Barker v. Sheldon et al

Filing 61

ORDER denying 58 Plaintiff's "Motion to Reinstate all DCF, GEO and Liberty Defendants Who Were Dismissed Without Prejudice", construed as a Rule 60(b) motion. Signed by Judge Charlene E. Honeywell on 11/22/2011. (BGS)

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

Case No.

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

A. SIMMONS,
Defendant.
______________________________________
ORDER
I.
This matter comes before the Court upon Plaintiff's "Motion to
Reinstate All DCF, GEO and Liberty Defendants Who Were Dismissed
Without Prejudice” (Doc. #58, Motion), filed September 8, 2011.
Plaintiff submits in support of his Motion numerous exhibits. See
List of Exhibits (Doc. #59, Pl. Exhs. A-V).

Plaintiff, who is

civilly confined at the Florida Civil Commitment Center ("FCCC"),
asks the Court to reinstate the Defendants who were dismissed
without prejudice pursuant to the Court’s July 27, 2011 Order (Doc.
#56).

Plaintiff does not identify the procedural grounds upon

which he files the instant Motion. Nonetheless, because the Motion
was filed in excess of the thirty-day

limitation set forth in

Federal Rule of Civil Procedure 59,1 the Court construes the Motion
as brought under Federal Rule of Civil Procedure 60(b).

1

Even if the Court afforded Plaintiff the benefit of the
mailbox rule, Plaintiff did not deliver the Motion to FCCC
officials until September 6, 2011 for mailing. See Stamp stating
“Received Sep 06, 2011 Fl Civil Commitment Center” Doc. #58-1.

II.
Rule 60(b), Fed. R. Civ. P., permits a litigant to move for
relief from a final order for a number of reasons.

In particular,

Rule 60(b)(1) permits the court to grant relief on “just terms" due
to:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence could not have been discovered . .
.; (3) fraud . . . misrepresentation, or misconduct by an
opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released or discharged . .
.reversed or vacated; or (6) any other reason that
justifies relief.
Fed.

R.

Civ.

P.

60(b).

Relief

under

Rule

60(b)(6)

“is

an

extraordinary remedy which may be invoked only upon a showing of
exceptional circumstances.”

GJR Invs., Inc. V. Cnty. Of Escambia,

Fla., 132 F.3d 1359, 1369 (11th Cir. 1998)(citation omitted). Such
a showing requires the party to demonstrate that “absent such
relief, an ‘extreme’ and ‘unexpected’ hardship will result.”
Griffin v. Swim-Tech Corp., 722 F.2d 677, 680 (11th Cir. 1984)
(citation and quotation omitted).

Even if the circumstances are

“sufficiently extraordinary to warrant relief . . . whether to
grant the requested relief is a matter for the district court’s
discretion.”

Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir.

2006)(quotation and alteration omitted); see also United States v.
Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314,
1318 (11th Cir. 1997).

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III.
After liberally construing Plaintiff's pro se complaint, the
Court granted the respective motions to dismiss filed on behalf of
Defendants Liberty and The United States Postal Service, denied the
motion to dismiss filed on behalf of the GEO Group, Inc, George
Santana, Paul Pye and A. Simmons, but dismissed Defendants the GEO
Group, Paul Pye, and the Secretary of The Florida Department of
Children and Families pursuant to 28 U.S.C. § 1915.

Further, the

Court directed Defendant Simmons to file an answer to Plaintiff’s
Complaint.

See generally July 27, 2011 Order.

Plaintiff makes the following objections to the Court’s July
27, 2011 Order.
1.

Statute of Limitations

Plaintiff argues that the Court improperly deemed the emails
attached to Plaintiff’s response in opposition to Liberty’s motion
to dismiss as “irrelevant.”

Motion at 1.

Plaintiff argues in

great detail why he considers the emails relevant and contends
that, although dated between October 2005 and November 2005, the
emails are relevant to the instant action because under the mailbox
rule, Plaintiff’s Complaint was filed November 30, 2009, instead of
on December 7, 2009, the date the Complaint was received and
docketed by the Court.

Id. at 1-3.

The relevancy of the subject emails, or the relevancy of any
documents submitted by Plaintiff as exhibits to his response in

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opposition to Liberty’s motion or to his instant Motion, is a
nonissue.

The Court expressly pointed out that the subject emails

submitted

by

Plaintiff,

as

well

as

his

Affidavit,

were

not

considered by the Court in ruling on the pending motions to dismiss
because the Court “limits its consideration to the pleadings and
exhibits attached thereto. . . ” in ruling on a Rule 12(b)(6)
motion.

July 27, 2011 Order at 2, n.2 (citing Thaeter v. Palm

Beach County Sheriff’s Office, 449 F.3d 1342, 1352 n. 7 (11th Cir.
2006)).

Consequently, the Court finds no basis to reconsider its

July 27, 2011 Order on this ground.
2.

First Amendment/Access to Court Claim

The Court found that Plaintiff’s First Amendment access to
court claim failed as a matter of law because 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.”

July 27, 2011

Order at 13 (citing Lewis v. Casey, 518 U.S. 343 (1996)).
Plaintiff submits that the Court erred in dismissing his First
Amendment Access to Court claim because “he had at least one § 1983
Complaint dismissed . . . because of the [sic] failing to provide
a copy of his account statement . . . .”

Motion at 3.

Plaintiff

does not dispute that he did not allege an actual injury in his

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Complaint because he wanted “to keep his Complaint short and
concise” and because he “believed” “the Court would have already
realized this.”

Id.

Even in the instant Motion, Plaintiff does not provide the
Court with the case number which he contends was dismissed due to
his failure to comply with a filing deadline.

Further, it is not

the duty of the Court “to serve as de facto counsel for a party, or
to rewrite an otherwise deficient pleading in order to sustain a
cause of action.”

GJR Invs. v. County of Escambia, Fla., 132 F.3d

1359,

Cir.

1369

omitted).

(11th

3.

and

internal

citations

Nor is the Court supposed to speculate that Plaintiff

has been injured.
(2007).

1998)(citations

Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555

Thus, the Court denies Plaintiff relief on this ground.
First Amendment/Interference and Destruction of Mail

The Court found that Plaintiff’s First Amendment mail claims
alleging that Defendants, other than Defendant Simmons, were wholly
conclusory or failed to articulate a constitutional violation.
July 27, 2011 Order at 15-17.

In his Complaint, Plaintiff averred

only that Defendants Pye and Santana developed mail policies that
were “unlawful.”

Id. at 15.

With respect to Defendant GEO,

Plaintiff complained that GEO failed to provide an “outgoing mail
log” and developed an approved magazine list, which resulted in
certain of his publications being sent home.

Id. at 16. Plaintiff

attributed liability to Defendant Liberty on the basis that, at

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some point in time, Liberty developed an “approved magazines and
newspapers” list. Id. at 17.

Again, Plaintiff does not dispute

that his Complaint contained only conclusory allegations, or failed
to articulate a constitutional violation against the Defendants,
other than Defendant Simmons.

Motion at 3.

Instead, Plaintiff

argues that he was attempting to comply with Rule 8 and “made a
brief statement of the allegation in order to respect judicial
resources.” Id. In the instant Motion, Plaintiff seeks to clarify
his claims with additional facts and includes the language of the
various

policies

that

Plaintiff

contends

violates

his

constitutional rights.
The Court will not consider these additional facts or the
language of the policies because none of these newly raised facts
nor any of the language of the policies at issue were included in
Plaintiff’s

Complaint

dispositive motions.

at

the

time

the

Court

ruled

on

The Court explained the standards applied by

the Court in ruling on the respective dispositive motions.
27, 2007 Order at 7.

the

July

In order to survive a motion to dismiss, a

complaint must allege facts that, if true, “state a claim to relief
that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. ___,

129 S.Ct. 1937, 1949 (2009) (quotation omitted).

A claim is

plausible where the plaintiff alleges facts that “allow[ ] the
court to draw the reasonable inference that the defendant is liable
for

the

misconduct

alleged.”

Id.

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The

plausibility

standard

requires that a plaintiff allege sufficient facts “to raise a
reasonable expectation that discovery will reveal evidence” that
supports the plaintiff's claim.

Bell Atlantic Corp. v. Twombly,

550

statements,

U.S.

at

556.

Conclusory

without

more,

are

insufficient to show a right to relief. See Ashcroft, 556 U.S. at
___, 129 S.Ct. at 1949.
Plaintiff provided no facts in his Complaint to support his
allegations that the mail policies in effect at the FCCC were
unlawful.

Consequently, the Court finds this ground does not

warrant the Court reconsidering its July 27, 2011 Order.
Based upon the foregoing, the Court finds that Plaintiff fails
to demonstrate that the Court erred in its findings.

Any other

ground raised in Plaintiff’s motion to reinstate and not addressed
herein is also deemed to be without merit.
ACCORDINGLY it is hereby
ORDERED and ADJUDGED:
Plaintiff's "Motion to Reinstate All DCF, GEO and Liberty
Defendants

Who

Were

Dismissed

Without

Prejudice”

construed as a Rule 60(b) motion, is DENIED.

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(Doc.

#58),

DONE AND ORDERED at Fort Myers, Florida, on this 22nd day of
November, 2011.

SA: hmk
Copies to: All current and former parties of record

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