Garced v. Prummell et al
OPINION AND ORDER directing plaintiff to file an amended complaint within 21 days. If no amended complaint is filed, the complaint will be dismissed without prejudice and the case closed. Signed by Judge John E. Steele on 11/18/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:15-cv-705-FtM-29MRM
BILL PRUMMELL, Sheriff, EARL
DEMPSTER, Corporal, JESSICA
LONG, Lt., MELISA TURNEY,
OPINION AND ORDER
Plaintiff Nathan Garced (“Plaintiff”) is a prisoner at the
Charlotte County Jail in Punta Gorda, Florida.
Proceeding pro se,
Plaintiff initiated this action against Sheriff Bill Prummell,
Major Earl Goodwyne, Corporal Paul Dempster, Lt. Jessica Long,
Captain Melisa Turney, and Tamatha Poultan by filing a complaint
pursuant to 42 U.S.C. § 1983 (Doc. 1, filed November 12, 2015).
Because Plaintiff seeks leave to proceed in forma pauperis
(Doc. 2), his complaint must be reviewed to determine whether it
is frivolous, malicious, or fails to state a claim upon which
relief may be granted.
See 28 U.S.C. §§ 1915(e)(2)(B)(i)-(iii).
Upon review, the Court concludes that Plaintiff has failed to
present an actionable claim and that dismissal of this case is
However, Plaintiff will be provided an opportunity to
amend his complaint to state a claim.
complaint filed in forma pauperis and to dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915.
In essence, § 1915(e)(2)
is a screening process to be applied sua sponte and at any time
during the proceedings.
The mandatory language of 28 U.S.C. §
1915 applies to all proceedings in forma pauperis.
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
the allegation of poverty is untrue;
(B) the action or appeal(i)
fails to state a claim on
against a defendant who
28 U.S.C. § 1915(e)(2).
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In making the above determinations, all factual allegations
in the complaint must be viewed as true. Brown v. Johnson, 387
F.3d 1344, 1347 (11th Cir. 2004).
Moreover, the Court must read
the plaintiff’s pro se allegations in a liberal fashion. Haines v.
Kerner, 404 U.S. 519 (1972).
1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A claim is
frivolous as a matter of law where, inter alia, the defendants are
immune from suit or the claim seeks to enforce a right that clearly
does not exist. Id. at 327.
Dismissals under 28 U.S.C. § 1915(e)(2)(ii) for failure to
state a claim are governed by the same standard as Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Mitchell v. Farcass, 112
F.3d 1483, 1485 (11th Cir. 1997).
Under Rule 12(b)(6), a complaint
may be dismissed if the facts as pleaded do not state a claim to
relief that is plausible on its face. See Bell Atl. Corp v.
Twombly, 550 U.S. 544 (2007) (retiring the “no set of facts”
language previously used to describe the motion to dismiss standard
and determining that because the plaintiffs had not nudged their
“claims across the line from conceivable to plausible,” their
complaint must be dismissed for failure to state a claim).
complaint is also subject to dismissal under Rule 12(b)(6) “when
its allegations, on their face, show that an affirmative defense
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bars recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357
(11th Cir. 2003).
Plaintiff asserts that he put in two request forms seeking
legal material to assist in preparing his state appellate brief
(Doc. 1 at 5).
He asserts that he is being denied access to the
courts due to the Charlotte County Jail’s unconstitutional policy
of allowing each inmate only four “case laws” per week.
He asserts that this limitation makes it impossible for him
to timely file his appellate brief. Id.
As relief, Petitioner seeks $328,800.00 in damages and asks
this Court to advise the Charlotte County Jail that “all inmates
have access to legal materials as needed pertaining to their cases,
no matter what, if they are pro se litigants or represented by
private attorneys.” (Doc. 1 at 6).
Taking the allegations of the complaint as true and construing
them in the light most favorable to Plaintiff, they fail to state
an actionable § 1983 claim against any named defendant.
Plaintiff’s claims for compensatory and punitive damages
are barred by 42 U.S.C. § 1997e(e)
Plaintiff seeks $328,800.00 in monetary damages (Doc. 1 at 6).
However, the Prison Litigation Reform Act provides that “[n]o
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Federal civil action may be brought by a prisoner confined in a
emotional injury suffered while in custody without a prior showing
of physical injury or the commission of a sexual act[.]” 42 U.S.C.
The Eleventh Circuit has addressed the implications of §
1997e(e) and concluded that “the phrase ‘Federal civil action’
Napier v. Preslicka, 314 F. 3d 528, 532 (11th Cir. 2002) (citing
Harris v. Garner, 216 F.3d 970, 984–85 (11th Cir. 2000) (en banc));
Al-Amin v. Smith, 637 F.3d 1192, 1197 (11th Cir. 2011) (noting
that § 1997e(e) applies to all constitutional claims and does not
distinguish between constitutional claims frequently accompanied
The instant § 1983 action is a “Federal civil action” under
Further, it is undisputed that Plaintiff filed
his complaint while imprisoned, and that the harm complained of
occurred while he was in custody. However, he alleges no physical
Accordingly, Plaintiff's claims for monetary damages are
Plaintiff has not stated a claim for injunctive relief
meaningful right of access to the courts. Lewis v. Casey, 518 U.S.
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343, 350 (1996) (citing Bounds v. Smith, 430 U.S. 817, 821 (1977)).
Reasonable access to a law library is one means of ensuring a
prisoner's access to the courts. Id. at 351 (citing Bounds, 430
U.S. at 828).
Reasonable access does not mean unlimited access, and prison
officials may place reasonable restrictions on inmates' use of
facility law libraries. See Shango v. Jurich, 965 F.2d 289, 293
(7th Cir. 1992) (prisoner was not denied access to courts because
prison's law library was closed nights, weekends, and holidays,
and at other times due to look-down, construction, or shortage of
guards or librarians, absent any evidence of any detriment or
prejudice suffered by prisoner in any litigation); Oltarzewski v.
Ruggiero, 830 F.2d 136, 138 (9th Cir. 1987) (“prison officials may
place reasonable limitations on library access in the interest of
the secure and orderly operation of the institution”); Walker v.
Mintzes, 771 F.2d 920, 931 (6th Cir. 1985) (Constitution does not
mandate “any specific amount of library time which prisoners must
be provided; rather, access need only be reasonable and adequate”).
clarifies that a plaintiff first must show actual injury before
seeking relief under Bounds. See Bass v. Singletary, 143 F.3d 1442,
1444 (11th Cir. 1998). This essential standing requirement means
that prison officials' actions that allegedly violate an inmate's
right of access to the courts must have impeded the inmate's
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pursuit of a non-frivolous, post-conviction claim or civil rights
action. Id. at 1445. To prevail, a plaintiff must provide evidence
of such deterrence, such as a denial or dismissal of a direct
appeal, habeas petition, or civil rights case that results from
actions of prison officials. Id. at 1446. “Therefore, in an accessto-courts claim, ‘a plaintiff cannot merely allege a denial of
access to a law library or adequate attorney, even if the denial
is systemic.’” Wilson v. Blankenship, 163 F.3d 1284, 1291 (11th
Cir. 1998) (quoting Sabers v. Delano, 100 F.3d 82, 84 (8th Cir.
1996)). Rather, a plaintiff must demonstrate that the lack of a
law library or inadequate access to counsel hindered his “efforts
to proceed with a legal claim in a criminal appeal, postconviction
constitutional rights.” Id.
Plaintiff admits that his appellate brief is not yet due (Doc.
1 at 6).
Accordingly, he cannot demonstrate actual injury giving
rise to a violation of his access to the courts at this time.
Although Plaintiff's complaint fails to state a claim, in an
abundance of caution, he will be provided an opportunity to file
an amended complaint that comports with the strictures of this
Should Plaintiff decide to file an amended complaint, it
must be submitted within TWENTY-ONE (21) DAYS from the date on
this Order, be captioned “Amended Complaint,” and bear the same
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docket number as this Order. Plaintiff is advised that the amended
complaint will completely replace the original complaint.
If Plaintiff does not file an amended complaint within this
time period, the complaint will be dismissed without prejudice and
the case will be closed.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2015.
Copies: Nathan Garced
42 U.S.C. § 1983 Civil Rights Complaint Form
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