David Williams v. Kay Wade, Greg Harmon, Ray Hobbs

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03-573

ARKANSAS SUPREME COURT

No. 03-573

NOT DESIGNATED FOR PUBLICATION

DAVID WILLIAMS

APPELLANT

v.

KAY WADE, GREG HARMON, RAY HOBBS

APPELLEES

Opinion Delivered May 12, 2005

APPEAL FROM THE CIRCUIT COURT OF JEFFERSON COUNTY, CV-2002-521-5, HONORABLE FRED D. DAVIS III, JUDGE

AFFIRMED AS MODIFIED

PER CURIAM

David Williams, an inmate in the Arkansas Department of Correction ("ADC"), filed this civil rights action against Kay Wade, Greg Harmon, and Ray Hobbs, in their official and individual capacities. Relying upon the Arkansas Civil Rights Act, Ark. Code Ann. §16-123-105 (Supp. 2003), Williams alleged violation of Ark. Const. art. 2, §§ 3, 8, 13, 24 and U.S. Const. amend. 14 through a number of incidents related to sending or receiving mail at the prison. Williams's complaint was dismissed as to all defendants. In the order dismissing the complaint, the trial court found Williams had conceded some issues, and found the remainder moot or to be referred to the claims commission, aside from the issue of Williams's failure to receive certain religious materials. The defendants' motion to dismiss was granted with a notation by the trial court of an exception for a finding that "any permitted religious documents should be allowed to plaintiff." We affirm, modifying the judgment to dismiss all claims.

Williams filed this suit alleging constitutional violations arising from seven events involving the handling of mail. Each of the defendants is an ADC official or employee. Wade is the prison mail room supervisor, Harmon the warden, and Hobbs the Chief Deputy Director of the ADC. The defendants responded to Williams complaint with a motion to dismiss under Ark. R. Civ. P. 12(b)(6). Both sides submitted exhibits with their pleadings. A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002). Summary judgment is granted when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Id. at 1003, 69 S.W.3d at 418. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. at 1004, 69 S.W.3d at 418. Our review focuses on the documents filed by the parties, as well as the pleadings. Id.

Appellant raises three points on appeal: (1) that the trial court erred in dismissing the damage claims as moot; (2) that the trial court erred in granting the motion to dismiss: (3) that the trial court erred in not granting Williams prevailing party status. The appellees raise sovereign immunity, qualified immunity and statutory immunity on appeal. Because we find immunity applicable on all the claims, we do not address appellant's first point on appeal.

Appellant concedes in his reply brief that sovereign immunity is applicable to the appellees in their official capacity. We agree that his claims for monetary, declaratory and injunctive relief are barred by Article 5, Section 20, of the Arkansas Constitution. See Fegans v. Norris, 351 Ark. 200, 89 S.W.3d 919 (2002). Turning next to the issue as to whether qualified or statutory immunity applies to the claims against the appellees in their individual capacities, we examine the seven violations of constitutional law alleged by appellant in his complaint.

Williams first alleged he was prevented for some time from mailing several packages containing what he described as religious research papers, on the basis that the packages were "excessive-mail." Williams asserted he was then charged too much for the mailings once the packages were mailed, because they were sent priority mail rather than first class as he intended. Next Williams alleged a package of legal papers was refused on the basis that the envelope was not acceptable, and by the time Harmon instructed Wade to accept the envelope, Williams had already purchased other envelopes and successfully mailed the package. Williams's third point in his complaint alleged certain books sent to Williams from Revelation of Hymn Ministries were rejected for his receipt. Williams received a notice that indicated the books had been rejected because they did not come from the publisher or a book store and would be destroyed at the end of thirty days if Williams did not pay the amount of money necessary to cover the cost of return. The books were destroyed and Williams's grievance, arguing the organization that sent the books was an appropriate one, was denied. The next point in the complaint asserted Wade and a guard conducted a shake down and search of Williams's cell while Williams was gone. Williams alleged legal papers were taken during the search and that the shake down was conducted to harass Williams in retaliation for filing a federal lawsuit.

Williams next alleged he did not receive three or four copies of a newspaper he subscribes to during a ten month period, while other inmates did receive their papers without incident. Williams's sixth point alleged that he and another inmate both were sent money orders at the same time, but Williams's was posted to his account eight days after the other inmate's money order posted. Williams's last point in his complaint alleged that he attempted to mail correspondence to the state claims commission concerning the destroyed books. Williams alleged that when the package was returned, Wade required an additional thirty-four cents over the amount indicated on the envelope by the postal service as needed to resend the correspondence. Williams also asserted he was wrongly forced to use a new envelope.

Ark. Code Ann § 19-10-305(a) (Supp. 2003) provides immunity from liability and from suit to state employees and officers, except to the extent that they may be covered by liability insurance, for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment. Appellant has not asserted either that insurance coverage is applicable, or that the appellees acted outside the scope of their employment. The statutory protection is therefore applicable unless appellee has pled sufficient facts to support a finding that the acts or omissions were committed maliciously. We require facts be pled to support a plaintiff's claims, not mere conclusions. Ark. R. Civ. P. 8(a)(1).

As to appellees Harmon and Hobbs, appellant asserted their failure or refusal to properly train, supervise and apply progressive disciplinary measures to Wade and, in Hobbs case, Harmon constitutes deliberate indifference from which malice can be inferred. Yet, appellant does not assert any specific failures on Harmon's or Hobbs's part, or point to any actions by Harmon or Hobbs that would appear to condone or promote retaliation or other inappropriate behavior. There is no evidence in the record that Harmon or Hobbs should have known Wade was acting so as to cause harm to appellant. In the instances where appellant protested Wade's performance, appellant has shown a response from both of them. Harmon responded each time to appellant's grievance, and Hobbs responded to each appeal of Harmon's response. Those responses contained no indication that either Harmon or Hobbs believed Wade had acted outside of proper procedures so as to call for disciplinary measures, or that either Harmon or Hobbs had reason to believe Wade had acted in retaliation, as appellant asserts. In order to show that a defendant acted with conscious indifference, it must appear that he knew or had reason to believe that his actions were about to inflict injury, and that he continued in his course with a conscious indifference to the consequences of his actions. Shepherd v. Washington County, 331 Ark. 480, 962 S.W.2d 779 (1998). Nor does appellant show directly that Harmon or Hobbs acted with any malicious intent. We can find no allegation by appellant supported by facts that would show malice on the part of Harmon or Hobbs.

As to appellee Wade, appellant asserts she acted in retaliation for a lawsuit appellant had filed against her. But, once again, he has failed to allege facts that would support that allegation. Even though appellant may have actually filed an action against Wade, and Wade may have had knowledge of that suit, appellant has alleged no evidence that indicates Wade acted in revenge for the suit. Appellant asserts that the events show a pattern of discrimination, but we cannot agree. In those instances that Wade gave a reason for a failure to comply with some request from appellant, she is not alleged to have continued to refuse the request, or to have added additional conditions or requirements, once appellant took appropriate action to overcome the original announced reason. Indeed, appellant's pleadings indicate appellant was successful each time he complied and met an announced condition. Her actions, in and of themselves, do not speak of wilfulness or spite. Even the shakedown, which appellant alleges was harassment, appears to have been done in accord with procedure. Appellant does not allege it was improperly conducted, although he considered it unusual for Wade to have participated. He does assert papers involving a lawsuit were taken during the shakedown, but he does not provide or assert the existence of any evidence to support that conclusory allegation. At no time has appellant asserted evidence that shows Wade's state of mind may have been malicious or spiteful while performing the acts appellant complains of.

We hold sovereign immunity and statutory immunity barred each cause of action in the complaint. The trial court did not err in granting the motion to dismiss, whether or not the order announced the wrong reason. Jegley v. Picado, 349 Ark 600, 80 S.W.3d 332 (2002). Because immunity protected the defendants from suit, the trial court would have been incorrect to the extent he may have reached the merits of any part of the suit. Accordingly, appellant would not be entitled to prevailing party status, since he did not prevail on any point. We affirm, with that modification.

Affirmed as modified.