Hunnicutt v. Moore

CARNELL HUNNICUTT, SR., Plaintiff, v. DESTINEE MOORE; RAYMOND SMITH; GEO CORP; LCCF; M. VALERIANO;STACEY BEAIRD; KATHERINE BRODIE; P. VALDEZ; T. FOSTER;and GERMAN FRANCO, Defendants.

No. CV 18-0667 JB/KRS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 21, 2020

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed February 21, 2020 (Doc. 60)("PFRD"). In the PFRD, the Honorable Kevin R. Sweazea, United States Magistrate Judge for the United States District Court of the District of New Mexico, recommends granting in part and denying in part the Renewed Motion for Summary Judgement filed by Defendants Destinee Moore, Raymond Smith, Geo Group, M. Valeriano, Katherine Brodie, and P. Valdez as part of their Martinez report.¹ See Martinez Report, filed November 1, 2019 (Doc. 40); Joinder of Defendant Moore in Geo Defendants' Martinez Report and Motion for Summary Judgment, filed February 2, 2020 (Doc. 52); Joinder of Defendant Smith in Geo Defendants' Martinez Report and Motion for Summary Judgment, filed February 19, 2020 (Doc. 59). On March 6, 2020, Defendants Destinee Moore, Raymond Smith, Geo Group, M. Valeriano, Katherine Brodie, and P. Valdez filedobjections to the portion of the PFRD denying summary judgment. See Geo Defendants' Objections to Proposed Findings and Recommended Disposition, filed March 6, 2020 (Doc. 63)("Objections"). The Court will overrule the Objections and adopt the PFRD.

FACTUAL BACKGROUND

Plaintiff, Carnell Hunnicutt, Sr., was confined at the Lea County Correctional Facility in Hobbs, New Mexico ("LCCF") from 2015 to 2018. See Plaintiff's Response to Defendants Martinez Report at 3-4, filed December 11, 2019 (Doc. 46). Although he is from Connecticut, Hunnicutt was incarcerated in New Mexico pursuant to the Interstate Corrections Compact, which allows for the transfer of prisoners among members of the Compact, see N.M. Stat. Ann. §§ 31-5-17 to 31-5-19; Plaintiff's Response to Defendants Martinez Report at 3-4.

In his Complaint, Hunnicutt alleges that he is a cartoonist who uses his cartoons to comment on prison conditions, see Complaint ¶ 5, at 2, filed July 12, 2018 (Doc. 1-1); Plaintiff's Response to Defendants Martinez Report at 41-65, filed December 11, 2019 (Doc. 46), and that "Defendants Smith, Brodie, Beaird, Valdez and Foster routinely targeted Plaintiff's outgoing mail for political cartoons/cartoons about the prison and incidents with staff," and "retaliate[ed] against him and attempt[ed] to censor him for criticizing prison conditions and personnel in his outgoing mail," Complaint ¶ 5, at 2. Based on the Defendants' actions, Hunnicutt advances the following claims: "copyright infringement, interference with outgoing mail, retaliatory punishment, negligence and infractions for criticizing prison conditions and personnel in outgoing correspondence." Complaint ¶ 1, at 1.

PROCEDUAL BACKGROUND

On July 12, 2018, Hunnicutt sued Defendants Destinee Moore, Raymond Smith, Geo Corp, LCCF, M. Valeriano, Stacy Beard, Katherine Brodie, T. Foster, P. Valdez, and GermanFranco in the Fifth Judicial District Court, Lea County, State of New Mexico. See Complaint ¶ 2, at 2. The Defendants removed subsequently the action to the federal Court. See Notice of Removal, filed July 12, 2018 (Doc. 1). Seeking to remain in state court, Hunnicutt moved to remand. See Motion to Remand, filed August 9, 2020 (Doc. 6). The Defendants opposed the motion, see Defendants Geo, Valeriano, Brodie and Valdez' Response in Opposition to Plaintiff's Motion in Opposition for Removal of Civil Act, filed Aug 16, 2020 (Doc. 10), and separately moved for summary judgment, see The Geo Defendants' Motion for Summary Judgment and Memorandum of Law in Support, filed October 12, 2018 (Doc. 16).

On March 28, 2019, the Court denied Hunnicutt's Motion to Remand and screened the Complaint pursuant 28 U.S.C. § 1915A, concluding that Hunnicutt stated a retaliation claim under the First Amendment to the Constitution of the United States of America. See Memorandum Opinion and Order Denying Motion to Remand at 19, filed March 28, 2019 (Doc. 33)("Taking Hunnicutt's allegations as true, prison officials withheld his outgoing mail, because it contains unflattering or unwelcome opinions, and not out of legitimate penological interests, and then punished Hunnicutt for asserting his First Amendment rights."). However, the Court found that Hunnicutt did not state cognizable claims under 17 U.S.C. §§ 101-810, or under 42 U.S.C. § 1983 for violation of prison grievance procedures. See Memorandum Opinion and Order Denying Motion to Remand at 19-21. Following the Court's Order directing the Defendants to submit a Martinez report, the Court denied their Motion for Summary Judgment without prejudice. See Memorandum Opinion and Order Denying the Defendants' Motion for Summary Judgment Without Prejudice and Denying the Plaintiff's Motion for Relief Under Rule 56(D) as Moot, filed September 28, 2019 (Doc. 38). The Defendants filed their Renewed Motion for Summary Judgment on November 1, 2019. See Martinez Report, filed November 1,2019 (Doc. 40)("Renewed Motion for Summary Judgment"). On February 10 and 19, 2020, Moore and Smith, joined in the Renewed Motion for Summary Judgment. See Joinder of Defendant Moore in Geo Defendants' Martinez Report and Motion for Summary Judgment, filed February 10, 2020 (Doc 52); Joinder of Defendant Smith in Geo Defendants' Martinez Report and Motion for Summary Judgment, filed February 19, 2020 (Doc. 59).

The remaining claims in this case are that Smith, Beaird, Brodie, and Moore violated Hunnicutt's First Amendment rights by retaliating against him for cartoons and statements included in his outgoing mail on June 1 or 2, 2017; June 20, 2017; and June 26, 2017; as well as Hunnicutt's state-law causes of action. See Proposed Findings and Recommended Disposition at 9, filed February 21, 2020 (Doc. 60). In considering these claims, Magistrate Judge Sweazea explained that a claim for retaliation under the First Amendment comprises three elements: (i) the inmate engaged in protected speech; (ii) the prison official's actions caused the inmate "to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity"; and (iii) the adverse action was "substantially motivated" in response to the inmate's protected speech. PFRD at 9 (quoting Shero v. City of Grove, Okl., 510 F.3d 1196, 1203 (10th Cir. 2007)).

Regarding the June 1 or 2, 2017 correspondence, Magistrate Judge Sweazea found that Hunnicutt did not suffer a cognizable adverse action, because the "undisputed material facts establish that no prison official issued Hunnicutt a misconduct report for the single frame cartoon, Hunnicutt was not disciplined for that incident, and the cartoon ultimately was mailed to the intended recipient, albeit after it was returned to Hunnicutt and delayed by less than thirty days." PFRD at 9 (citing Schroeder v. Drankiewicz, 519 Fed. Appx. 947, 950 (7th Cir. 2013)(explaining that "a delay of less than two months in sending a single piece of personalmail" did not amount to "an injury of constitutional dimension"); Muhammed v. McKune, 1995 U.S. Dist. LEXIS 12620, at *7 (D. Kan. Aug. 24, 1995)(Van Bebber, J.)(finding that ninety-day delay in receiving mail was neither prejudicial nor harmful)).

Next, Magistrate Judge Sweazea found that genuine issues of material fact preclude summary judgment on Hunnicutt's claims that he suffered retaliation in violation of the First Amendment for his outgoing mail dated June 20, 2017 and June 26, 2017. See PFRD at 19. Magistrate Judge Sweazea explained that the "free flow of incoming and outgoing mail" to and from inmates is among those rights that the First Amendment protects. PFRD at 10 (quoting Burns v. Martuscello, 890 F.3d 77, 88 (2d Cir. 2018)). An inmate's right to correspond is not absolute, however, and restrictions on outbound correspondence containing "threats, blackmail, contraband, plots to escape, discuss criminal activities, or otherwise circumvent prison regulations, [are] essential to the protection of prison order and security." PFRD at 11 (quoting Gandy v. Ortiz, 122 Fed. Appx. 421, 423 (10th Cir. 2005)). Accordingly, prison officials may read outgoing, non-legal mail to ensure that an inmate's letter does not impinge on these interests, but "may not punish inmates for statements made in letters to outsiders that do not impinge on these important governmental interests." PFRD at 11 (quoting Gandy v. Ortiz, 122 Fed. Appx. at 423).

After reviewing relevant cases, and noting that neither the United States Court of Appeals for the Tenth Circuit nor the Supreme Court of the United States of America has decided a factually analogous case, Magistrate Judge Sweazea considered whether the mail sent by Hunnicutt was legitimate correspondence to outside persons or, instead, was directing defamatory comments to the warden and prison staff "through the guise of legitimate outgoing communication." PFRD at 14 (citing Leonard v. Nix, 55 F.3d 370, 371 (8th Cir. 1995)).Magistrate Judge Sweazea acknowledged that Hunnicutt's speech in the outgoing mail is "certainly offensive, unflattering, and arguably defamatory," and that harassing or demeaning staff "can implicate legitimate penological interests of security and order." PFRD at 14. Nevertheless, examining the evidence in the light most favorable to Hunnicutt and drawing all reasonable inferences in his favor, Magistrate Judge Sweazea found that a fact finder could conclude that the First Amendment protects Hunnicutt's speech, because (i) he is a published artist on prison conditions, (ii) he uses drawing as a medium to comment on those conditions, and (iii) he addressed the letters to persons outside the institution, one of whom helps Hunnicutt exhibit his work. See PFRD at 15-16. Moreover, Hunnicutt's...