Taylor v. Franklin et al (INMATE2)

Filing 6

REPORT AND RECOMMENDATIONS Plaintiff's claims that he has been denied access to television and radio and that Defendants are improperly taxing postage-paid envelopes be DISMISSED with prejudice prior to service of process pursuant to the directi ves of 28 U.S.C. § 1915(e)(2)(B)(i); that Plaintiff's claim that he is being denied access to the courts be DISMISSED prior to service of process pursuant to the directives of 28 U.S.C. § 1915(e)(2)(B)(ii); that this case with respect to Plaintiff's claim that his First Amendment rights are being violated by a denial of access to newspapers and magazines be referred back to the undersigned for further proceedings; Objections to R&R due by 1/28/2010. Signed by Honorable Terry F. Moorer on 1/14/2010. (jg, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION _____________________________ J O H N WILLIAM TAYLOR P l a in tif f , v. WILLIAM E. FRANKLIN, et al., Defendants. _____________________________ * * * * * 2:10-CV-6-ID (WO) R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE P la in tif f , John Taylor, an inmate incarcerated at the Elmore County Jail, filed this 42 U .S .C . 1983 action on January 4, 2010. He complains that he is being denied access to " m e d i a " in violation of his First Amendment rights, he is being denied access to the courts, a n d Defendants are illegally taxing stamps. Sheriff Bill Franklin, Warden Fox, and Jail A d m in is tra to r Sue Roberts are the named defendants. Plaintiff seeks damages and injunctive re lie f . Upon review of the complaint, the court concludes that dismissal of some of P lain tiff 's claims case prior to service of process is proper under 28 U.S.C. 1915(e)(2)(B).1 A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. 1915(e)(2)(B)(i)-(iii). 1 I . DISCUSSION A . The First Amendment Claim P la in tif f complains that his First Amendment right to freedom of the press has been v io la te d by an absence of access in the county jail to various forms of media including, te le v is io n , radio, newspaper, and magazines. Plaintiff's allegation that his First Amendment r ig h t s are being violated because he is denied access to radio and television shall be d is m is s e d . To state a viable claim for relief under 1983, a plaintiff must assert that a person d e p riv e d him or cause him to be deprived of a right secured by the Constitution or laws of th e United States, and that the alleged deprivation was committed under color of state law. S e e West v. Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1 9 7 0 ); Parratt v. Taylor, 451 U.S. 527 (1981). Plaintiff lacks any federally guaranteed right in general to watch television or listen to the radio. See Scheanette v. Dretke, 2006 WL 2 4 7 4 4 8 6 , at * 1 (5 th Cir. Aug. 28, 2006); Elliott v. Brooks, 1999 WL 525909, at * 1 (10 th Cir. Ju ly 20, 1999); see also Griffin v. Smith, 493 F.Supp. 129 (W.D.N.Y.1980) ("It cannot be s a id that all of the conditions listed by plaintiffs, even if discomforting or undesirable, a m o u n t to deprivations of constitutional dimensions. There is no dispute that prison life is rig id and often harsh. However, a federal court is not the proper forum for challenging or c h a n g in g every aspect of the harsh realities of confinement unless the conditions cannot be tolerated under the Constitution."). 2 P la in tif f also alleges that his First Amendment rights are being violated because he is being denied access to newspapers and magazines. With regard to analyzing whether sua sp o n te dismissal of this First Amendment claim is warranted, the court finds that given the a b se n c e of a record showing the legitimate penological interests served by the alleged denial, s u c h sua sponte dismissal is not warranted. S e e Beard v. Banks, 548 U.S. 521 (2006). B . The Illegal Taxation Claim P la in tif f complains that he is unable to purchase a stamp or have stamps mailed in but m u st buy a pre-stamped envelope which costs $1.00. According to Plaintiff, a stamp costs $ .4 4 and an envelope does not cost $.56 and, therefore, the jail is illegally taxing federally re g u la te d postage. Inmates have no constitutionally protected interest in purchasing goods available th ro u g h the jail let alone a constitutionally protected interest in not paying the tax or other p ro d u c tio n costs/fees associated with their desire to make such purchases. See Wolff v. M c D o n n e ll, 418 U.S. 539, 556 (1974) ( "[T]he fact that prisoners retain rights under the Due P r o c e ss Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed."). Cf. Jensen v. K le c kle r, 648 F.2d 1179, 1183 (8 th Cir. 1981) (holding that there was no basis for a due p ro c e ss claim where deduction from prisoner accounts for postage were "assessment[s] for v a lu e received" and plaintiffs did not contend that they did not receive the services for which 3 th e y were charged). Accordingly, the court concludes that neither the sale of postage-paid e n v e lo p e s nor the taxing or mark-up of other goods and services offered for sale or c o n su m p tio n at the county jail, without more, states a violation of an inmate's federally p ro te c te d constitutional rights. See Neitzke v. Williams, 490 U.S. 319, 234 (1989). Indeed, th e claim is patently absurd.2 C . The Access to Courts Claims P la in tif f complains that he is being denied access to the courts because the jail does n o t have a law library or adequate legal assistance. The law is well established that the f u n d a m e n ta l constitutional right of access to the courts requires prison authorities to provide p riso n e rs with adequate law libraries or adequate assistance from persons trained in law to p ro s e c u te both post-conviction proceedings and civil rights actions. Bounds v. Smith, 430 U .S . 817 (1977), Younger v. Gilmore, 404 U.S. 15 (1971). In Lewis v. Casey, 518 U.S. 343 (1 9 9 6 ), the Supreme Court concluded, however, that actual injury is required to state a claim f o r denial of access to the courts. Id. at 351-52. Such injury will be shown when an inmate c a n "demonstrate that a non-frivolous legal claim has been frustrated or was being im p e d e d ." Id. at 353. The Lewis Court disclaimed any expansions of the right of access to t h e court which suggested "that the State must enable the prisoner to discover grievances, a n d to litigate effectively once in court. . ." To demand the conferral of such sophisticated Certainly, the court is unaware of any basis under which an inmate should be afforded greater protection under the Constitution from taxation and/or cost mark-ups associated with the voluntary consumption of goods and services than is afforded an ordinary free-world citizen. 2 4 le g a l capabilities upon a mostly uneducated and indeed largely illiterate prison population is [not something] . . . the Constitution requires." Id. at 354. (emphasis in original). The Court likewise rejected the argument that the mere claim of a systemic defect, w ith o u t a showing of actual injury, presented a claim sufficient to confer standing. Lewis, 5 1 8 U.S. at 349. Moreover, Lewis emphasizes that a Bounds violation is related to the lack o f an inmate's capability to present claims. Id. at 356. "Bounds, which as we have said g u a ra n tee s no particular methodology but rather the conferral of a capability -- the capability o f bringing contemplated challenges to sentences or conditions of confinement before the c o u rts . When any inmate . . . shows that an actionable claim of this nature which he desired to bring has been lost or rejected, or that the presentation of such a claim is currently being p re v e n te d , because this capability of filing suit has not been provided, he demonstrates" the req u isite actual injury. Id. Finally, the Court discerned that the injury requirement is sa tisf ied only when an inmate has been denied "a reasonably adequate opportunity to file n o n f riv o lo u s legal claims challenging [his] convictions or conditions of confinement. . . . [ I]t is that capability, rather than the capability of turning pages in a law library, that is the to u c h sto n e ." Id. at 356-357. "[T]he Constitution does not require that prisoners ... be able to conduct generalized research, but only that they be able to present their grievances to the c o u rts - a more limited capability that can be produced by a much more limited degree of le g a l assistance." Id. at 360. The Court admonished that federal courts should allow prison o f f icia ls to determine the best method of ensuring that inmates are provided a reasonably 5 a d e q u ate opportunity to present their nonfrivolous claims of constitutional violations to the c o u rts . Id. at 356. A federal district court must "`scrupulously respect[] the limits on [its] ro le ,' by `not ... thrust[ing] itself into prison administration' and instead permitting `[p]rison a d m in is tra to rs [to] exercis[e] wide discretion within the bounds of constitutional req u irem en ts.' [Bounds, 430] U.S. at 832-833, 97 S.Ct. at 1500." Id. at 363. Plaintiff presents nothing to this court which demonstrates that he experienced adverse c o n se q u e n ce s or an actual injury from the alleged deprivations about which he complains a s such are contemplated in Lewis. Lewis, 518 U.S. at 349. Because Plaintiff's allegations f a il to articulate any "actual injury" accruing to him based on his contention that he has been d e n ie d access to the courts, this claim is due to be dismissed under the provisions of 28 U .S .C . 1915(e)(2)(B)(ii). I I . CONCLUSION A c c o rd in g ly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . Plaintiff's claims that he has been denied access to television and radio and that D e f en d a n ts are improperly taxing postage-paid envelopes be DISMISSED with prejudice p rio r to service of process pursuant to the directives of 28 U.S.C. 1915(e)(2)(B)(i); 2 . Plaintiff's claim that he is being denied access to the courts be DISMISSED prior to service of process pursuant to the directives of 28 U.S.C. 1915(e)(2)(B)(ii); 3. This case with respect to Plaintiff's claim that his First Amendment rights are b e in g violated by a denial of access to newspapers and magazines be referred back to the 6 u n d e rs ig n e d for further proceedings. It is further ORDERED that the parties shall file any objections to the Recommendation on or b e f o re January 28, 2010. Any objections filed must specifically identify the findings in the M a g is tra te Judge's Recommendation to which a party objects. Frivolous, conclusive or g e n e ra l objections will not be considered by the District Court. The parties are advised that th is Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a g is tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c k in g on appeal factual findings in the Recommendation accepted or adopted by the D is tric t Court except upon grounds of plain error or manifest injustice. Nettles v. W a in w r ig h t, 677 F.2d 404 (5 th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11 th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11 th Cir. 1981) (en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit Court o f Appeals handed down prior to the close of business on September 30, 1981. D o n e , this 14 th day of January 2010. /s/Terry F. Moorer TERRY F. MOORER U N IT E D STATES MAGISTRATE JUDGE 7

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