Cox v. Prevatt

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
JAMES EDWARD COX 	PLAINTIFF
v. 	Case No. 6:23-cv-6112
SERGEANT KIMBERLY PREVATT,
Correctional Officer, Omega Unit of the
Arkansas Division of Correction 	DEFENDANT
ORDER
Before the Court is the Report and Recommendation filed by the Honorable Barry A.
Bryant,0F
1 United States Magistrate Judge for the Western District of Arkansas. 	ECF No. 72.
Judge Bryant recommends that Defendant’s Motion for Judgment on the Pleadings (ECF No. 57)
be granted. 	Plaintiff has responded with objections. 	ECF No. 75. 	The Court finds the matter
ripe for consideration.
I. BACKGROUND
Plaintiff, representing himself in this matter, files this action pursuant to 42 U.S.C.
§ 1983. 	At all times relevant to this lawsuit, Plaintiff was detained at the Omega Unit of the
Arkansas Division of Correction. The only remaining claim in this matter is Plaintiff’s assertion
that on March 22, 2023, when he asked Defendant to sign and seal a legal envelope addressed to
an attorney, Defendant read his legal mail. 	Plaintiff states that the legal mail concerned the
instant lawsuit. According to Plaintiff, Defendant stated that she was supposed to read his mail
to ensure it was legal mail. 	Plaintiff asserts that this violated his attorney-client privilege.
Plaintiff asks the Court to award him compensatory and punitive damages. 	Plaintiff specifies
that he is suing Defendant in her official capacity only.
In her Motion for Judgment on the Pleadings (ECF No. 57), Defendant argues that the
1Judge Bryant is now retired.
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Court lacks subject matter jurisdiction over Plaintiff’s claim because there is no cognizable
federal claim for third-party invasion of the attorney-client privilege. 	Defendant further argues
that Plaintiff’s requested relief, compensatory and punitive damages, is not available because
Plaintiff sues Defendant only in her official capacity as a state employee. Judge Bryant
recommends that the Court grant Defendant’s Motion for Judgment on the Pleadings. ECF No.
57. Plaintiff objects.
II. STANDARD OF REVIEW
The Court may designate a magistrate judge to hear pre- and post-trial matters and to
submit to the Court proposed findings of fact and recommendations for disposition. 28 U.S.C. §
636(b)(1). 	Within fourteen days of receipt of a magistrate judge’s report and recommendation,
“a 	party 	may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations.” Fed. R. Civ. P. 72(b)(2); accord Local Rule 72.2(VII)(C). After conducting
an appropriate review of the report and recommendation, the Court may then “accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge . . .
or recommit the matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1).
“[T]he specific standard of review depends, in the first instance, upon whether or not a
party has objected to portions of the report and recommendation.” 	Anderson v. Evangelical
Lutheran Good Samaritan Soc’y, 308 F. Supp. 3d 1011, 1015 (N.D. Iowa 2018). 	Generally,
“objections must be timely and specific” to trigger de novo review. Thompson v. Nix, 897 F.2d
356, 358-59 (8th Cir. 1990). 	However, the Court may, in its discretion, conduct a de novo
review of any issue in a report and recommendation. Thomas v. Arn, 474 U.S. 140, 154 (1985).
The Court applies a liberal construction when determining whether pro se objections are specific.
Hudson v. Gammon, 46 F.3d 785, 786 (8th Cir. 1995).
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III. DISCUSSION
Judge Bryant analyzes Plaintiff’s claim as if he is alleging First and Sixth Amendment
violations 	based 	on 	Defendant’s 	act 	of 	reading 	Plaintiff’s 	legal 	mail 	pursuant 	to 	her
training/instructions.
Privileged legal mail to or from an inmate’s attorney and identified as such may not be
opened for inspection except in the presence of the prisoner. Wolff v. McDonnell, 418 U.S. 539,
576-77 (1974). The right to maintain security within prison does not extend to reading inmates’
legal mail. Id. Because Plaintiff alleges that Defendant read his legal mail, Judge Bryant finds
that Plaintiff asserts a plausible First Amendment claim. The Court agrees with Judge Bryant’s
analysis. Plaintiff does not object to this finding.
Turning now to Plaintiff’s Sixth Amendment claim alleging that Defendant intruded on
the attorney client privilege, Judge Bryant finds that this claim should be properly construed as a
Sixth Amendment right to counsel claim. “To establish a sixth amendment violation, a criminal
defendant must show two things: first, that the government knowingly intruded into the attorney-
client relationship; and second, that the intrusion demonstrably prejudiced the defendant, or
created a substantial threat of prejudice.” United States v. Singer, 785 F.2d 228, 234 (8th Cir.
1986). 	The Sixth Amendment, however, only “protect[s] the attorney-client relationship from
intrusion in the criminal setting.” Wolff, 418 U.S. at 576 (citations omitted).
In the instant case, Plaintiff alleges that the legal mail Defendant read concerned his civil
case, which is beyond the reach of the Sixth Amendment’s right to counsel in criminal cases.
Because Plaintiff does not allege an intrusion into an attorney-client relationship in a criminal
case, Judge Bryant finds that Plaintiff’s Sixth Amendment right to counsel claim is not plausible.
The Court agrees with Judge Bryant’s analysis and finds that this claim must be dismissed.
Plaintiff does not specifically object to this finding but instead generally argues that his claims
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should proceed to trial. ECF No. 75, p. 2.
The Court turns now to the issue of immunity. 	Judge Bryant finds that even though
Plaintiff alleges a plausible First Amendment claim, it is barred by Eleventh Amendment
immunity.
Plaintiff alleges that Defendant is employed by the Arkansas Division of Correction.
“Claims against individuals in their official capacities are equivalent to claims against the entity
for which they work.” Gorman v. Bartch, 152 F.3d 907, 914 (8th Cir. 1998). 	Thus, Plaintiff's
official 	capacity 	claims 	against 	Defendant 	are 	claims 	against 	the 	Arkansas 	Division 	of
Correction, which is under the umbrella of the Arkansas Department of Corrections.1F
2 	The
Arkansas Department of Corrections is a state agency.
“The Eleventh Amendment bars suits against a State by a citizen of that same State in
federal court.” 	Williams v. State of Mo., 973 F.3d 599, 600 (1992). 	Eleventh Amendment
immunity extends to state agencies. Gibson v. Ark. Dep’t of Corr., 265 F.3d 718, 720 (8th Cir.
2001). Thus, Judge Bryant finds that, because the Arkansas Department of Corrections is a state
agency, it is entitled to Eleventh Amendment immunity. 	See Campbell v. Ark. Dep’t of Corr.,
155 F.3d 950, 962 (the Arkansas Department of Correction is entitled to sovereign immunity).
The Court agrees with Judge Bryant’s analysis. 	Plaintiff’s objections do not address the
immunity issue.
In sum, even though Plaintiff states a plausible First Amendment claim, the claim is
barred by Eleventh Amendment immunity and must be dismissed.
IV. CONCLUSION
Upon de novo review of the Report and Recommendation, and for the reasons discussed
2The Arkansas Department of Correction was reorganized in 2019 to become the Arkansas Department of
Corrections. The new department, Arkansas Department of Corrections, is a cabinet level department within the
Arkansas state government and includes the Division of Correction and the Division of Community Corrections.
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above, the Court finds that Plaintiff has offered neither fact nor law which would cause the Court
to deviate from Judge Bryant’s Report and Recommendation. 	Therefore, the Court overrules
Plaintiff’s objections (ECF No. 75) and adopts the Report and Recommendation (ECF No. 72) in
toto. 	Plaintiff’s claims are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 24th day of March, 2026.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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