Maglio v. Davenport

Filing 7

ORDER OF DISMISSAL dismissing Complaint without prejudice pursuant to § 1915(e)(2)(b)(ii); denying 2 Motion for leave to proceed in forma pauperis/affidavit of indigency. The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 3/15/2013. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DANIEL MAGLIO,
Plaintiff,
vs.

Case No.

W.
DAVENPORT,
Supervisor,

Law

2:13-cv-200-FtM-29SPC

Library

Defendant.
___________________________________
ORDER OF DISMISSAL
This matter comes before the Court upon initial review of the
file.

Daniel Maglio, a Florida prisoner, initiated this action by

filing a Civil Rights Complaint Form (Doc. #1, Complaint) pursuant
to 42 U.S.C. § 1983.
pauperis.

Plaintiff seeks leave to proceed in forma

See Doc. #2.
I.

Plaintiff names W. Davenport, the law library supervisor at
Charlotte

Correctional

Complaint at 1.

Institution,

as

the

sole

Defendant.

Liberally construed, the Complaint alleges a

violation of Plaintiff’s First Amendment right to access to the
courts

stemming

from

Defendant

Davenport’s

Plaintiff copies of his medical record.

refusal

Id. at 14.

to

make

Plaintiff

claims he required copies of his medical records to prosecute a
deliberate indifference to a serious medical condition claim in a
§ 1983 action (case number 09-14042-CV-King) before the United

States District Court for the Southern District of Florida.

Id.

As relief, Plaintiff requests that the Court “reopen case no. 0914042-cv-King,”

grant

a

jury

trial,

compensatory, and punitive damages.”

and

award

him

“nominal,

Id. at 16.

II.
Because Plaintiff is currently confined in jail, the Prison
Litigation Reform Act requires that the Court review the Complaint
to determine whether the action is “frivolous, malicious, or fails
to state a claim upon which relief can be granted; or seeks
monetary relief from a defendant who is immune from such relief.”
See 28 U.S.C. § 1915(A)(a), (b)(1), (b)(2). In addition, 28 U.S.C.
§ 1915(e)(2) directs that the Court “shall dismiss the case at any
time if the court determines that “the action . . . is frivolous or
malicious [or] fails to state a claim on which relief may be
granted.” 28 U.S.C. § 1915(e)(2)(B)(i)(ii).

In essence, § 1915 is

a screening process to be applied sua sponte and at any time during
the proceedings.

In reviewing a complaint, however, the courts

must apply the long established rule that pro se complaints are to
be liberally construed and held to a less stringent standard than
pleadings drafted by attorneys.
2197, 2200 (2007).

Erickson v. Pardus, 127 S. Ct.

And, the court views all allegations as true.

Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004).
A case is deemed frivolous where the complaint lacks any
arguable basis in law or fact.

Neitzke v. Williams, 490 U.S. 319,

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325 (1989); see also Mitchell v. Brown & Williamson Tobacco Corp.,
294 F.3d 1349 (11th Cir. 2002); Bilal v. Driver, 251 F.3d 1346
(11th

Cir.

2001).

Frivolous

claims

“fantastic or delusional scenarios.”
considering

whether

dismissal

are

those

that

describe

Bilal, 251 F.3d at 1349.
is

appropriate

under

In
§

1915(e)(2)(ii), the court applies the standard governing dismissal
under Federal Rule of Civil Procedure 12(b)(6).1

Alba v. Montford,

517 F.3d 1249, 1252 (11th Cir. 2008); Mitchell v. Carcass, 112 F.3d
1483, 1490 (11th Cir. 1997).

Section 1915(e)(2)(ii) is identical

to the screening language of § 1915A.

Thus, a complaint is subject

to dismissal for failure to state a claim if the facts as plead do
not state a claim for relief that is plausible on its face.
Atlantic Corp.

v.

Twombly,

127

S.

Ct. 1955,

1968-69

Bell

(2007).

Additionally, the court may dismiss a case when the allegations in
the complaint on their face demonstrate that an affirmative defense
bars recovery of the claim.

Marsh v. Butler County, Ala., 268 F.3d

1014, 1022 (11th Cir. 2001).
III.
As this is a § l983 action, the initial inquiry must focus on
the presence of two essential elements:

1

The Court may take judicial notice of pleadings and orders
when the documents are matters of public record and are not subject
to reasonable dispute because they are capable of accurate and
ready determination by resort to resources whose accuracy could not
reasonably be questioned. Home v. Potter, 392 F. App’x 800, 802
(11th Cir. 2010).
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(1) whether the person engaged in the conduct
complained of was acting under color of state
law; and (2) whether the alleged conduct
deprived a person of rights, privileges or
immunities guaranteed under the Constitution
or laws of the United States.
Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
Interference with an inmate’s access to the court constitutes
a First Amendment violation.

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).
institutions

must

The Supreme Court in Bounds made clear that

make

sure

that

inmates

have

“a

reasonable

adequate opportunity to present claimed violations of fundamental
constitutional rights to the courts.”

Id. at 825.

Additionally,

the Supreme Court explained that a plaintiff who alleges a denial
of access to court claim must show how the interference caused the
plaintiff harm or prejudice with respect to the litigation. Lewis,
518 U.S. at 349-351. “[A]n inmate cannot establish relevant actual
injury simply by establishing that his prison’s law library or
legal assistance program is subpar in some theoretical sense.” Id.
at 351. Indeed, “[t]he injury requirement is not satisfied by just
any type of frustrated legal claim.”

Id. at 354.

Specifically, a

plaintiff must show that the denial of access to court prejudiced
him in a criminal appeal, post-conviction matter, or in a civil
rights

action

under

42

U.S.C.

§

1983

“to

vindicate

‘basic

constitutional rights.’” Id. (quoting Wolff v. McDonnell, 418 U.S.
539, 579 (1974)).
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Here, the Court finds this action subject to dismissal because
Plaintiff cannot allege any injury as a result of Davenport’s
alleged failure to make copies of Plaintiff’s medical records. The
Court takes judicial notice of the filings in case number 2:09-cv14042 (S.D. Fla. 2009), specifically the order granting Defendants’
motion for summary judgment.
“Order”).

See Id. at Doc. #100 (hereinafter

Contrary to Plaintiff’s allegations in the Complaint,

the Order noted that it reviewed the medical records submitted by
both parties.

Id. at 4 (emphasis added).

To the extent that

Plaintiff may have submitted incomplete copies of his medical
records as a result of Davenport’s actions, the Court nevertheless
noted that it had complete copies of the records.

Id. at 15.

Significantly,

Plaintiff’s

the

Order

addressed

the

merits

of

deliberate indifference claim and did not dispose of any claim
based on Plaintiff’s failure to file copies of his medical records.
See generally Id.
ACCORDINGLY, it is hereby
ORDERED:
1.

The Complaint is DISMISSED without prejudice pursuant to

§ 1915(e)(2)(b)(ii).
2.

Plaintiff’s

motion

for

pauperis (Doc. #2) is DENIED.

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leave

to

proceed

in

forma

3.

The Clerk shall enter judgment accordingly, terminate all

deadlines, and close the file.
DONE AND ORDERED at Fort Myers, Florida, on this
of March, 2013.

SA: alj
Copies: All Parties of Record

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