian Dee Thompson, Assistant Librarian Renita Clompton, and Institutional Counselors Lou H. Atwood and Richard Merchant. Report and Recommendation, at 2.

 Stamps are available to RMSI inmates from the prison commissary, and prisoners are allowed to place orders with the commissary once each week. Defendants' Objections to the Report and Recommendation of the Magistrate, at 2, Docket Entry No. 33; Affidavit of Defendant Lou Atwood and Attached Documents, Docket Entry No. 24. In addition to stamps, prisoners may purchase other items such as tobacco, soda, candy, pens, cookies, sausage, and petroleum jelly. Commissary Order Receipt Form, Attachment to Docket Entry No. 24. The only limit on the number of stamps which a prisoner may buy is that no single order may exceed $ 50.00. Although not having sufficient funds to pay for stamps could potentially pose a problem for some inmates, the plaintiff has repeatedly stated that he is not indigent, and that paying for his stamps is not a problem. See, e.g., Plaintiff's Opposition to Defendants' Objections, at 2. The record indicates that the plaintiff purchased a wide variety of items, including stamps, during the weeks immediately preceding the time covered by his complaint. Atwood Affidavit, Paragraph 9, and Attachments thereto.

 The plaintiff's claim arises out of an incident that occurred on or about January 3, 1990. The plaintiff had prepared a notice of appeal which needed to be filed within a certain time period. The plaintiff had apparently run out of stamps, and believed that the time frame for filing the document would expire before he could buy more stamps from the prison commissary. He repeatedly asked Inmate Counselor Lou Atwood if she would mail the document for him and deduct the cost of postage from his inmate account, and Atwood refused. Exhibits 6 and 8, Plaintiff's Response to Defendant's Motion for Summary Judgment, Docket Entry No. 28. Since the plaintiff was unable to file his notice of appeal within the required time period, the U.S. Court of Appeals for the Sixth Circuit refused to hear the appeal. Chilton v. Hesson, No. 90-5121 (6th Cir. 1990) (unpublished order).

 The Magistrate found that the plaintiff's claim based on denial of law library materials was without merit. Report and Recommendation, at 3. He found that the claim based on denial of postage contained genuine issues of material fact, and therefore that claim was viable. Id. at 9-12. Since he found that the defendants are protected by qualified immunity, however, the Magistrate recommended that the claims for damages be dismissed, and only the claims for declaratory and injunctive relief be permitted to go forward. Id. at 11-12.

 Conclusions of Law

 a. Standard for Summary Judgment

 The Magistrate's discussion of the appropriate standard in ruling on a summary judgment motion is hereby ADOPTED. See Report and Recommendation, at 5-9.

 b. Denial of Law Library Materials

 The Magistrate found that this claim was without merit and Recommended that it be dismissed. Report and Recommendation, at 3, 12. The plaintiff did not dispute this finding in his objections, and in addition the plaintiff indicated that he did not wish to appeal the defendants' resolution of a grievance he filed in connection with the problem. Exhibit 3, Plaintiff's Opposition to Defendants' Motion for Summary Judgment, ...


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