Barker v. Sheldon et al

Filing 56

ORDER granting 27 Defendant Liberty's Motion to Dismiss Plaintiff's Complaint. Plaintiff's Complaint is dismissed without prejudice as to Defendant Liberty; granting 39 The United States Postal Service's Motion to Dismiss. Plaintiff's Complaint is dismissed without prejudice as to Defendant the United States Postal Service and/or the Arcadia Postmistress; denying 41 Defendant GEO's Motion to Dismiss. Nonetheless, pursuant to 28 U.S.C. Section 1915, Defenda nts the GEO Group Inc., George Santana, and Paul Pye are dismissed, without prejudice, from the Complaint. Defendant Simmons only shall file an answer to Plaintiff's Complaint within TWENTY-ONE (21) DAYS from the date of this Order. The Secret ary of the Florida Department of Children and Families is dismissed without prejudice pursuant to 28 U.S.C. Section 1915. The Clerk is directed to correct the caption of the case to reflect that the case remains pending against Defendant Simmons ONLY. The Clerk is also directed to mail Plaintiff, along with this Order, a copy of the Order entered in Case No. 2:09-cv-799-36DNF at docket entry 34, as it was referenced in this Order. Signed by Judge Charlene E. Honeywell on 7/27/2011. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TOM BARKER,
Plaintiff,
vs.

Case No.

2:09-cv-795-FtM-36SPC

DAVID WILKINS,1 Secretary DCF;
LIBERTY
BEHAVIORAL
HEALTHCARE
CORP.;
GEO GROUP, INC.; JORGE
SANTANA; PAUL PYE; A. SIMMONS;
ARCADIA POSTMISTRESS,
Defendants.
_________________________________
ORDER
This matter comes before the Court upon the following motions:
(1) Defendant Liberty's Motion to Dismiss Plaintiff's Complaint
(Doc. #27, Liberty Motion); (2) The United States Postal Service's
Motion to Dismiss (Doc. #39, USPS Motion); and Defendants, GEO
Group Inc., George Santana, Paul Pye, and Ms. A. Simmons' Motion to
Dismiss (Doc. #41, GEO Motion).

Plaintiff filed responses in

opposition to the Liberty Motion (Doc. #35); the USPS Motion (Doc.

1

Pursuant to Rule 25(d)(1) of the Federal Rules of Civil
Procedure, David Wilkins, the current Secretary of the Florida
Department of Children and Families, is substituted as the proper
named Defendant for George Sheldon, the former Secretary of the
Florida Department of Children and Families ("DCF").

#44), and the GEO Motion (Doc. #46).2

This matter is ripe for

review.
I.
A.

Plaintiff's Complaint

Plaintiff, who is civilly confined at the Florida Civil
Commitment Center (FCCC) and is proceeding in forma pauperis, filed
this pro se action on a "Civil Rights Complaint Form for FCCC
Residents" (Doc. #1, Complaint) alleging violations of his First,
Fourth and Fourteenth Amendment rights. Complaint at 3. Plaintiff

2

Plaintiff attaches exhibits to his response in opposition to
the Liberty Motion (Doc. #35-1). The exhibits appear to be emails
between Plaintiff's mother and FCCC officials during October and
November 2005.
Plaintiff also attaches his Affidavit to his
response in opposition to the USPS motion (Doc. #44-1). Because
Defendants Liberty and the USPS filed motions to dismiss and not
motions for summary judgment, the Court will not consider either
Plaintiff's exhibits or his Affidavit. When deciding a motion to
dismiss, “the court limits its consideration to the pleadings and
exhibits attached thereto” and incorporated into the complaint by
reference. Thaeter v. Palm Beach County Sheriff's Office, 449 F.3d
1342, 1352 n. 7 (11th Cir. 2006) (internal marks omitted).
Moreover, the emails which Plaintiff attaches are irrelevant
to the instant action because they concern a time period that is
clearly barred by the four-year applicable statute of limitations.
See Burton v. City of Belle Glade, 178 F.3d 1175, 1188 (11th Cir.
1999); Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003).
Further, Plaintiff's Affidavit does not comport with the
requirements for an affidavit to be valid. An affidavit is "[a]
voluntary declaration of facts written down and sworn to by the
declarant before an officer authorized to administer oaths, such as
a notary public." Life Ins. Co. of N. America v. Foster, n.5 (D.
Ala. 2010)(citations omitted). The affidavit must be based on
personal knowledge, set forth facts that would be admissible in
evidence, and show that the affiant is competent to testify about
the matter therein. Fed. R. Civ. P. 56(e) (1) and Fed. R. Evid.
902(8).
-2-

brings this action against the following defendants: the Secretary
of Florida Department of Children and Families ("DCF"),3 Liberty
Behavioral Healthcare Corporations ("Liberty"); the GEO Group, Inc.
("GEO"); Jorge Santana, Business Manager for Liberty; Paul Pye,
Business Manager for GEO; Ms. A. Simmons, Mailroom Supervisor for
GEO; and the "Arcadia Postmistress."

Id. at 2-3. According to the

Complaint, "DCF has failed to lawfully promulgate administrative
rules pertaining to facility mail policies at [the] FCCC."
a

result,

Plaintiff

avers

that

"FCCC

contractors

Id. As

and

their

employees took it upon themselves to unlawfully hinder, seize,
and/or destroy [his] incoming and outgoing U.S. Mail."

Id.

The following factual allegations, which are accepted as true
at this stage of the proceedings, are set forth in the Complaint.
Defendants Santana and Pye developed the mail policies at the FCCC.
Id. at 3, ¶2.

Ms. Simmons did not follow FCCC policy and instead

"used her own personal predilections" when handling mail. Id., ¶3.
Ms. Simmons did not like Plaintiff. Id.

Ms Simmons would often

return incoming mail addressed to Plaintiff. Id., ¶4. Ms. Simmons

3

As of the date on this Order service has not yet been
effectuated upon DCF. Nonetheless, because pro se Plaintiff is
proceeding in forma pauperis (Doc. #8), and 28 U.S.C. §
1915(e)(2)(B)(i)-(iii) permits the Court "at any time" to dismiss
a case if the Court determines that the action is frivolous or
malicious, fails to state a claim upon which relief may be granted,
or seeks monetary damages against a defendant who is immune from
such relief, the Court also will review the allegations in the
Complaint to determine whether the Court will direct service upon
DCF.
-3-

returned one piece of Plaintiff's mail to "no return name, no
return address."

Id.

"Often policies were not posted and/or

changed regularly without notice." Id., ¶4.

"Without notice

Liberty/GEO began using exclusive lists of 'approved magazines and
newspapers' that would be allowed."
Plaintiff's

mail

and

Plaintiff.

removed

Id., ¶8.

Id., ¶7.

inserts

and

Ms. Simmons opened
clippings

sent

to

Ms. Simmons "sometimes" read Plaintiff's

legal mail, which had been "opened and resealed."

Id.

Mail from

Plaintiff's mother was held for days before being delivered to
Plaintiff.

Id.

Ms.

Simmons

would

not

sign

the

delivery

confirmation for Plaintiff's mail so Plaintiff could prove on what
date Plaintiff's mail was delivered to the FCCC.

Id.

Plaintiff also avers that Ms. Simmons does not mail outgoing
mail on the day it is delivered to her for mailing.

Id., ¶10.

Ms.

Simmons often would return mail back to a resident for no reason,
further delaying its delivery.

Id.

Plaintiff was required to

identify his outgoing mail as being sent from the "Florida Civil
Commitment Center."

Id. The FCCC does not provide an outgoing log

for legal mail and Ms. Simmons will not sign a "proof of mailing"
to confirm the date a resident provides her legal mail.

Id., ¶11.

Ms. Simmons and Mr. Pye implemented policies concerning how
residents can obtain their account statements or notary services,
which Plaintiff claims is "hindering residents' (including myself)
access to the courts."

Id., ¶12.

-4-

Plaintiff's mail was impeded or

destroyed "as a result of grievances."

Id., ¶13.

When "postal

authorities" called the Arcadia Postmistress to inquire as to the
mail

issues

with

the

FCCC,

the

Arcadia

Postmistress

told

authorities "[t]hat's a prison out there; they can do whatever they
want." Id., ¶14. Plaintiff contends that the Arcadia Postmistress
"has allowed her friendship with Ms. Simmons to violate her
duties."

Id.

As

relief,

Plaintiff

seeks various forms of

injunctive relief, as well as monetary damages.
B.

Id. at 5.

Liberty’s Motion (Doc. #27)

Defendant Liberty seeks dismissal pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failing to state a claim against
Liberty. See generally Liberty Motion. Liberty points out that it
is

only

mentioned

in

paragraph

7

of

the

Complaint,

wherein

Plaintiff states that "without notice Liberty/GEO began using
exclusive lists of 'approved magazines and newspapers' that would
be allowed," causing some of Plaintiff's magazines to be returned.
Id. at 3.

Liberty submits that this sole allegation does not rise

to the level of a constitutional violation.
contends

that

Liberty's

Motion

is

Id.

"premature."

Plaintiff
Plaintiff's

Response to Liberty Motion at 1.
C.

USPS' Motion (Doc. #39)

Defendant

the

United

States

Postal

Service

(USPS)

seeks

dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failing to state a claim against the USPS.
-5-

See generally USPS

Motion.

The USPS argues that the Complaint concerns the handling

of Plaintiff's mail at the FCCC, and the USPS has no control of
the mail once it is delivered to the facility.

Id. at 1.

The USPS

submits that the sole paragraph of the Complaint directed to the
Arcadia Postmistress - - that she allegedly referred to the FCCC as
a "prison" and stated that FCCC officials "could do whatever they
wanted" - - does not state a constitutional violation. Further, to
the extent Plaintiff is attempting to allege a claim under the
Federal

Tort

Claims

Act,

"claims

arising

out

of

the

loss,

miscarriage, or negligent transmission of letters or postal matter"
are exempt from the Act.

28 U.S.C. § 2680(b).

Plaintiff argues

that the Arcadia Postmistress is "misusing her position to cover
for the FCCC defendants and DCF."

Plaintiff's Response to USPS

Motion at 2.
D.

GEO’s Motion (Doc. #41)

Defendant GEO seeks dismissal of the Complaint on the grounds
that Plaintiff is improperly "attempting to use 28 U.S.C. § 2201 of
the Federal Declaratory Judgment Act (DJA) as his vehicle for
addressing his Due Process and Equal Protection claims." Motion at
2.

In response, Plaintiff refutes that he seeks relief under the

DJA and instead asserts that he brought this action pursuant to 42
U.S.C. § 1983, and seeks declaratory relief only as an additional
form of relief.

See generally Response.

-6-

II.
A.

Applicable Standards

A complaint need not provide detailed factual allegations, but
it must contain "sufficient factual matter" to state a claim that
is "plausible on its face."
S. Ct. 1937, 1949 (2009).
a

plaintiff

allege

Ashcroft v. Iqbal, 556 U.S. ____, 129

The plausibility standard requires that

sufficient

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.
556 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

Thus, “the-defendant-unlawfully harmed me accusation”

is insufficient.

Ashcroft, 129 S. Ct. at 1949. “Nor does a

complaint suffice if it tenders naked assertions devoid of further
factual enhancement.”

Id.

"Conclusory allegations, unwarranted

factual deductions or legal conclusions masquerading as facts will
not prevent dismissal."

Davila v. Delat Airlines, Inc., 326 F.3d

1183, 1185 (11th Cir. 2003).

The heightened pleading standard,

however, is no longer applicable to civil cases. Randall v. Scott,
610 F.3d 701, 705 (11th Cir. 2010). Additionally, pro se pleadings
are to be liberally construed and are not held to the same
stringent standard as pleadings drafted by an attorney. Tannenbaum
v. U.S. 148, F.3d 1262, 1263 (11th Cir. 1998).
Alternatively, because the Court previously determined that
the pro se Plaintiff may proceed in this action in forma pauperis
(Doc. #9), 28 U.S.C. § 1915(e)(2)(B)(i)-(iii), permits the Court
-7-

"at any time" to dismiss a case if the Court determines that the
action is frivolous or malicious, fails to state a claim upon which
relief

may

be

granted,

or

seeks

monetary

defendant who is immune from such relief.

damages

against

a

The standards that

govern a Rule 12(b)(6) dismissal apply when reviewing a claim under
28 U.S.C. §§ 1915A or 1915(e)(2)(B)(ii).

Douglas v. Yates, 535

F.3d 1316, 1320 (11th Cir. 2008). Additionally, a § 1915 dismissal
is warranted when the claim lacks arguable merit either in law or
fact.

Neitzke v. Williams, 490 U.S. 319, 325 (1989); Mitchell v.

Brown & Williamson Tobacco Corp., 294 F.3d 1309 (11th Cir. 2002);
Bilal v. Driver, 251 F.3d 1346 (11th Cir. 2001).
requires

dismissal

when

the

legal

theories

Moreover, § 1915
advanced

are

"indisputably meritless,” Nietzke, 490 U.S. at 327; when the claims
rely on factual allegations which are "clearly baseless" Denton v.
Hernandez, 504 U.S. 25, 32 (1992); or, when it appears that the
plaintiff has little or no chance of success.

Bilal, 251 F.3d at

1349.
B.

Applicable Law

This Court is cognizant that Plaintiff is civilly committed,
the FCCC is not a prison, and Plaintiff is not a prisoner.
Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).

The

Supreme Court has recognized that an individual who has been
involuntarily civilly confined has liberty interests under the Due
Process Clause of the Fourteenth Amendment that “require the State

-8-

to provide minimally adequate or reasonable training to ensure
safety and freedom from undue restraint.”
U.S. 317, 319 (1982).

Youngberg v. Romeo, 457

Thus, the Supreme Court has opined that, at

least in regards to certain aspects of their confinement, civil
detainees are afforded a higher standard of care than those who are
criminally committed.4

See Id. at 321-322; Dolihite v. Maughon, 74

F.3d 1027, 1041 (11th Cir. 1996)(holding that “persons subjected to
involuntary civil commitment are entitled to more considerate
treatment

and

conditions

of

confinement

than

criminals

conditions of confinement are designed to punish.”).

whose

See also

Lavender v. Kearney, 206 F. App'x 860, 863 (11th Cir. 2006).
Nonetheless,

case

constitutional

law

rights

relevant
afforded

to

defining

the

contours

of

to

prisoners

is

relevant

in

evaluating a claim brought by a person who is involuntarily civilly
committed.

Id.

Interference with an inmate's “legal mail” implicates an
inmate's right of access to courts and free speech as guaranteed by
the

First

and

Constitution.

Fourteenth

Amendments

of

the

United

States

Procunier v. Martinez, 416 U.S. 396, 412-13 (1974),

overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401,

4

In Youngberg, the issue was whether a severely retarded young
man had received proper treatment in a state facility. Id. at 309.
Although FCCC residents are similarly civilly confined, the reasons
for and purposes of their commitment is worthy of distinction.
-9-

413-14 (1989).5

It has long been noted that “censorship of

prisoner mail, whether incoming or outgoing, impinges on the
interest in communication of both the inmate and the nonprisoner
correspondent.”
(1974).

Saxbe v. Washington Post Co., 417 U.S. 843, 865

“Censorship” means either the direct practice of refusing

to deliver mail from prisoners to outside correspondents or vice
versa, as well as disciplining an inmate for writing “objectionable
letters.”

Taylor v. Sterrett, 532 F.2d 462, 469 (5th Cir. 1976)6

(explaining Martinez, 416 U.S. 396).

Additionally, the Supreme

Court recognizes that the prisoners' correspondents, as well as the
prisoners, have an interest in uncensored communication under the
First and Fourteenth Amendments.

Martinez 416 U.S. at 417.

With respect to outgoing non-attorney mail, jail officials may
review it and censor it if: (1) the practice furthers an important
or substantial governmental interest unrelated to the suppression
of expression; and (2) the limitation of First Amendment rights is
no greater than necessary or essential to protect the governmental
interest.

Id. at 412-13.

However, there must be a “delicate

5

Thornburgh, which involved only incoming mail, limited
Martinez to cases involving outgoing prison mail and overruled
Martinez to the extent it suggests a distinction between incoming
mail from prisoners and incoming mail from non-prisoners.
Thornburgh, 490 U.S. at 412-14.
6

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
-10-

balance” between prisoner's First Amendment rights and prison
administrators' discretion to govern the order and security of an
institution.

Id. at 404-05; Thornburgh v. Abbott, 490 U.S. 401,

407-08 (1989).
Prison

officials

are

afforded

more

leeway

in

regulating

incoming mail because of the greater security risks inherent in
materials coming into an institution. Thornburgh, 490 U.S. at 41617

(noting

the

broad

discretion

given

to

administrators

in

determining whether a publication should be permitted into an
institution).

Consequently, Turner is applicable to regulations

and policies regarding all incoming mail, and regulations and
policies

involving

incoming

mail

are

“valid

if

[they]

are

reasonably related to legitimate penological interests.” Turner v.
Safely, 482 U.S. 78, 89 (1987).
While inmates have a legal right to receive mail from their
counsel uncensored by prison officials, opening legal mail in the
presence of the inmate does not constitute “censorship” when the
mail is not read.

Wolff v. McDonnell, 418 U.S. 539, 577 (1974);

Lemon v. Dugger, 931 F.2d 1465, 1467 (11th Cir. 1991).

Thus, jail

inmates have a right under the First Amendment to have their
attorney mail, both incoming and outgoing, opened only in their
presence.

Al-Amin v. Smith, 511 F.3d 1317, 1333-34 (11th Cir.

2008)(holding that opening attorney mail outside inmate's presence

-11-

violates inmate's free speech rights even if there is no resulting
injury).
Additionally,

prison

officials

forward mail to inmates promptly.

have

a

responsibility

to

Bryan v. Werner, 516 F.2d 233,

238 (3d Cir. 1975). Allegations that mail delivery was delayed for
an inordinate amount of time are sufficient to state a claim for a
violation of the First Amendment.

Antonelli v. Sheahan, 81 F.3d

1422, 1432 (7th Cir. 1996). However, a temporary delay or isolated
incident of delay does not violate a prisoner's First Amendment
rights.

Crofton v. Roe, 170 F.3d 957, 961 (9th Cir. 1999)(policy

of diverting publications through property room reasonably related
to prison's interest in inspecting mail for contraband).
In

the

civil

commitment

context,

the

district

court

in

California held that “any restrictions on [a civil detainee's]
First Amendment rights to send and receive mail must be nonpunitive.”

Robinson v. Joya, Case No. 1:08-cv-1339-JLS, 2010 WL

890437, at *7 (E.D. Ca. 2010)(citing Hydrick, 500 F.3d at 989;
Jones, 393 F.3d at 932).
a

plaintiff

must

show

To show that restrictions are punitive,
“that

the

challenged

restrictions

are

expressly intended to punish, the restrictions serve a non-punitive
purpose but are nonetheless excessive, or that the legitimate
purpose could be accomplished with less restrictive or harsh
methods.”

Id. (citing Jones, 393 F.3d at 932; Bell, 441 U.S. at

539).

-12-

III.
Liberally construing the Complaint, it appears that Plaintiff
is attempting to assert: (1) a First Amendment access to court
claim stemming from the unspecified FCCC policies governing how
residents can obtain their resident account statements and/or
availability of notary services; and, (2)

First and Fourteenth

Amendment violations in connection with the opening of Plaintiff's
mail, the delay in sending and delivering Plaintiff's mail, and the
FCCC's adoption of regulations governing publications.
1.

First Amendment/Access to Court

The Court finds that Plaintiff's access to the court claim as
stated fails as a matter of law.

Lewis v. Casey, 518 U.S. 343

(1996); Bounds v. Smith, 430 U.S. 817 (1977); Chandler v. Baird,
926

F.2d

1057

(11th

Cir.

1991).

The

Complaint

contains

no

allegations that the failure to provide notary services, the delay
in providing Plaintiff with a copy of his FCCC resident account, or
any interference with Plaintiff's legal mail caused Plaintiff harm
or prejudiced Plaintiff in a criminal appeal, post-conviction
matter, or in a § 1983 action.

Lewis, 518 U.S. at 349-351.

Moreover, a plaintiff cannot establish the “injury” element, which
is required to state an access to the court claim, unless the case
that plaintiff was unable to pursue had arguable merit.
353; Wilson, 163 F.3d 1291.

Id. at

Consequently, the Court will dismiss

-13-

Plaintiff's First Amendment access to court claim against all
Defendants without prejudice.
2.

First Amendment/Interference With Mail

A.

The GEO Defendants

The Court finds Defendant GEO's Motion premised on the DJA to
be wholly without merit.

Consequently, the Court denies Defendant

GEO's Motion to Dismiss for the same reasons previously stated in
the Court's July 6, 2011 Order (Doc. #34) entered in case number
2:09-cv-799-36DNF.

Nonetheless,

in

the

interest

of

judicial

economy and in order to expedite the disposition of this matter,
the Court will review the Complaint pursuant to § 1915 as to each
of the GEO Defendants.
Defendant Simmons
Accepting all allegations as true, the Court finds that the
Complaint states a First Amendment claim concerning the alleged
interference with Plaintiff's mail against Defendant Simmons.
Complaint

contains

Plaintiff's

allegations

incoming

mail

that

from

Defendant

family

members

Simmons
and

The

opened

destroyed

newspaper clippings contained in the envelopes from family members,
opened Plaintiff's legal mail outside his presence, and delayed the
delivery of both Plaintiff's outgoing and incoming mail. Thus, the
Court will direct Defendant Simmons to file an answer to the
Complaint.

-14-

Defendants Pye and Santana
Plaintiff states that Defendants Pye and Santana developed the
mail policies in effect at the FCCC.
conclusory
"unlawful."

terms,
Id.

Plaintiff

avers

Complaint at 3.
that

these

In purely

policies

were

Plaintiff, however, does not provide the wording

of the policies, nor does Plaintiff claim that the policies
developed by Pye and Santana were the “moving force” behind the
alleged

misconduct

of

Ms.

Simmons.

See

Board

of

County

Commissioners v. Brown, 117 S. Ct. 1382, 1388 (1997); McDowell v.
Brown, 392 F.3d 1283 (11th Cir. 2004).

In fact, the Complaint

expressly states that Defendant Simmons "developed her own policies
to follow," and chose not to follow the FCCC mail policies.
Complaint at 3.

Consequently, the Complaint fails to state a

claim as to Defendants Pye and Santana under 28 U.S.C. § 1915.
Defendant GEO
The Complaint generally references acts by "GEO employees,"
but does not specify which employees committed such acts.

To the

extent that Plaintiff attempts to hold GEO vicariously liable for
the acts of its employees, the law is well settled that there is no
respondent superior or vicarious liability for a § 1983 claim.
Marsh v. Butler County, 268 F.3d 1014, 1035 (11th Cir. 2001).
Alternatively, it appears that Plaintiff predicates liability
upon GEO for failing to provide an "outgoing log for legal mail"
and for developing an approved list of magazines, which resulted in
-15-

Plaintiff not being reimbursed for having to mail magazines to his
mother's home.

Complaint at 4, ¶¶7, 11.

The Court is unaware of

any constitutional mandate that requires an institution to provide
detainees with a log identifying each piece of legal mail.

A

regulation affecting the First Amendment rights of prisoners to
receive and possess “publications” is valid if the regulation is
“reasonably related to legitimate penological interests.”

Owen v.

Willie, 117 F.3d 1235, 1237 (11th Cir. 1997)(quoting Thornburgh,
490 U.S. at 413).

Indeed, regulations impacting First Amendment

rights are subjected to a type of rational basis test.7
The fact that the FCCC promulgated a regulation to restrict
the entry of publications into the FCCC does not, in and of itself,
state a constitutional claim.

See Thornburg, 490 U.S. 401 (there

is clearly no per se bar to censorship of incoming prisoner's
mail).

Plaintiff fails to identify the wording of the FCCC policy

and instead claims only that it is "constitutionally unacceptable."

7

The analysis of the constitutionality of regulations involving
publications considers the following Turner factors: 1) whether the
regulation is intended to further a “legitimate and neutral”
government objective; 2) whether the regulation is in fact
rationally related to that objective; 3) whether the regulation
requires officials to make “individualized” determinations with
regard to prohibiting each “issue” or whether it simply makes
“blanket” prohibitions of certain publications; 4) whether, “an
alternative means of exercising the right” is available; 5) “the
impact that accommodation of the asserted constitutional right will
have on others" in the institution; and, 6) whether the regulation
is an “exaggerated response” to the administration's concerns.
Thornburgh, 490 U.S. at 413-419.
-16-

Plaintiff does not identify the FCCC regulation governing the
magazine policy adopted by GEO.

Nor does Plaintiff identify which

of his publications were rejected as a result of the policy.
Consequently, Plaintiff's generalized legal conclusions are not
sufficient to prevent dismissal.
326

F.3d

at

1185.

Davila v. Delta Airlines, Inc.,

Consequently,

the

Court

will

dismiss

the

Complaint without prejudice as to Defendant GEO.
B.

Defendant Liberty

Similar to Defendant GEO, the only allegation as to Defendant
Liberty is that Liberty was a contractor for DCF and at some point
in time developed an "approved magazines and newspapers" list.
Complaint at 4.

Because the Complaint is completely devoid of any

factual allegations in support of this claim, the Court will
dismiss the Complaint without prejudice as to Defendant Liberty for
the same reasons previously stated as to Defendant GEO.
C.

Arcadia Postmistress

To the extent discernible,8 it appears that Plaintiff is
attempting to allege that the Arcadia Postmistress conspired with
Defendant Simmons to deprive Plaintiff of his mail. Obstruction of
the U.S. Mail is governed by 18 U.S.C. § 1701, and obstruction of
mail correspondence is governed by 18 U.S.C. § 1702.

The Court

finds that Plaintiff fails to state a claim for conspiracy to

8

The Court is unable to determine the exact nature of the claim
brought against the Arcadia Postmistress.
-17-

violate 18 U.S.C. §§ 1702 and 1708 because there is no private
right of action under these penal statutes governing criminal
offenses for obstruction and theft of mail. Sections 1702 and 1708
are penal statutes governing criminal offenses, and no private
right of action exists under either of these criminal statutes.
Schowengerdt v. General Dynamics Corp., 823 F.2d 1328 (9th Cir.
1987); Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d
97 (2d Cir. 1981).
In the alternative, 42 U.S.C. § 1985(3) provides a claim for
damages for any party injured by "two or more persons in any State"
who conspires to deprive the party "of the equal protection of the
laws."

However, the United States has not waived its sovereign

immunity in claims brought under the Civil Rights Act.

Beale v.

Blunt, 461 F.2d 1133, 1137 (5th Cir. 1972).9
Similarly, the United States has not waived sovereign immunity
and cannot be sued for any "tort claims arising out of activities
of the Postal Service."
484-85

(2006).

conspiracy
maintain

to

a

dismissed

Thus,
violate

claim

as

Dolan v. U.S. Postal Serv., 546 U.S. 481,

to

a

under
the

Plaintiff

cannot

federal

criminal

the

Arcadia

FTCA,

and

allege

his

Postmistress.

a

statute

claim
and

Complaint
Fed.

R.

for

cannot
must

be

Civ.

P.

12(b)(6); Iqbal, 129 S.Ct. at 1949-50; and, Twombly, 550 U.S. at
555-57, 570.

9

See footnote 6, supra.
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D.

Secretary, DCF

There are no allegations that the Secretary was in any way
directly or causally connected to the constitutional violations
alleged in the Complaint.

See Brown v. Crawford, 906 F.2d 667, 671

(11th Cir.), cert. denied 500 U.S. 933 (1990). Additionally, there
is no vicarious liability, including respondeat superior, in § 1983
actions.

Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-692

(1978); Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003);
Quinn v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003);
Farrow v. West, 320 F.3d 1235 (11th Cir. 2003).

Further, the

Eleventh Amendment bars monetary damages against the Secretary of
DCF in his official capacity, as such action is construed as being
brought against the State. Will v. Michigan Dept. of State Police,
491 U.S. 58, 71 (1989).

Consequently, pursuant to § 1915, the

Court dismisses the Secretary of DCF from the Complaint.
ACCORDINGLY it is hereby
ORDERED:
1.

Defendant

Liberty's

Motion

to

Dismiss

Plaintiff's

Complaint (Doc. #27) is GRANTED, and Plaintiff's Complaint is
dismissed without prejudice10 as to Defendant Liberty.

10

“Where a more carefully drafted complaint might state a
claim, a plaintiff must be given at least one chance to amend the
complaint before the district court dismisses the action with
prejudice.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001)
(quotation and alteration omitted).
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2.

The United States Postal Service's Motion to Dismiss

(Doc. #39) is GRANTED, and Plaintiff's Complaint is dismissed
without prejudice as to Defendant the United States Postal Service
and/or the Arcadia Postmistress.
3.

Defendant GEO's Motion to Dismiss (Doc. #41) is DENIED.

Nonetheless, pursuant to 28 U.S.C. § 1915, Defendants the GEO Group
Inc.,

George

Santana,

and

prejudice, from the Complaint.

Paul

Pye

are

dismissed,

without

Defendant Simmons only shall file

an answer to Plaintiff's Complaint within twenty-one (21) days from
the date on this Order.
4.

The Secretary of the Florida Department of Children and

Families is dismissed without prejudice pursuant to 28 U.S.C. §
1915.
5.

The Clerk of Court shall correct the caption of the case

to reflect that the case remains pending against Defendant Simmons
only.
6.The Clerk of Court shall mail Plaintiff, along with this
Order, a copy of the Order entered in Case No. 2:09-cv-799-36DNF at
docket entry 34, as it was referenced in this Order.
DONE AND ORDERED at Fort Myers, Florida, on this 27th day of
July, 2011.

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SA: hmk
Copies: All Parties of Record

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