Vega v. Budz et al

Filing 17

ORDER OF PARTIAL DISMISSAL dismissing the First Amendment access to the court claim in 5 Third Amended Complaint filed by Juan Francisco Vega without prejudice for failure to state a claim. The Clerk shall provide plaintiff a courtesy copy of h is Third Amended Complaint, and any attached exhibits, and 6 blank copies of the FCCC Civil Rights Complaint Form. This is plaintiff's final warning to submit the 6 copies on or before November 23, 2015. Signed by Judge John E. Steele on 11/12/2015. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JUAN FRANCISCO VEGA,
Plaintiff,
v.

Case No: 2:14-cv-202-FtM-29MRM

TIMOTHY
J.
BUDZ,
Administrator,
DONALD
A.
SAWYER, Assistant Facility
Administrator - Operations,
BRIAN L. MASONY, Attorney,
MARK SNYDER, Investigator,
CRAIG
BELOFF,
Security
Major, and REBECCA JACKSON,
Defendants.
ORDER OF PARTIAL DISMISSAL
This matter comes before the Court upon review of the file.
By way of background, this civil case was opened upon the Court’s
Order

directing

that

one

civil

action

filed

by

two,

pro

se

plaintiffs, who are both civilly confined residents at the Florida
Civil Commitment Center (“FCCC”), be separated into two civil
actions.

See Doc. #2.

Plaintiff Juan Francisco Vega is now

proceeding on his Third Amended Complaint (Doc. #5, Third Amended
Complaint) against defendants Timothy Budz, who Plaintiff states
is the Facility Administrator; Donald Sawyer, Assistant Facility
Administrator-Operations; Brian Masony, attorney; Mark Snyder,
Investigator; Craig Beloff, Security Major; and Rebecca Jackson,
Clinical Director, in their official and individual capacities.

Third Amended Complaint at 1, 3-4.
attempts

to

allege

two

First

The Third Amended Complaint

Amendment

violations:

(1)

an

interference with the access to court claim; and (2) a claim of
retaliation

stemming

from

Plaintiff’s

placement

in

either

“segregation” or “wing restriction” for arguably protected speech.
Id. at 4.
For the reasons that follow, the Court finds the Third Amended
Complaint fails to state a plausible access to the court claim
under the First Amendment.

However, the Court will allow for the

development of the retaliation claim.
I.
According to the Third Amended Complaint, Plaintiff arrived
at the FCCC on March 13, 2011.

Id. at 6.

Shortly thereafter,

Plaintiff alleges that he “discovered a loophole in the Jimmy Ryce
Act” and disclosed it to other FCCC residents orally and by writing
an article entitled “The Legal Loophole of the Jimmy Ryce Act,”
which was printed and distributed.

Id.

As a result, Plaintiff

claims FCCC officials placed him on a “high risk wing restriction
unit” for a period of nine and six months, respectively.

Id.

The

Third Amended Complaint does not specify whether there were two
separate incidents of wing restriction, or whether it was one
continual period of wing restriction. 1

1

See generally id.

The Third Amended Complaint does reference one period of
“lockdown” from October 2, 2012 through November 30, 2012. Third

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On October 18, 2011, Plaintiff states that he helped another
FCCC resident in a complaint for declaratory judgment filed in
state court.

On October 21, 2011, a detective from the Desoto

County Sheriff’s Office served Plaintiff with a search warrant
regarding a flash drive confiscated by FCCC officials on September
19,

2011.

Plaintiff

was

placed

on

wing

restriction

on

an

unspecified date and advised by FCCC officials in October of 2012
that he was held on restriction due to a pending investigation by
the Desoto County Sheriff’s Office for practicing law without a
license.

Id. at 8.

FCCC officials maintained that Plaintiff was

held on wing restriction due to the pending investigation for
practicing law without a license, but Plaintiff claims there never
was an investigation for such charges.

Id. at 8, 12.

While on wing restriction, Plaintiff claims he was prohibited
from: watching television or having an electronic device, wearing
civilian

clothes,

having

incoming

telephone

calls,

purchasing

canteen items; and limited to: three hours of time outdoors, two
visitations from family or friends a week, and two hours of access
to the law library that has computers.
Plaintiff alleges that the limited access to the law library
impeded

his

ability

to

litigate

non-frivolous

claims

and

references a state court case, and federal civil case numbers 2:12-

Amended Complaint at 13; but see id. at 6 (referencing two separate
incidents).

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cv-133 and 2:14-cv-202, which is the instant case.

Id. at 11.

Additionally, Plaintiff blames the FCCC policy limiting residents
to eight postage stamps a month as impacting his ability to
litigate.

Id.

As

relief,

Plaintiff

seeks

preliminary

and

permanent injunction and an order requiring Defendants to rectify
the policies; direct Defendants to reimburse Plaintiff his court
costs and attorney fees; and, aware Plaintiff compensatory and
punitive damages in the amount of $500,000.00 per Defendant.

Id.

at 17.
II.
Despite

plaintiff’s

non-prisoner

status,

2

the

Court

is

required to review the Third Amended Complaint to determine whether
the Complaint is frivolous, malicious or fails to state a claim
because Plaintiff is proceeding in forma pauperis.
§ 1915(e)(2)(B)(i)-(iii).

See 28 U.S.C.

In essence, § 1915(e)(2) is a screening

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

Under § 1915, the Court shall dismiss if the Court

2The

Court recognizes that certain portions of the Prison
Litigation Reform Act are not applicable to plaintiff as a civil
detainee. Troville v. Venz, 303 F.3d 1256, 1260 (11th Cir. 2002).
The United States Court of Appeals for the Eleventh Circuit
previously found that a district court did not error by dismissing
a complaint filed by a civil detainee for failure to state a claim
under the in forma pauperis statute, 28 U.S.C. Section 1915
(e)(2)(B).
Id. at 1260.
Other Courts have also found that
section 1915(e)(2)(B) is not limited to prisoners, but applies to
all persons proceeding in forma pauperis. See Calhoun v. Stahl,
254 F.3d 845 (9th Cir. 2001).

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determines that the action is “frivolous or malicious”; “fails to
state claim on which relief may be granted”; or, “seeks monetary
relief from a defendant who is immune from such relief.”

Id.

Because plaintiff is proceeding in forma pauperis in this matter,
this action is subject to screening for dismissal under § 1915.
In determining the sufficiency of a pro se complaint, the
Court must construe the pro se allegations in a liberal fashion.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted);
Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).

The Court

must also accept as true all of the allegations in the complaint.
Boxer v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006).

The Court

need not, however, credit a pro se plaintiff’s “bald assertions”
or “legal conclusions.” Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure, § 1357 (3d ed. 2013) (noting that
courts, when examining 12(b)(6) motions, have rejected “legal
conclusions,”

“unsupported

conclusions,”

“unwarranted

references,” “unwarranted deductions,” “footless conclusions of
law,” or “sweeping legal conclusions case in the form of factual
allegations.”)
The standards that apply to a dismissal under Fed. R. Civ. P.
12(b)(6) apply to a dismissal under § 1915.

Alba v. Montford, 517

F.3d 1249, 1252 (11th Cir. 2008); Leal v. Ga. Dep’t of Corr., 254
F.3d 1276, 1278-79 (11th Cir. 2001); Mitchell v. Carcass, 112 F.3d
1483, 1490 (11th Cir. 1997).

Thus, a complaint is subject to

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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 v. Twombly, 550 U.S. 544, 556 (2007).

Bell

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.”
Ct. 1937, 1949 (2009).
plaintiff

allege

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.
The plausibility standard requires that a

sufficient

facts

“to

raise

a

reasonable

expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.

Twombly, 550 U.S. at 556.

Specifically,

although a complaint "does not need detailed factual allegations
. . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment]

to

relief’

requires

more

than

labels

and

conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”

Id. at 555 (citations omitted).

Thus,

“the-defendant-unlawfully harmed me accusation” is insufficient.
Ashcroft, 129 S. Ct. at 1949.
it

tenders

enhancement.”

naked

“Nor does a complaint suffice if

assertions

devoid

of

further

factual

Id.

As this is a § l983 action, the initial inquiry must focus on
the presence of two essential elements:
(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

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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).
In addition, a plaintiff must allege and establish an affirmative
causal

connection

between

constitutional deprivation.

the

defendant’s

conduct

and

the

Marsh, 268 F.3d at 1059; Swint v.

City of Wadley, 51 F.3d 988 (11th Cir. 1995); Tittle v. Jefferson
County Comm’n, 10 F.3d 1535, 1541 n.1 (11th Cir. 1994).

A

defendant who occupies a supervisory position may not be held
liable under a theory of respondeat superior in a § 1983 action.
Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 690-692 (1978); Quinn
v. Monroe County, 330 F.3d 1320, 1325 (11th Cir. 2003); Farrow v.
West, 320 F.3d 1235 (11th Cir. 2003).
III.
Based upon a review of the Third Amended Complaint and exhibit
attached thereto, the Court finds the Third Amended Complaint fails
to articulate a First Amendment access to court claim upon which
relief

can

be

granted.

Without

dispute,

Plaintiff

established constitutional right of access to the courts.

has

an

Lewis

v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817
(1977); Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006).
The Supreme Court in Bounds made clear that institutions must make
sure that inmates have “a reasonable adequate opportunity to
present claimed violations of fundamental constitutional rights to

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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.
351.

Lewis, 518 U.S. at 349-

“[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.

constitutional rights.’”
U.S. 539, 579 (1974)).

§

1983

“to

vindicate

‘basic

Id. (quoting Wolff v. McDonnell, 418
Lewis, 518 U.S. at 349-351.

Moreover, a

plaintiff cannot establish the “injury” element, unless the case
that plaintiff was unable to pursue had arguable merit.

Id. at

353; Wilson, 163 F.3d 1291.
Here, although Plaintiff attempts to allege an injury by
referencing two federal civil rights actions, one of the cases is
the instant case, which remains pending.

The other case, case

number 2:12-cv-133, involved another First Amendment access to
court claim and was dismissed under § 1915 for failure to state a
claim.

Because this case did not have arguable merit, Plaintiff

has not alleged the requisite injury requirement. Similar to case

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number 2:12-cv-133, Plaintiff simply cannot show any injury as a
result of the alleged subpar FCCC policies in instant action.
There is no “abstract freestanding right to law library or legal
assistance.” Lewis, 518 U.S. at 351. Consequently, FCCC officials
can

“impose

reasonable

restrictions

and

restraints

upon

acknowledged propensity of [confined individuals] to abuse both
the

giving

and

the

seeking

of

assistance

in

preparation

of

applications for relief: for example, by limitations on time and
location of such activities and imposition of punishment for the
giving

or

receipt

of

consideration

in

connection

with

activities.” Johnson v. Avery, 393 U.S. 483, 490 (1969).

such
Thus,

Plaintiff First Amendment access to court claim is dismissed for
failure to state a claim under § 1915.
Turning to Plaintiff’s First Amendment retaliation claim,
prison officials may not retaliate against confined individuals
for filing lawsuits or administrative grievances.

Wright v.

Newsome, 795 F.2d 964, 968 (11th Cir. 1986) (per curiam).

To

prevail on a retaliation claim, a plaintiff must allege: (1) his
speech was constitutionally protected; (2) he suffered adverse
action such that official’s allegedly retaliatory conduct would
likely deter a person of ordinary firmness from engaging in such
speech;

and

(3)

there

is

a

causal

relationship

retaliatory action and the protected speech.

between

the

O’Bryant v. Finch,

637 F.2d 1207, 1212 (11th Cir. 2011) (internal quotations omitted);

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Moton v. Cowart, 631 F.3d 1337, 1341-42 (11th Cir. 2011).

“To

establish causation, the plaintiff must show that the defendant
was

‘subjectively

motivated

to

discipline’

exercising his First Amendment rights.”

the

plaintiff

for

Moton, 631 F.3d at 1341

(quoting Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir. 2008)).
There is no retaliation claim when a defendant can show he or she
would have taken the same action in the absence of the protected
activity.

Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1063 (11th

Cir. 2013) (citing Smith v. Mosley, 532 F.3d 1270, 1278 (11th Cir.
2008)).

Here, the Third Amended Complaint alleges that Plaintiff

was placed in “wing restriction” for months due to his speech.
Thus, the Court will allow Plaintiff to proceed with this portion
of his First Amendment claim.
IV.
A review of the docket reveals that the Honorable Douglas N.
Frazier ordered Plaintiff to show cause why the action should not
be dismissed for failure to comply with the Court’s order and
submit

the

requisite

number

of

copies

of

the

Third

Amended

Complaint and any exhibits attached thereto for service of process.
See Doc. #14.

Plaintiff timely responded to the Show Cause Order

by explaining that he no longer has a copy of the Third Amended
Complaint

because

FCCC

officials

took

away

his

only

copy.

Additionally, Plaintiff states that he does not have sufficient
funds to pay for any copies.

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The Court will not take any further action on the Order to
Show Cause, at this time.

The Court does note, however, that

Plaintiff’s application to proceed in forma pauperis revealed
monthly deposits of $30.00 from the FCCC in Plaintiff’s resident
account.
a

See Doc. #6.

one-time

courtesy

The Court will direct the Clerk to provide
copy

of

the

Third

Amended

Complaint

to

Plaintiff due to allegations that FCCC officials took away his
only copy.

Additionally, the Court will direct the Clerk to

provide Plaintiff with six blank copies of the FCCC Civil Rights
Complaint Form.

With the courtesy copies provided, Plaintiff can

provide handwritten copies in order to comply with the Court’s
prior order and to continue prosecution of this case.

Failure to

comply with this order will result in the dismissal of this case
without further notice.
ACCORDINGLY, it is hereby
ORDERED:
1.

The First Amendment access to the court claim contained

in the Third Amended Complaint is DISMISSED without prejudice under
§ 1915 for failure to state a claim.
2.

The Clerk of Court shall provide Plaintiff with a courtesy

copy of his Third Amended Complaint and any attached exhibit
thereto (Doc. #5), and six blank copies of the FCCC Civil Rights
Complaint Form with the above-styled case number.

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3.

Plaintiff must submit six (6) copies of the Third Amended

Complaint in compliance with the Court’s prior order (Doc. #11) on
or before November 23, 2015.

This is Plaintiff’s final warning.

Failure to comply with this Order will result in the dismissal of
this case without further notice.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2015.

SA: ftmp-1
Copies: All Parties of Record

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12th

day