Lewis v. Charlotte Correctional Institution Employees et al
Filing
181
OPINION AND ORDER granting 145 Motion to Dismiss for Failure to State a Claim. All official capacity claims for monetary damages are dismissed with prejudice; all other claims are dismissed for failure to state a claim; with no remaining claims o r defendants, the case is dismissed. Alternatively, the Third Amended Complaint is dismissed as a sanction for abuse of the judicial process. See Opinion and Order for details. The Clerk shall enter judgment accordingly, terminate any pending motions (terminated: 180 Motion for Reconsideration), and close the case. Signed by Judge John E. Steele on 9/19/2013. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JONATHAN KYLE LEWIS,
Plaintiff,
v.
Case No:
2:10-cv-547-Ftm-29DNF
SECRETARY, DOC and JOHN E.
POTTER,
Defendants.
____________________________/
OPINION AND ORDER
This matter comes before the Court upon review of the file.
Jonathan Kyle Lewis (“Plaintiff”), a prisoner currently confined
at
Florida
State
Prison
in
Raiford,
Florida,
initiated
this
action by filing a civil rights complaint pursuant to 42 U.S.C.
§ 1983 (Doc. 1, filed September 3, 2010).
Plaintiff's Third
Amended Complaint is presently before the Court (Doc. 95, filed
October 3, 2012).
Plaintiff's Third Amended Complaint relates
to events surrounding the distribution and collection of mail at
Charlotte Correctional Institution in Charlotte County, Florida.
Plaintiff
names
Michael
D.
Crews,
Secretary
of
the
Florida
Department of Corrections (“Defendant Secretary”) and John E.
Potter,
Postmaster
General
(“Defendant
Postmaster”)
as
defendants.
Defendant
Secretary
has
filed
a
motion
to
dismiss
Plaintiff's Third Amended Complaint in its entirety for failure
to state a claim.
Plaintiff has not filed a response to the
motion, despite being granted one extension of time in which to
do so.1
I.
The motion is ripe for review.
LEGAL STANDARDS
a.
Standard of review for a motion to dismiss
On a motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light
most
favorable
to
the
plaintiff.
Jackson
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
v.
BellSouth
Further, this
Court favors the plaintiff with all reasonable inferences from
the allegations in the complaint. Stephens v. Dep't of Health &
Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)("On a motion
to
dismiss,
the
facts
stated
in
[the]
complaint
reasonable inferences therefrom are taken as true.").
and
all
However,
the Supreme Court explains that:
While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's
obligation to provide the grounds of his
entitlement to relief requires more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of
1
Plaintiff sought additional extensions of time to respond,
arguing that he wished to wait until Defendant Postmaster filed
his own motion to dismiss before responding (Doc. 171).
In
denying Plaintiff's motion, the Court noted that Plaintiff had
filed numerous other pleadings during the time he had to respond
and that there was no guarantee that Defendant Postmaster would
file a motion to dismiss (Doc. 172). Even so, the Court granted
a two-week extension, and Plaintiff was cautioned that no
further extensions would be granted. Id.
2
action will not do. Factual allegations must
be enough to raise a right to relief above
the speculative level.
Bell
Atl.
Corp.
(2007)(internal
v.
Twombly,
citations
550
U.S.
omitted).
544,
Further,
54491
U.S.
585
are
not
courts
"bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
In
the case of a pro se action, the Court should construe the
complaint
more
liberally
than
it
would
pleadings
drafted
by
lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).
b.
Standards under 28 U.S.C. § 1915A
Because Plaintiff filed this action against a governmental
entity
and
employees
of
a
governmental
entity
while
incarcerated, the Court is required to screen his action under
28 U.S.C. § 1915A(b). Section 1915A provides that:
The court shall review . . . a complaint in
a civil action in which a prisoner seeks
redress
from
a
governmental
entity
or
officer
or
employee
of
a
governmental
entity. . . . On review, the court shall . .
. dismiss the complaint, or any portion of
the
complaint,
if
the
complaint
is
frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
seeks monetary relief from a defendant who
is immune from such relief.
28 U.S.C. § 1915A(a), (b)(1) & (2). Section 1915A requires that
prisoner complaints be screened in the same manner as under §
1915(e)(2)(B)
paid.
Martin
regardless
v.
of
Scott,
whether
156
3
the
F.3d
filing
578,
fee
579
has
(5th
been
Cir.
1998)(recognizing
prisoner
that
against
§
1915A
certain
“applies
government
to
any
officials
suit
or
by
a
entities
regardless of whether that prisoner is or is not proceeding
IFP.”).
In
essence,
§
1915A
is
a
screening
process
to
be
applied sua sponte and at any time during the proceedings.
The phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical phrase in
Federal
Rule
standards
of
that
Civil
apply
Procedure
to
a
12(b)(6).
dismissal
under
Therefore,
Fed.
R.
the
Civ.
P.
12(b)(6) apply to a dismissal under § 1915A(b)(1). See Leal v.
Georgia
Dep’t
of
2001)(noting
that
language
28
in
Corr.,
the
U.S.C.
254
F.3d
language
§
in
1276,
§
1278–79
1915A(b)(1)
1915(e)(2)(B)(ii),
which
(11th
Cir.
mirrors
the
tracks
the
language in Rule 12(b)(6)).
II.
BACKGROUND
a.
Procedural History
Plaintiff initiated this action by filing a complaint with
this Court on September 3, 2010 (Doc. 1). Plaintiff did not
proceed in forma pauperis and paid his filing fee on September
20, 2010. Plaintiff filed an amended complaint on March 11, 2011
(Doc. 56).
Plaintiff filed his second amended complaint on June
13, 2011 (Doc. 62).
Plaintiff filed a third amended complaint
on October 3, 2012 (Doc. 95).
4
On July 29, 2013, Defendant Secretary filed a motion to
dismiss Plaintiff’s Third Amended Complaint (Doc. 145).
In the
motion, Defendant Secretary argued, inter alia, that the Third
Amended Complaint should be dismissed because Plaintiff had not
fully disclosed his litigation history (Doc. 145 at 15). On
August 6, 2013, the Court ordered Plaintiff to show cause why
his Third Amended Complaint should not be dismissed for his
failure
to
reveal
his
prior
litigation
history
(Doc.
168).
Plaintiff did not respond to the Court’s show cause order.
Plaintiff was ordered to respond to Defendant Secretary’s
motion to dismiss by August 20, 2013 (Doc. 145).
The time for
Plaintiff's response was extended until September 3, 2013, and
in the order granting the extension, Plaintiff was warned that
no
further
granted
extensions
(Doc.
172).
of
time
Plaintiff
to
file
did
not
a
response
file
a
would
be
response
to
Defendant Secretary’s motion to dismiss, instead filing twentyfour unrelated “Affidavits of Jonathan Lewis” or “Notic[es] to
the Court”. (Docs. 147-165, 175-179.)
5
b.
Complaint2
In his third amended complaint, Plaintiff alleges that he
has sent several complaints to the Postmaster General over the
years alleging that state officials “constantly violate [his]
mail” in violation of his right to association (Doc. 95 at ¶ 2).
Plaintiff alleges that he has spoken to several other inmates
who assert that these violations have been ongoing “for years.”
2
The facts, as alleged in the Third Amended Complaint are
accepted as true.
However, the complaint is disjointed, with
certain
paragraphs
presenting
an
incoherent
and
jumbled
narrative that fails to articulate specific acts by the
defendants that Plaintiff believes give rise to constitutional
violations. For example, paragraph 19 alleges in its entirety:
The time is each prison on the shift routine
mail and publications is passed out and when
routine mail is picked up by the officers
and the place is Okeechobee CI, Charlotte
CI, Florida State Prison, and Union CI and
the date is each day at each prison when
mail and publications is dealt with by the
mailroom of the officers and each prison has
the shift this happens and the mailroom is
there on the administrative shift which is
at Okeechobee CI 6am to 2pm and Charlotte CI
7am to 3pm and Florida State Prison 8am to
4pm and Union CI 8am to 4pm and the mail is
picked at Okeechobee on the 2pm to 10pm
shift and Charlotte CI 3pm to 11pm and
Florida State prison and Union CI 8am to 4pm
shift.
(Doc. 95 at ¶ 19.)
The Court will not speculate as to the
constitutional
violations
Plaintiff
is
alleging
in
the
incoherent
portions
of
his
Third
Amended
Complaint.
Accordingly,
to
the
extent
Plaintiff
intended
to
raise
additional claims or allege additional facts not considered by
the Court in this Order, such claims are dismissed pursuant to
Rules 8 and 12 of the Federal Rules of Civil Procedure and 28
U.S.C. § 1915A(b)(1).
6
Id. at ¶ 4.
Plaintiff has also read other lawsuits against the
FDOC regarding mail service. Id. at ¶ 6.
Plaintiff
protection
asserts
that
state
inmate
for
constitutional
rights.
Id.
the
lack
mail
at
¶
of
is
5.
a
“Code
Title
violation
Specifically,
of
39”
his
Plaintiff
alleges that Code 39 does not authorize “the state officials to
assume the duties of the post office because the state officials
don’t know that they can go to jail for mail and publication
violations that is on purpose in which resulted in ongoing mail
and publications violations[.]” Id. at ¶ 7.
Plaintiff alleges that the officers at the prisons do not
have authority to deal with incoming mail, and that his First
Amendment
rights
are
violated
by
the
officers’
handling
of
Plaintiff's incoming and outgoing mail (Doc. 95 at ¶¶ 8, 9, 11).
Plaintiff
also
alleges
that
the
FDOC
improperly
rejects
or
impounds mail, in violation of Plaintiff's First Amendment right
to association. Id. at ¶ 10.
Plaintiff asserts that “the state
officials on several occasions at Charlotte CI and other prison
I [sic] been to they are violating my mail and publications and
there is nothing my snitching nigger ass can do about it because
I can only send and receive what they let me.” Id. at ¶ 30.
Accordingly, Plaintiff asserts that the officers at the prisons
should no longer be allowed to touch his mail. Id. at ¶ 13.
7
Plaintiff alleges that there is no paper trail for incoming
and outgoing mail which is a violation of his First Amendment
rights (Doc. 1 at ¶ 12).
Plaintiff also argues that his First
Amendment rights are violated because “all mail needs to be
opened
in
the
presence
of
the
inmate
to
prevent
mail
and
publication theft and lies [about] inmates by employees[.]” Id.
at ¶ 14.
Plaintiff
asserts
that
the
mailroom
charges
inmates
for
legal mail and for mail that is sent to Florida addresses (Doc.
95
at
¶¶
15,
16).
Plaintiff
alleges
that
“all
legal
and
privilege[d] mail is suppose[d] to be sent on a list with a
paper trail and this is a violation of my U.S. Constitution 1st
Amendment right to association since I never receive the legal
and privilege mail I sent out for.” Id. at ¶ 17.
Plaintiff alleges that he has wasted money on stationary,
pens, paper, envelopes, and stamps because the state officials
throw his mail away.
Plaintiff also claims that state officials
are “taking contents out of it then sending it out, putting
foreign
liquids
on
it,
tearing
the
papers
in
the
envelope,
scratching my name off with a pen and putting another name on
the letter/envelope at the Charlotte CI [.]” (Doc. 95 at ¶ 18).
Plaintiff asserts that the FDOC does not take mail and
publication violations seriously, nor will they admit that it is
a “real problem” so the officials continue to steal his mail and
8
publications (Doc. 95 at ¶ ¶ 23, 25).
Because there are no laws
to protect his mail, there is nothing to stop the officers from
abusing their power. Id. at ¶ 28.
Plaintiff asserts that all mail must be sealed in his face
to prevent the violation of his First Amendment rights and that
his
constitutional
rights
are
violated
because
“inmates
see
outgoing mail first since I am the one putting it out and see
incoming mail and publications last.” (Doc. 95 at ¶¶ 27, 29).
Plaintiff argues that the mail policy at Charlotte Correctional
Institution serves no penological interest and is a violation of
the standards of decency. Id. at ¶ 31.
As relief, Plaintiff seeks: a declaration from Defendants
stating that the violations are ongoing and explaining why no
action was taken sooner; a declaration of Plaintiff's rights and
the
corrections
the
postmaster
will
do
to
ensure
that
Plaintiff's rights are protected; a jury trial on the merits of
Plaintiff's case; all other relief the Court deems necessary;
all fees associated with filing the case; a permanent injunction
stating that the postmaster general must investigate the FDOC
and go to each prison to talk with inmates and submit reports to
the court; an investigation of the Florida Administrative Code
to determine whether the mail and publication rules of the code
provide the FDOC an opportunity for the state officials to steal
Plaintiff's
mail
and
publications;
9
a
permanent
injunction
stating that the Florida Department of Corrections must meet
with the postmaster general, the Florida Attorney General, the
United States Department of Justice, the United States Senate,
the
United
States
House
of
Representatives,
the
governor
of
Florida, and the Florida Department of Law enforcement to pass
laws in Florida and in other states to ensure that state inmates
have Title 39 protection; a permanent injunction stating that
the
Postmaster
General
will
take
complaints
from
inmates
seriously; a permanent injunction stating that state officials
will no longer handle inmate mail; a permanent injunction that
state officials will take seriously grievances dealing with mail
and publications; a permanent injunction that state officials
will
not
lie
to
reject
or
impound
mail
and
publications;
a
permanent injunction stating that the Postmaster General will
formally warn the FDOC that misconduct dealing with mail and
publications
will
result
in
serious
administrative
action;
a
permanent injunction stating that the FDOC will no longer place
liens on inmate accounts for legal mail and will still send out
extremely
heavy
mail;
a
preliminary
injunction
stating
that
Plaintiff is excused from exhausting his issues until thirty
days after being notified of a deficiency; a refund of all money
spent on stationary, stamps, envelopes, paper, and pens since
January 19, 2004; a permanent injunction stating that officials
from the FDOC may no longer touch Plaintiff's mail; a permanent
10
injunction
stating
that
there
will
be
a
paper
trail
on
all
outgoing legal and privileged mail and on all routine mail; a
permanent
injunction
requiring
the
postmaster
general
to
investigate every prison in the United States to ensure that
“nothing illegal is happening with mail and publications and do
reports etc. every four months.” (Doc. 95 at 16-20).
c.
Defendant Secretary’s Motion to Dismiss
Defendant
Secretary
has
filed
a
motion
to
dismiss
Plaintiff's Third Amended Complaint on the grounds that: (1)
Plaintiff's
claims
against
FDOC
employees
are
frivolous;
(2)
Plaintiff has failed to exhaust his administrative remedies in
regard to his claims that the Florida Department of Corrections
should
have
Plaintiff's
different
conclusory
rules
concerning
allegations
inmate
regarding
mail;
FDOC
(3)
employee
handling of his mail fail to state a claim upon which relief may
be granted; (4) any claim for monetary damages is barred by the
Eleventh Amendment; (5) Plaintiff has failed to state a claim
for the violation of his right to free association under the
First Amendment; and (6) Plaintiff failed to fully disclose his
litigation
history
and
did
not
comply
with
Court
orders
regarding his numerous “emergency” pleadings (Doc. 145).
III. ANALYSIS
To state a claim under § 1983, a plaintiff must allege
that: (1) a violation of a specific constitutional right or
11
federal
statutory
provision;
(2)
was
committed
by
a
person
acting under color of state law. Doe v. Sch. Bd. of Broward
County, Fla., 604 F.3d 1248, 1265 (11th Cir. 2010).
Construing
Plaintiff's claims in a liberal fashion, the Court determines
that he seeks damages and injunctive relief from the defendants
because (1) state FDOC officials, rather than federal postal
employees,
charged
are
postage
allowed
on
his
to
handle
legal
his
and
mail;
(2)
non-legal
he
has
mail;
(3)
been
his
incoming and outgoing mail has been tampered with or destroyed;
and (4) his incoming and outgoing mail is subject to inspection
outside of his presence.
a.
Plaintiff's
claims
for
monetary
Defendant Secretary and Defendant
barred by sovereign immunity
relief
against
Postmaster are
Plaintiff has sued both defendants in their official and
individual capacities (Doc. 95 at 1).
In his prayer for relief
Plaintiff seeks, inter alia, monetary relief as compensation for
money he has spent on mail supplies and on legal fees pursuing
this case (Doc. 95 at ¶ 18). Defendant Secretary argues that,
because the Florida Department of Corrections (“FDOC”) is an
agency of the State of Florida, any claim for monetary damages
is barred by the Eleventh Amendment (Doc. 145 at 12).
agrees
that
Plaintiff's
claims
for
monetary
either defendant are subject to dismissal.
12
The Court
damages
against
Plaintiff's official capacity claims for damages against
Defendant
Secretary
are
barred
by
the
Eleventh
Amendment.
“Absent a legitimate abrogation of immunity by Congress or a
waiver
of
immunity
by
the
state
being
sued,
the
Eleventh
Amendment is an absolute bar to suit by an individual against a
state or its agencies in federal court.” Gamble v. Fla. Dep't of
Health and Rehabilitative Servs., 779 F.2d 1509, 1511 (11th Cir.
1986); Will v. Mich. Dep't of State Police, 491 U.S. 58, 66
(1989)(“Section 1983 provides a federal forum to remedy many
deprivations
of
civil
liberties,
but
it
does
not
provide
a
federal forum for litigants who seek a remedy against a State
for
alleged
Amendment
deprivations
bars
such
of
suits
civil
unless
liberties.
the
State
The
has
Eleventh
waived
its
immunity, or unless Congress has exercised its undoubted power
under
§
5
immunity.”
employee
in
of
the
(citations
his
or
Fourteenth
Amendment
omitted)).
her
official
A
suit
capacity
to
override
against
is
deemed
a
that
state
a
suit
against the state for Eleventh Amendment purposes. Will, 491
U.S. at 71; Gamble, 779 F.2d at 1512 (holding that the Eleventh
Amendment “will bar damage awards against state officers sued in
their
official
capacities
in
suits
brought
in
federal
court
pursuant to 42 U.S.C.A. § 1983.”).
As Plaintiff's official capacity claims against Defendant
Secretary seek monetary relief against the State of Florida,
13
which
is
monetary
immune
damages
from
against
such
relief,
Defendant
Plaintiff's
Secretary
in
claims
his
for
official
capacity are dismissed for failure to state a claim. Fed. R.
Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(2).3
Likewise,
Defendant
Plaintiff's
Postmaster
must
official
capacity
also
dismissed.
be
claims
against
Plaintiff's
lawsuit against John E. Potter, in his official capacity as the
Postmaster General, is a lawsuit against his agency, the United
States Postal Service. See Kentucky v. Graham, 473 U.S. 159,
165-66 (1985). In Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme
Court
held
that
a
person
injured
by
a
violation
of
his
constitutional rights by a federal agent may bring an action for
damages against the agent.4 In this action, Plaintiff seeks to
bring
a
Bivens
constitutional
claim
for
damages
against
3
Generally, injunctive relief against the State may be available
in a suit challenging the constitutionality of a state
official’s action or the state official’s violation of federal
law. See Ex Parte Young, 209 U.S. 123 (1908); Edelman v. Jordan,
415 U.S. 651 (1974). However, to the extent that Plaintiff now
claims Defendant Secretary is subject to injunctive relief due
to a violation of state law, such a claim would be barred by
Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984).
4
Because 42 U.S.C. § 1983 applies only to state, not federal,
actors, an action against Defendant Postmaster is not cognizable
under § 1983. However, given that Plaintiff filed his complaint
as a pro se litigant, the Court will liberally construe his
claims against the Postmaster General as an attempt to state a
cause of action under Bivens.
14
Defendant Postmaster in his official capacity, which is merely a
claim against the United States Postal Service. In F.D.I.C. v.
Meyer, 510 U.S. 471, 484-86 (1994), the Supreme Court held that
a
Bivens
action
does
not
lie
against
a
federal
agency.
The
Postal Service is an “independent establishment of the executive
branch of the Government of the United States,” and it retains
its governmental status. U.S.P.S. v. Flamingo Indus.(USA), Ltd.,
540 U.S. 736, 744 (2004). Accordingly, the holding of Meyer is
applicable to the United States Postal Service and it bars the
claims for damages that Plaintiff asserts against the Postal
Service
Defendant
in
this
action.
Postmaster
General
All
in
claims
his
for
damages
official
against
capacity
are
dismissed for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(2).
b.
Under federal and state rules, prison officials are
allowed to collect and deliver inmate mail
Plaintiff asserts that the FDOC officers at the prisons
have no authority to deal with incoming mail and that his First
Amendment rights are violated by the officers’ handling of his
incoming and outgoing mail (Doc. 95 at ¶¶ 8,9,11,20).
Plaintiff
claims that, because “nothing authorizes state officials to deal
with mail[,] the post office is supposed[d] to be passing it out
and picking it up from our hand[.]” Id. at ¶ 20. Plaintiff also
asserts that the FDOC has no rules for handling mail, and as a
15
result
the
officers
“do
as
they
want
with
mail
and
publications.” (Doc. 95 at ¶¶ 9, 11).
In
response,
Defendant
Secretary
submits
that
state
officials may act as agents of the United States Postal Service
regarding delivery of an inmate’s mail pursuant to United States
postal
regulations
which
clearly
allow
a
correctional
institution to deliver mail in accordance with the institution’s
rules
(Doc.
145
at
6-7).
Defendant
also
notes
that
Florida
Statute § 944.09(1)(g) requires the FDOC to promulgate rules
relating to the delivery of mail which are set forth in the
Florida
Administrative
Code
(Doc.
145
at
7).
A
review
of
federal and state regulations regarding the delivery of mail at
prisons supports Defendant’s position.5
Pursuant
to
section
274.96
of
the
United
States
Postal
Service Administrative Support Manual:
Authorized personnel of prisons, jails, or
other correctional institutions, under rules
and
regulations
promulgated
by
the
institution, may open, examine, and censor
5
The court can take judicial notice of facts that are not
subject to reasonable dispute. Fed. R. Evid. 201(b). These facts
are generally known within the territorial jurisdiction of the
court or they are capable of ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Id. The
Court is satisfied that the material contained in the United
States Postal Operations Manual, The United States Postal
Service
Administrative
Support
Manual,
and
the
Florida
Administrative Code contain adjudicative facts that are “not
subject to reasonable dispute” and are “capable of accurate and
ready determination.” Id. Accordingly, the Court takes judicial
notice of these documents.
16
mail sent from or addressed to, an inmate of
the institution. An inmate may designate in
writing an agent outside the institution to
receive his or her mail, either through an
authorized address of the agent, if the mail
is so addressed, or at the delivery Post
Office serving the institution, if the mail
is
addressed
to
the
inmate
at
the
institution.
§
274.96
(2009)
(emphasis
added).
Moreover,
the
Postal
Operations Manual of the United States Post Office states that
“[m]ail addressed to inmates at institutions is delivered to the
institution authorities who, in turn, deliver the mail to the
addressee under the institution’s rules and regulations.” United
States Postal Operations Manual § 615.1 (2009).
In addition, contrary to Plaintiff's assertions otherwise,
the
Florida
Administrative
Code
provides
extensive
rules
regarding how state prisons must handle the inmate’s incoming
and outgoing legal and routine mail. See Fla. Admin. Code R. 33210.101 (Routine Mail); 33-210.102 (Legal Mail).
Accordingly,
any
unauthorized
claim
based
upon
FDOC
prison
official’s
delivery and collection of mail lacks a factual basis and is
dismissed for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(B)(1).
c.
Plaintiff is not entitled to free postage
Plaintiff
asserts
that
his
constitutional
rights
are
violated because he is charged postage for first class letters
to Florida addresses and because liens are placed on prisoner
17
accounts
for
the
costs
of
legal
mail
(Doc.
95
at
¶
15).
Defendant Secretary asserts that any argument by Plaintiff that
he is exempt from paying for his legal postage despite having
ample
funds
in
his
inmate
account
is
“frivolous
and
merits
dismissal as such without further discussion.” (Doc. 145 at 8
n.4).
upon
The Court concludes that Plaintiff has not stated a claim
which
relief
may
be
granted
in
regards
to
the
prison
charging postage costs for legal or routine mail.
Pursuant to the Florida Administrative Code, an indigent
inmate is provided free postage for one first class routine
letter
per
month.
Fla.
Admin.
Code
R.
33-210.101(17).
Any
argument that a prisoner’s First Amendment rights are violated
by the prison’s provision of only one free letter per month for
non-legal mail was foreclosed by the Eleventh Circuit in Van
Poyck
v.
Singletary,
106
F.3d
1558,
1559
(11th
Cir.
1997)
(“[L]imiting indigent prisoners to writing materials and postage
for
one
letter
per
prisoners
do
have
mail.”).
Accordingly, because indigent prisoners do not have a
not
month
a
is
right
not
to
unconstitutional,
free
postage
for
since
nonlegal
right to unlimited free postage for non-legal mail, any claim
based upon such an assumption fails as a matter of law and
warrants dismissal.
Nor has Plaintiff stated a claim that his constitutional
rights were violated due to the prisons’ requirement that he pay
18
for
legal
postage.
In
regards
to
legal
mail,
the
Florida
Administrative Code states:
The institution shall furnish postage for
[legal mail], for pleadings to be served
upon each of the parties to a lawsuit and
for mailing a complaint to the Florida Bar
concerning ineffective assistance of counsel
in the inmate’s criminal case for those
inmates who have insufficient funds to cover
the cost of mailing the documents at the
time the mail is submitted to the mailroom,
but not to exceed payment for the original
and two copies except when additional copies
are legally required.
§
33-210.102(10)(a)(emphasis
added).
The
Code
further
states
that a lien will be placed on an inmate’s account “to recover
postage costs when the inmate receives funds.” Id.
In
Bounds
determined
that
v.
Smith,
“indigent
the
United
inmates
must
States
be
Supreme
provided
at
Court
state
expense with paper and pen to draft legal documents[,] with
notarial services to authenticate them, and with stamps to mail
them.” 430 U.S. 817, 824-25 (1977), overruled on other grounds,
Lewis v. Casey, 518 U.S. 343, 354 (1996).
However, Plaintiff
has not alleged that he was indigent at the time he filed his
complaint or at any relevant time he mailed a legal letter.6
Hargrove
v.
Henderson,
Case
No.
95-1601-CIV-T-17A,
1996
See
WL
467516 at *10 (M.D. Fla. 1996) (“[I]t is beyond question that
6
Plaintiff wrote his original Complaint on September 3, 2010
(Doc. 1).
At the time Plaintiff filed his first complaint, he
had $5,967.03 in his prisoner account. See Doc. 32-1.
19
Plaintiff has no right to free postage when he has the financial
ability to pay his own way.”). Moreover, § 33-210.102(10)(a)
does not deny any prisoner the right to send or receive legal
mail; rather, all legal mail is accepted for posting and a lien
is
created
against
the
mailing legal documents.
prisoner’s
account
for
the
costs
of
The FDOC has fulfilled its affirmative
duty under Bounds to provide indigent prisoners access to the
courts. See Hoppins v. Wallace, 751 F. 3d 1161, 1162 (11th Cir.
1985)(determining that the rights of prisoners must be balanced
with
budgetary
constraints
and
noting
that
states
are
not
required “to pay the postage on every item of legal mail each
and every prisoner wishes to send.”)(quoting Twyman v. Crisp,
584 F.2d 352, 259 (10th Cir. 1978)).
Accordingly, Plaintiff's
claim that his constitutional rights were violated because the
prison did not provide him with free legal postage warrants
dismissal for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(1).
d.
Plaintiff has not stated a claim for a constitutional
violation of his right to send or receive mail
Plaintiff
violations
generally
[have]
been
asserts
going
on
that
“mail
for
Correctional Institution (Doc. 95 at ¶ 9).
and
years”
at
publication
Charlotte
He also asserts that
“[t]he mailroom in the Florida D.O.C. lies to reject or impound
mail and publications[.]” Id. at ¶ 10. Plaintiff alleges that
20
the officials mishandle his outgoing mail by throwing it away,
taking its contents out, putting foreign liquids on it, tearing
the papers in the envelope and scratching his name off with a
pen and putting another name on the letter (Doc. 95 at ¶ 18).
He states that he has “experience[d] this on several occasions,”
but provides no specific dates or instances of mail tampering
(Doc. 95 at ¶ 10).
Defendant Secretary argues that Plaintiff has not stated a
claim under the standards set forth in Ashcroft v. Iqbal because
he makes nothing but vague and conclusory allegations against
officials at the prison (Doc. 145 at 10).
Defendant Secretary
argues that Plaintiff has not provided any specific instances or
dates of alleged tampering or identified any official who has
done anything improper with Plaintiff's mail (Doc. 145 at 11).
Finally, the defendant asserts that Plaintiff's lack of detail
“forecloses the possibility of responding to Plaintiff's Third
Amended
Complaint
with
an
Answer,
as
Plaintiff's
general
conclusory allegations cannot be meaningfully investigated or
verified by Defendant Crews.” (Doc. 145 at 11). The Court agrees
that Plaintiff has not stated a claim upon which relief may be
granted.7
7
To the extent that Plaintiff now asserts that the mere handling
of his mail by a prison official amounts to “tampering,” such a
claim
is
without
merit
because
federal
and
state
law
21
1.
Plaintiff
has
not
satisfied
the
pleading
requirements of Rule 8 of the Federal Rules of
Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires
that a plaintiff include a “short and plain statement of the
claim
showing
that
the
pleader
is
entitled
to
relief[.]”
Although Plaintiff is not required to provide detailed factual
allegations,
his
second
amended
complaint
fails
to
provide
enough facts, which, if accepted as true, would raise his right
to relief above a speculative level or state a plausible claim
for relief. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at
678.
Plaintiff's claims against any particular person, much
less Defendant Secretary and Defendant Postmaster General, are
too
conclusory
and
vague
to
satisfy
Rule
standards set forth in Twombly and Iqbal.
8
or
the
pleading
Indeed, Plaintiff
fails to allege a single specific unconstitutional act committed
by any specific individual.
2.
Plaintiff
destroyed,
Plaintiff has not stated a claim for respondeat
superior liability against Defendant Secretary or
Defendant Postmaster
generally
damaged,
(Doc. 195 at ¶ 18).
or
alludes
otherwise
that
prison
improperly
officials
handled
his
have
mail
To the extent that Plaintiff now argues that
the defendants are vicariously liable for the actions of the
specifically provide for prison officials to handle inmate mail.
See discussion supra Part III(b).
22
prison
officials,
such
a
claim
fails
as
a
matter
of
law.
Supervisory officials cannot be held liable under § 1983 for the
unconstitutional
actions
of
their
subordinates
based
upon
respondeat superior liability. Gray ex rel. Alexander v. Bostic,
458
F.3d
Servs.,
1295
436
superior
(11th
U.S.
is
Cir.
658,
2006);
691–95
inapplicable
to
Monell
v.
Dep't
(1978)(doctrine
§
1983
of
of
Social
respondeat
actions).
Instead,
supervisors can be held personally liable only when: (1) the
supervisor personally participates in the alleged constitutional
violation;
actions
or
of
(2)
the
violation. Id.
there
is
supervisor
a
causal
and
the
connection
alleged
between
constitutional
Plaintiff does not claim that either defendant
was personally involved in tampering with his mail.
Plaintiff
the
must
show
a
“causal
connection”
Therefore,
between
the
defendants’ actions and the alleged constitutional violations.
Such a causal connection may be established by showing that a
supervisory
official
implemented,
or
allowed
to
continue,
an
official policy or unofficial policy or custom under which the
violation
occurred.
(11th Cir. 1986).
Zatler
v.
Wainwright,
802
F.2d
397,
401
Plaintiff must show that the supervisor's
knowledge amounted to deliberate indifference to the asserted
harm or risk in that his knowledge was “so pervasive that the
refusal to prevent harm rises to the level of a custom or policy
23
of depriving inmates of their constitutional rights.” Tittle v.
Jefferson County Comm'n, 10 F.3d 1535, 1541–42 (11th Cir. 1994).
Plaintiff does not point to a specific custom or policy
that
deprived
him
of
his
constitutional
rights,
but
argues
instead that “all mail needs to be opened in the presence of the
inmate to prevent mail and publication theft and lies on inmates
by
the
employees
compliance
with
since
the
I
U.S.
have
a
right
Constitution.”
to
association
(Doc.
95
at
¶
in
14).
Plaintiff also makes the general assertion that “[a]ll mail must
be sealed in [sic] me and other inmates face to discontinue the
violations of my U.S. Constitution 1st Amendment” (Doc. 95 at ¶¶
14, 27). Neither assertion implicates an unconstitutional policy
of the FDOC or the United States Post Office. Specifically, the
Florida Administrative Code has two provisions that deal with
FDOC official’s ability to inspect mail.
i.
Florida
Under Florida Administrative Code Rule 33210.102(8)(d), all legal mail must be opened
in the presence of the recipient inmate
Administrative
Code
Rule
33-210.102(8)(d)
specifically provides that “[a]ll incoming legal mail will be
opened
in
the
correspondence
presence
is
unauthorized items.
read.”
of
legal
the
inmate
to
mail
and
that
determine
it
that
the
contains
no
Only the signature and letterhead may be
The Code further states that “[i]nmates shall present
all outgoing legal mail to the mail collection representative to
24
determine,
in
the
presence
of
the
inmate,
that
the
correspondence is legal mail, bears that inmate’s return address
and
Fla.
signature,
Admin.
and
Code
that
R.
it
contains
no
items.”
Accordingly,
33-210.102(8)(g).
unauthorized
to
the
extent Plaintiff alleges that the FDOC rules regarding prison
handling of legal mail are unconstitutional because the rules do
not require that the mail be handled in the presence of an
inmate, such a claim lacks a factual basis and is without merit.
See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Al-Amin v.
Smith, 511 F.3d 1317 (11th Cir. 2008).
Moreover, “[w]hile a prisoner has a right to be present
when his legal mail is opened . . . an isolated incident of mail
tampering is usually insufficient to establish a constitutional
violation
.
.
.
Rather,
officials
‘regularly
and
the
inmate
must
unjustifiably
show
that
interfered
prison
with
the
incoming legal mail.’” Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2003) (citations and quotations omitted); Al-Amin v. Smith,
511 F.3d 1317, 1334 (11th Cir. 2008)(a state prison's “pattern
and
practice”
of
opening
attorney
mail
outside
the
inmate's
presence impinges upon the inmate's right to freedom of speech).
Plaintiff has not provided facts of any specific instance in
which his own, or any other inmate’s, legal mail was opened
outside of his or the inmate’s presence, much less a “custom or
policy of depriving inmates of their constitutional rights” in
25
this regard. Tittle, 10 F.3d at 1541-42. Because Plaintiff fails
to allege that either defendant “regularly and unjustifiably”
opened
his
legal
outside
with
interfered
mail
his
legal
constitutional
claim
for
a
of
his
mail,
presence
he
violation
of
or
otherwise
has
not
stated
his
First
a
Amendment
right to send or receive legal mail.
ii.
Next,
in
Because Plaintiff has no constitutional
right to send or receive non-legal mail
without FDOC review, Florida Administrative
Code
Rule
33-201.101(5)
is
not
unconstitutional
contrast
to
the
Florida
Administrative
Code
provision pertaining to legal mail, Rule 33-201.101(5) states
that
“[a]ny
examined,
routine
and
employee.”
included
is
mail
subject
sent
or
to
received
being
shall
read
by
be
a
opened,
designated
The Code specifically lists items that may not be
in
incoming
or
outgoing
routine
mail
including
correspondence that encourages or instructs in the commission of
criminal activity or material that may be considered obscene.
Fla. Admin. Code R. 33-201.101(11).
Prisoners have a First Amendment right to send and receive
mail.
See
However,
a
Thornburgh
prison
v.
may
Abbot,
adopt
490
U.S.
regulations
401,
that
407
(1989).
impinge
on
a
prisoner’s First Amendment rights as long as the regulations are
“reasonably
related
to
legitimate
penological
Turner v. Safley, 482 U.S. 78, 89 (1987).
26
interests.”
The Turner standard
applies
to
regulations
concerning
incoming
prisoners. Thornburgh, 490 U.S. at 413.
that the FDOC
incoming
and
mail
received
by
The Court concludes
practice of inspecting a prisoner’s non-legal
outgoing
mail
is
reasonably
related
to
a
penological interest under Turner.
Four
factors
are
considered
in
determining
the
reasonableness of a prison regulation: (1) whether there is a
“‘valid, rational connection’ between the prison regulation and
the legitimate governmental interest put forward to justify it”;
(2) “whether there are alternative means of exercising the right
that
remain
open
to
prison
inmates”;
(3)
“the
impact
accommodation of the asserted constitutional right will have on
guards
and
resources
other
inmates
generally”;
and
and
on
(4)
the
allocation
of
prison
the
“absence
of
ready
alternatives”, or, in other words, whether the rule at issue is
an ‘exaggerated response’ to prison concerns.”
Turner, 482 U.S.
at 89–90 (citations omitted).
Notably, Rule 33-201.101(5) does not prohibit inmates from
sending or receiving non-legal mail, it only requires that the
mail be inspected for illegal or otherwise prohibited material.
However, Plaintiff does not argue that the rules prohibiting
objectionable material are unconstitutional; rather, he argues
that the prison officials should never inspect his non-legal
27
mail outside his presence.
Accordingly, it is to this assertion
that the Court will apply the Turner test.
A prison has a legitimate security interest in opening and
inspecting
incoming
mail
to
inspect
potentially damaging material.
for
contraband
or
other
See Pell v. Procunier, 417 U.S.
817, 823 (1974)(“[C]entral to all other corrections goals is the
institutional
consideration
of
internal
corrections facilities themselves.”).
security
within
the
Requiring each item of
outgoing or incoming non-legal mail to be sealed or opened in
front of the prisoner would increase the burden on prison staff
and “make it more difficult for the already overworked staff and
inspectors
ensuring
to
a
accomplish
safe
and
their
secure
other
prison
responsibilities
environment.”
Perry
in
v.
Secretary, Fla. Dep’t of Corr., 664 F.3d 1359, 1366 (11th Cir.
2011).
Finally, neither Rule 33-201.101(5) nor the prison’s
practice of inspecting non-legal mail outside of the inmate’s
presence
Plaintiff
is
an
has
“exaggerated
not
pointed
response”
“to
to
some
prison
obvious
concerns.
regulatory
alternative that fully accommodates the asserted right while not
imposing more than a de minimis cost to the valid penological
goal.” Overton v. Bazzetta, 539 U.S. 126, 136 (2003) (citing
Turner,
482
U.S.
at
90-91).
Accordingly,
neither
Rule
33-
201.101(5), nor the inspection of an inmate’s non-legal mail
28
outside
his
or
her
presence,
violates
a
prisoner's
constitutional rights under the test set forth in Turner.
Moreover, although the constitutionality of inspecting nonlegal
mail
outside
of
an
inmate’s
presence
has
not
been
addressed by the Eleventh Circuit, other circuit courts have
held that, while prison officials are constitutionally required
to open legal mail in the presence of the recipient inmate, no
such requirement exists where the identification of the sender
does not give rise to a reasonable belief that such material is
legal mail and there is no marking indicating that such mail is
confidential. See, e.g., Gassler v. Wood, 14 F.3d 406, 408 n.5
(8th Cir. 1994)(prison officials do not commit constitutional
violations
by
opening
non-legal
mail
outside
of
an
inmate’s
presence); Martin v. Brewer, 830 F.2d 76, 77 (7th Cir. 1987)(as
a general rule, inmate mail can be opened and read outside the
inmate's presence unless it is marked as legal mail); Altizer v.
Deeds, 191 F.3d 540 (4th Cir. 1999)(the opening and inspecting
of an inmate’s outgoing mail is reasonably related to legitimate
penological interests and therefore, does not violate the First
Amendment); see also Witherow v. Paff, 52 F.3d 264, 265-66 (9th
Cir. 1995) (upholding inspection of outgoing mail); Smith v.
Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991)(upholding inspection
29
of incoming mail); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir.
1986)(upholding inspection of outgoing and incoming mail).8
Plaintiff
has
not
alleged
that
either
defendant
was
personally involved in any specific instance of mail tampering.
Nor has Plaintiff shown that either defendant implemented, or
allowed
to
continue,
an
unconstitutional
regarding the handling of inmate mail.
or
illegal
policy
Accordingly, Plaintiff's
claims against Defendant Secretary and Defendant Postmaster are
dismissed for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 8, 12(b)(6); 28 U.S.C. § 1915A(b)(1).
8
Although Plaintiff does not attack any other specific provision
of the Florida Administrative Code regulating his incoming and
outgoing mail, the Court notes that the Florida mail provisions
have generally been recognized as satisfying the Turner
standards. See, e.g., Perry v. Secretary, Florida Dep’t of Corr,
664 F.3d 1359 (11th Cir. 2011) (FDOC rule prohibiting inmates
from soliciting pen pals was rationally related to a legitimate
penological interest and so did not violate the First
Amendment); Daniels v. Harris, Case No. 3:11-cv-45(CAR), 2012 WL
3901646 (M.D. Ga. 2012) (postcard-only mail policy did not
violate constitutional rights); Wood v. Vartianen, Case No.
2:02-cv-626-29DNF, 2005 WL 2291723 (M.D. Fla. 2005) (FDOC rule
providing for the exclusion of sexually explicit photographs
mailed to a state prison inmate was reasonable and satisfied the
Turner standards); Richards v. England, Case No. 2:07-cv-75829SPC, 2008 WL 5110793 at *1, 5 (M.D. Fla. 2008) (no
constitutional
violation
on
rule
prohibiting
photographs
depicting scantily clad women); Hall v. Singletary, 999 F.2d
1537 (11th Cir. 1993) (prison rules prohibiting correspondence
between inmates at different facilities does not violate the
Turner rules).
30
e.
Plaintiff's Third Amended Complaint is subject to
dismissal due to Plaintiff's failure to reveal his
prior litigation history
Defendant Secretary urges that Plaintiff's complaint should
be
dismissed
Plaintiff's
for
abuse
failure
to
of
the
reveal
judicial
his
process
litigation
based
history
on
upon
his
civil rights complaint form and because of his willful noncompliance
with
orders
of
this
9
Court
(Doc.
145
at
15-16).9
Defendant Secretary argues that Plaintiff's insistence on
filing
“emergency”
pleadings
despite
the
Court’s
orders
instructing Plaintiff not to do so unless a true or legal
emergency exists, warrants dismissal of Plaintiff's Third
Amended Complaint for abuse of the judicial process (Doc. 125 at
3, 21).
Specifically, Defendant notes that Plaintiff was
directed to file an amended complaint on the pre-printed civil
rights complaint form (Doc. 44).
Plaintiff did not comply,
instead filing an “Emergency Amended Complaint” on February 3,
2011 (Doc. 51). The Court struck the complaint, determined that
the complaint did not constitute an emergency, and warned
Plaintiff that “improperly designating a motion or pleading as
an ‘emergency’ may result in sanctions.” (Doc. 54). On May 13,
2011, Plaintiff filed an “Emergency Motion to Amend/Correct” his
amended complaint (Doc. 58).
Plaintiff's motion to amend was
granted, but the Court noted that the motion was not an
emergency, and Plaintiff was cautioned that he would be
sanctioned in the future if he continued to designate his
pleadings as “emergency” filings (Doc. 59).
Plaintiff filed
another “Emergency Motion” on August 1, 2011, seeking copies of
the record (Doc. 66).
The Court directed the Clerk to strike
the motion as an improper “emergency” filing and as duplicative
of another motion (Doc. 70).
Plaintiff filed an “Emergency
Notice of Inquiry” on June 11, 2012 and a second “Emergency
Notice of Inquiry” on June 18, 2012 (Docs. 87, 89).
Plaintiff
filed an “Emergency Belated Motion” for an extension of time to
file an amended complaint on June 29, 2012 (Doc. 91) and
“Emergency Notice to the Clerk” on August 13, 2012 (Doc. 93).
Plaintiff filed an “Emergency Notice of Change of Address” on
December 26, 2012 (Doc. 99). Plaintiff was again cautioned to
only designate pleadings as an emergency when there is a true
emergency (Doc. 100). Plaintiff filed “Emergency” notices to the
31
Plaintiff was ordered to respond to this particular ground for
dismissal by August 16, 2013, but has failed to do so (Doc.
168).
Plaintiff signed his Third Amended Complaint on March 23,
2012 (Doc. 95).
Plaintiff was questioned in Section III(A) of
the complaint form whether he had initiated other lawsuits in
federal court dealing with similar facts or otherwise relating
to his conditions of imprisonment. Id. at 3.
“no”,
but
Florida
failed
Florida
listed
Case
to
No.
report
Case
on
the
complaint
form
3:11-cv-818-MMH-TEM.
that
Nos.
he
had
also
Id.
filed
3:11-cv-383-TJC-MCR
and
Plaintiff checked
Middle
District
However,
Middle
of
Plaintiff
District
of
2:10-cv-705-CEH-DNF
and Southern District of Florida Case No. 0:11-cv-61243-WPD.
Plaintiff also did not honestly answer Section III(D) of
the Complaint which asked whether he had initiated lawsuits or
appeals
in
federal
court
that
were
dismissed
as
frivolous,
Clerk on January 28, 2013, February 8, 2013, March 11, 2013,
March 18, 2013, and March 25, 2013 (Docs. 107, 108, 109, 112,
116).
He filed an “Emergency” notice to the U.S. Marshal’s
Office on March 19, 2013 (Doc. 115). Each of the notices were
stricken due to Plaintiff's improper labeling of the notices as
an emergency (Doc. 119).
Although the Court notes that Plaintiff's continued
designation of his pleadings as “emergency” in the absence of a
true or legal emergency indicates a measure of vexatious
conduct, the Court declines to dismiss his Third Amended
Complaint on this ground.
See Flaksa v. Little River Marine
Const. Co., 389 F.2d 885 (5th Cir. 1968) (recognizing that
dismissal of a complaint for failure to abide by court orders is
a drastic remedy limited to only the most vexatious conduct).
32
malicious, or failed to state a claim upon which relief may be
granted (Doc. 95 at 3).
Plaintiff wrote “N/A” in response to
this question even though he has had four actions or appeals in
federal court dismissed as frivolous, malicious, or for failure
to state a claim upon which relief may be granted.
District
barred
of
by
Florida
Florida
the
Case
Southern
Case
statute
No.
No.
of
0:11-cv-60762
limitations;
0:11-cv-60762
District
of
was
Florida
was
Case
dismissed
No.
as
as
District
Southern
dismissed
Southern
of
duplicative;
0:11-cv-61243
was
dismissed for failure to state a claim upon which relief could
be granted.
On July 27, 2011, the Eleventh Circuit dismissed
Plaintiff's
interlocutory
appeal
as
frivolous
information
to
the
(Case
No.
10-
14910-C; Doc. 34).
Providing
false
court
is,
in-and-of
itself, a valid ground for dismissing a complaint. See Redmon v.
Lake County Sheriff's Office, 414 F. App’x 221, 226 (11th Cir.
2011)(prisoner's
failure
constituted
of
abuse
dismissal
of
his
Tompkins,
197
pro
F.
to
judicial
se
App’x
§
disclose
process
1983
818,
819
previous
warranting
action);
(11th
see
Cir.
lawsuit
sanction
also
Hood
of
v.
2006)(upholding
dismissal based on abuse of judicial process for failing to
disclose prior litigation and holding that “the district court
was
correct
to
conclude
that
to
allow
[plaintiff]
to
then
acknowledge what he should have disclosed earlier would serve to
33
overlook his abuse of the judicial process.”); Shelton v. Rohrs,
406
F.
App’x
340,
341
(11th
Cir.
2010)(upholding
district
court’s dismissal noting that “[e]ven if [Plaintiff] did not
have access to his materials, he would have known that he filed
multiple previous lawsuits.”); Young v. Secretary Fla. for Dep’t
of Corr., 380 F. App’x 939, 941 (11th Cir. 2010) (same);
In
court's
Redmon,
the
dismissal
Eleventh
of
a
Circuit
complaint
affirmed
based
upon
the
the
district
plaintiff's
misrepresentation of his litigation history, noting abuse of the
judicial process. 414 F. App’x at 225. The court stated that
“[u]nder
engaged
28
in
U.S.C.
bad
§
faith
1915,
“[a]
finding
litigiousness
or
that
the
plaintiff
manipulative
tactics
warrants dismissal.” Id. (citing Attwood v. Singletary, 105 F.3d
610, 613 (11th Cir. 1997)).
The Eleventh Circuit explained that
a district court “may impose sanctions if a party knowingly
files a pleading that contains false contentions,” and although
pro
se
pleadings
are
held
to
less
stringent
standards,
“a
plaintiff's pro se status will not excuse mistakes regarding
procedural rules.” Id. (citing McNeil v. United States, 508 U.S.
106, 113 (1993)). Finding no abuse of discretion, the Eleventh
Circuit noted that plaintiff failed to disclose a prior lawsuit,
but had been afforded an opportunity to show cause, just as in
the
present
case,
as
to
why
his
complaint
should
not
be
dismissed. The Eleventh Circuit affirmed the district court's
34
decision
in
“concluding
that
Plaintiff's
explanation
for
his
failure to disclose the lawsuit-that he misunderstood the formdid not excuse the misrepresentation and that dismissal without
prejudice was a proper sanction.” Id. at 226.
In the instant case, Plaintiff did not answer this Court’s
order to show cause, but did aver in an unrelated motion for an
extension of time that he could not respond to the Court’s show
cause
order
173).10
Eleventh
without
a
copy
of
his
original
This argument is unavailing.
Circuit
affirmed
a
complaint
(Doc.
In Shelton v. Rohrs, the
district
court's
dismissal
of
a
complaint without prejudice under 28 U.S.C. § 1915(e)(2)(B)(i)
for abuse of the judicial process because of the plaintiff's
failure to disclose his litigation history. 406 F. App’x at 340.
The court noted that “[e]ven if Shelton did not have access to
his
materials,
he
would
have
known
that
he
filed
multiple
previous lawsuits.” Id. at 341; see also Pinson v. Grimes, 391
F. App’x 797, 799 (11th Cir. 2010)(“Even if [Plaintiff] did not
have access to his legal materials when he filed his complaint,
he would have known he had filed two other cases within the
previous month.”).
Likewise, Plaintiff knew at the time he
filed his Third Amended Complaint that he had filed several
complaints
in
federal
courts
and
10
had
several
other
cases
A courtesy copy of Plaintiff's original complaint was mailed
to him on August 12, 2010 (Doc. 170).
35
dismissed as frivolous, malicious, or as failing to state a
claim upon which relief may be granted.
In fact, Plaintiff's
interlocutory appeal to the Eleventh Circuit (Case No. 10-14910)
in the instant case was dismissed as frivolous only eight months
prior to Plaintiff writing his Third Amended Complaint (Doc.
65).
Accordingly, in addition to dismissing Plaintiff's Third
Amended Complaint for failure to state a claim, the complaint is
due to be dismissed for Plaintiff's failure to honestly provide
the Court with his litigation history.
IV.
CONCLUSION
In sum, the Court ORDERS as follows:
1.
The Motion to Dismiss filed by Defendant Secretary,
Department of Corrections (Doc. 145) is GRANTED.
2.
against
All
official
Defendant
capacity
Secretary,
claims
Department
for
of
monetary
damages
Corrections
and
Defendant Postmaster General John E. Potter are DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915A(b)(2) because they seek
monetary relief from defendants who are immune from such relief.
3.
All
other
claims
against
Defendant
Secretary,
Department of Corrections and Defendant Postmaster General John
E.
Potter
are
DISMISSED
pursuant
to
Federal
Rules
of
Civil
Procedure 8 and 12(b)(6) and 28 U.S.C. § 1915A(b)(1) for failure
to state a claim upon which relief may be granted.
36
4.
With no remaining claims or defendants, this case is
DISMISSED.
5.
Alternatively, Plaintiff's Third Amended Complaint is
dismissed as a sanction for abuse of the judicial process.
6.
pending
The Clerk of the Court is directed to terminate all
motions,
to
close
this
case,
and
to
enter
judgment
accordingly.
DONE and ORDERED in Fort Myers, Florida, this
of September, 2013.
SA: OrlP-4 9/11/13
Copies to: All parties of record
37
19th
day
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