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Ferris v. Schofield

United States District Court, W.D. Tennessee, Eastern Division

September 27, 2017

WILLIAM J. FERRIS, SR., Plaintiff,
v.
DERRICK D. SCHOFIELD, et al., Defendants.

          ORDER DENYING DEFENDANTS' MOTION TO STRIKE, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND NOTIFYING PLAINTIFF OF APPELLATE FILING FEE

          JAMES D. TODD, UNITED STATES DISTRICT JUDGE.

         The pro se prisoner Plaintiff, William J. Ferris, Sr., a Tennessee Department of Correction inmate who is currently confined at the Trousdale Turner Correctional Center in Hartsville, Tennessee, filed this action pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court granted leave to proceed in forma pauperis and assessed the filing fee pursuant to the Prison Litigation Reform Act (PLRA), 28 U.S.C. §§ 1915(a)-(b). (ECF No. 5.) The complaint concerns events that occurred during Plaintiff's previous incarceration at the Northwest Correctional Complex (NWCX) in Tiptonville, Tennessee.

         On July 24, 2014, the Court issued an order dismissing portions of the complaint and directing that process be issued and served on the remaining Defendants, Inmate Relations Coordinator Gary Dozier and Unit Manager Jeff J. Tarver. (ECF No. 9.) The Defendants subsequently filed a motion for summary judgment. (ECF No. 71.) The Court granted Plaintiff two extensions of time to respond, and the Clerk received and docketed Plaintiff's response to the Defendants' motion on January 9, 2017. The response is made up of several documents, including a memorandum (ECF No. 79); a Response to Defendants' Statement of Material Facts (ECF No. 81); a separate Statement of Disputed Factual Issues with regard to each Defendant (ECF Nos. 82 & 83); and Plaintiff's Declaration plus several other exhibits (ECF No. 84). However, on January 17, 2017, Plaintiff filed a second Response to Defendants' Statement of Material Facts. (ECF No. 85.) In a cover letter accompanying that document, Plaintiff advised the Clerk that he inadvertently included the wrong version of the document with his previous filing and asked that the incorrect document be replaced with the correct version. (ECF No. 85-8.)

         On January 23, 2017, Defendants filed a motion to strike all of the documents received from Plaintiff on January 9, 2017 and January 17, 2017 as untimely because, in accordance with the last extension of time granted by the Court, his documents were due on or before December 31, 2016. (See ECF No. 78.) With regard to the responses docketed on January 9, 2017, the motion to strike is not well taken. Under the “mailbox rule” of Houston v. Lack, 487 U.S. 266 (1988), Plaintiff's documents are deemed filed when they are placed in the prison mail system. The documents docketed January 9, 2017, were executed by Plaintiff on December 28, 2016. Plaintiff asserts in a Declaration attached to his response to the motion to strike that the documents were placed in the prison mail system on December 31, 2016. (ECF No. 88-1 at 5.) Thus, Plaintiff's initial response to Defendants' motion for summary judgment was timely filed.

         The filing in which Plaintiff sought to replace his original Response to Defendants' Statement of Material Facts with the correct version of that document was not timely, however. While the document itself may have been executed on December 28, 2016, it clearly was not placed in the prison mail system on December 31st with the other timely-filed documents, as the certificate of service on Plaintiff's cover letter is dated January 12, 2017. (ECF No. 85-8 at 3.) Nevertheless, as Plaintiff is not seeking to file an additional Response to Defendants' Statement of Material Facts but is seeking merely to replace the wrong document with the correct version, the Court will not strike the later filing as untimely. The Court will consider only the later version of the document - not both versions.

         The Court's order of partial dismissal disposed of all the claims raised in the complaint except those against Defendants Dozier and Tarver for denial of Plaintiff's First Amendment right of access to the courts. Plaintiff alleges that he anticipated filing both a federal habeas petition pursuant to 28 U.S.C. § 2254 and a civil action against the deputy warden for wrongful termination of Plaintiff's prison job. He states that for ten years he had been allowed to keep a large amount of legal materials in his cell. However, on February 6, 2013, Defendant Dozier, on Defendant Tarver's orders, suddenly “confiscated” all of Plaintiff's legal materials from his cell for storage in another location within the facility that Plaintiff could not access on his own. The stated reason for taking the materials was that Plaintiff was in violation of TDOC Policy 504.01 § VI.B and NWCX Policy 504.01-1 § VI.D, which provided that inmates may keep only a specified amount of personal property and legal materials in their cells. NWCX Policy 504.01-1 further provided, “the inmate will be allowed reasonable access to any stored legal material by contacting the Unit Manager who will schedule a time for the inmate to gain access.” (Compl. ¶¶ 87-89, ECF No. 1 at 21-22 & Ex. 1, ECF No. 2.)

         Plaintiff further alleges that despite his repeated, sometimes daily, requests to Defendant Tarver to be allowed access to his legal materials, he was refused and/or ignored. After the Tennessee Supreme Court denied permission to appeal his post-conviction petition, see Ferris v. State of Tennessee, No. WTenn. 1-00746-CCA-R3-PC, 2012 WL 5456096 (Tenn. Crim. App Nov. 7, 2012), perm. app. denied, (Tenn. Mar. 5, 2013), Plaintiff alleges he had less than a month left to file a timely federal habeas petition. The lack of access to his legal materials allegedly caused him to be unable to do so. Plaintiff also alleges, without much elaboration, that he was unable to file the planned civil action challenging his wrongful termination from his prison job.

         Pursuant to Fed.R.Civ.P. 56, summary judgment is appropriate “if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he burden on the moving party may be discharged by ‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Rule 56(c)(1) provides that “[a] party asserting that a fact cannot be or is genuinely disputed” is required to support that assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers or other materials;[1] or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

         “If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c)” the district court may:

(1) give an opportunity to properly support or address the fact;
(2) consider the fact undisputed for purposes of the motion;
(3) grant summary judgment if the motion and supporting materials- including the facts considered undisputed-show that ...

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