Albert Johnson v. United States ( 2016 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2080
___________________________
Albert Lee Johnson
lllllllllllllllllllll Plaintiff - Appellant
v.
United States of America; Lori Cossey, Ms., U.S. Department of Veterans Affairs;
John Doe, 1 & 2 VA Regional Office Personnel, U.S. Department of Veterans
Affairs and Trust Fund Centralized Banking Personnel; Barbara Smallwood,
Business Manager, Varner Unit; Sherry Conrad, Mail Room Supervisor, Varner
Unit; James Banks, Warden, Varner Unit; Curtis Meinzer, Deputy Warden, Varner
Unit; James Gibson, Deputy Warden, Delta Regional Unit; Regina Goldman, Trust
Fund Centralized Banking; Larry D. May, Chief Deputy Director, Arkansas
Department of Correction; Marvin Evans, Deputy Assistant Director, Arkansas
Department of Correction; Grant Harris, Deputy Assistant Director, Arkansas
Department of Correction; Wendy Kelley, Director, Arkansas Department of Correction
lllllllllllllllllllll Defendants - Appellees
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
____________
Submitted: May 6, 2016
Filed: May 13, 2016
[Unpublished]
____________
Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
Albert Johnson, an inmate of Arkansas Department of Correction’s (ADC’s)
Varner Unit, and a recipient of disability benefits from the United States Department
of Veterans Affairs (VA), brought this action raising claims about the reduction of his
benefits, and about the alleged mishandling of his disability payments--primarily the
return of a lump-sum disability payment to the VA without notice to him. Johnson
asserted claims arising under the Federal Tort Claims Act (FTCA); Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); and 42
U.S.C. §§ 1983 and 1985.1 The district court granted summary judgment for
defendants based on two separate motions, and Johnson appeals. For the reasons that
follow, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
Contrary to Johnson’s main argument in his appellate brief, we conclude that
the district court properly determined it lacked subject matter jurisdiction over the
FTCA and Bivens claims against the federal defendants--claims related to reduction
of Johnson’s VA benefits as a result of his incarceration--because these claims were
preempted under the Veterans’ Judicial Review Act (VJRA). See 38 U.S.C. § 511;
Jones v. United States, 727 F.3d 844, 846-49 (8th Cir. 2013) (any claim concerning
VA’s handling of benefits request is pre-empted by VJRA); Mehrkens v. Blank, 556
F.3d 865, 868-70 (8th Cir. 2009) (VJRA was exclusive remedy for claimed
constitutional violations committed by VA officials while handling benefits claim,
and thus there was no Bivens remedy for constitutional violations stemming from
alleged delay of benefits). We also decline to consider Johnson’s constitutional
challenge to section 511, an argument he did not raise in the district court. See
Liberty State Bank v. Minn. Life & Health Ins. Guar. Ass’n, 149 F.3d 832, 834 (8th
1
He also raised related state law claims, but on appeal he does not challenge the
dismissal of those claims.
-2-
Cir. 1998) (newly raised constitutional arguments are not considered absent
exceptional circumstances).
Turning to the claims against the ADC defendants, the record established the
following with regard to Johnson’s principal claim. After a VA check for $12,651.57
payable to Johnson was received in Varner Unit’s mail room in January 2010, Mail
Room Supervisor Sherry Conrad forwarded the check to Varner Unit Business
Manager Barbara Smallwood, who in turn forwarded the check to ADC’s Trust Fund
Centralized Bank (TFCB) for processing. TFCB employee Regina Goldman
instructed staff member Marilyn Hutcheson to call the VA to verify that the check--in
an amount substantially higher than Johnson’s monthly benefits--could be deposited,
and the VA instructed Hutcheson to mail the check back to the VA. Goldman
notified Smallwood by e-mail that Johnson’s check was being returned to the VA, but
no one notified Johnson, who had been expecting a check for retroactive benefits in
accordance with a settlement agreement. Johnson did not find out about the returned
check until March, when his counselor called the VA to inquire, and Johnson
eventually received a replacement check from the VA in October 2010. On these
facts, we conclude that the district court erred in granting summary judgment based
on qualified immunity to the defendants involved, because it was clearly established
that an inmate had a procedural due process right to receive notice that his mail was
being rejected. See Hess v. Ables, 714 F.3d 1048, 1050 (8th Cir. 2013) (de novo
review of grant of summary judgment); Bonner v. Outlaw, 552 F.3d 673, 679-80 (8th
Cir. 2009) (noting that Supreme Court, over 30 years ago in Procunier v. Martinez,
416 U.S. 396 (1974), declared that inmates have due process right to notice whenever
correspondence addressed to them is rejected).
To the extent Johnson has challenged the grant of summary judgment in favor
of the remaining ADC defendants, we affirm the adverse judgment against these
defendants, because the claims against them were supported only by (1) allegations
involving defendants acting in their supervisory roles, (2) conclusory allegations of
-3-
a conspiracy or of retaliation, and (3) allegations of negligent conduct such as
incorrectly posting one of Johnson’s monthly checks to a different inmate’s account
for a period of time, or delays of a few days in posting monthly checks that needed
Johnson’s signature. See Murray v. Lene, 595 F.3d 868, 870 (8th Cir. 2010)
(conspiracy claim requires allegations of specific facts tending to show “meeting of
the minds” among alleged conspirators); Terrell v. Larson, 396 F.3d 975, 978 (8th
Cir. 2005) (en banc) (negligence is insufficient to establish § 1983 liability); Atkinson
v. Bohn, 91 F.3d 1127, 1129 (8th Cir.1996) (per curiam) (retaliatory animus could not
be inferred from speculative and conclusory allegations).
In summary, we affirm the grant of summary judgment in favor of the United
States, VA employee Lori Cossey, and VA employee John Doe 1. We also affirm the
grant of summary judgment in favor of Varner Warden James Banks, Deputy
Wardens Curtis Meinzer and James Gibson, ADC Director Wendy Kelley, Chief
Deputy Director Larry May, and Deputy Assistant Directors Marvin Evans and Grant
Harris. We reverse the grant of summary judgment in favor of Varner Business
Manager Smallwood, Mail Room Supervisor Conrad, and TFCB employees Goldman
and John Doe 22; and we remand for further proceedings. We express no opinion
about the liability of any of these remaining defendants, because the record was not
developed as to which defendants had the responsibility to notify Johnson before his
mail was returned. We merely hold that Bonner gave prison officials “fair warning”
that Johnson had a due process right related to the events described in the record. See
Bonner, 552 F.3d at 679.
______________________________
2
In his appellate brief, Johnson has identified TFCB employee John Doe 2 as
Marilyn Hutcheson. (Br. at 26.) She should therefore be substituted on remand.
-4-