Rosato v. Riddle

Filing 9

OPINION AND ORDER dismissing with prejudice re: 1 Complaint, denying 5 MOTION for leave to proceed in forma pauperis/affidavit of indigency. The Clerk of Court shall enter judgment accordingly, terminate all pending motions and deadlines and close this file. Signed by Judge Sheri Polster Chappell on 4/30/2019. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DOMINIC ROSATO,
Plaintiff,
v.

Case No.: 2:18-cv-322-FtM-38UAM

FNU RIDDLE,
Defendant.
/
OPINION AND ORDER1
Before the Court is Dominic Rosato’s Motion for leave to proceed in forma
pauperis/affidavit of indigency (Doc. 5) and no response has been filed in opposition. For
the following reasons, the Court denies the Motion for leave to proceed in forma
pauperis/affidavit of indigency and dismisses the Complaint with prejudice.
BACKGROUND
Rosato, a detainee at the Florida Civil Commitment Center (FCCC) in Arcadia,
Florida, filed a civil rights Complaint under 42 U.S.C. § 1983. Rosato states Ms. White,
a recreational specialist at the FCCC, made him get off the legal computer. Rosato was
told he could use the regular computer for the work he was doing because Ms. Fitzpatrick,
the facilities librarian, did not believe Rosato’s project was legal work. Rosato filed a

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grievance with Dr. Sawyer, the director of the FCCC, regarding Ms. White and Ms.
Fitzpatrick removing him from the legal computer. The grievance was referred to Ms.
Riddle, the FCCC grievance examiner. Ms. Riddle informed Rosato that his grievance
was being referred for an administrative review. Grievances filed against staff members
that are referred for administrative review are kept confidential. Rosato was informed that
he would receive no further response to his grievance.
STANDARD OF REVIEW
The mandatory language of 28 U.S.C. § 1915 applies to all proceedings in forma
pauperis. Section 1915 provides:
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 determines that(A)

the allegation of poverty is untrue; or

(B)

the action or appeal(i)
is frivolous or malicious;
(ii)

fails to state a claim on which relief
may be granted; or

(iii)

seeks monetary relief against a
defendant who is immune from
such relief.

28 U.S.C. § 1915(e)(2).
A complaint may be dismissed as frivolous under § 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. 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

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the plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519
(1972).
DISCUSSION
Rosato avers Defendants violated his right to due process under the Fourteenth
Amendment, and Eighth Amendment rights with deliberate indifference, in the way his
grievance was handled by Ms. Riddle. Rosato’s procedural due process claim asserting
that his FCCC grievances was not handled properly by Defendants, even if true, fails to
state a stand-alone § 1983 claim. The Eleventh Circuit Court of Appeals has held: “We
agree with other circuits that have decided that a prisoner does not have a constitutionallyprotected liberty interest in an inmate grievance procedure.” Dunn v. Martin, 178 Fed.
Appx. 876, 878 (11th Cir. 2006); Baker v. Rexroad, 159 Fed. Appx. 61, 62 (11th Cir.
2005); see also Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“[T]he existence
of a grievance procedure confers no liberty interest on a prisoner.... A state-created
grievance procedure is simply a procedural right and does not confer any substantive
right upon an inmate.”); Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“[T]he Constitution
creates no entitlement to grievance procedures or access to any such procedure
voluntarily established by a state.”).
Defendants’ administrative procedures used to investigate, respond or not respond
to Rosato’s grievance are not actionable under § 1983. Defendants' alleged errors
regarding the FCCC grievance procedures do not give rise to a stand-alone claim under
§ 1983. Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
Further, the Court concludes that a more carefully drafted complaint could not state
a claim. Generally, a pro se plaintiff, “must be given at least one chance to amend the

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complaint before the district court dismisses the action with prejudice” where a more
carefully drafted complaint might state a claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th
Cir.1991) (emphasis added) overruled in part by Wagner v. Daewoo Heavy Indus. Am.
Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).

However, there are two

circumstances in which the district court need not grant leave to amend under Bank: (1)
where the plaintiff has indicated that he does not wish to amend his complaint; and (2)
where a more carefully drafted complaint could not state a claim and is, therefore, futile.
Johnson v. Boyd, 568 F. App'x 719, 723 (11th Cir. 2014) (citing Bank, 928 F.2d at 1112).
On the first exception, filing a written motion that sets forth the substance of a proposed
amendment is the proper method to request leave to amend the complaint. Long v. Satz,
181 F.3d 1275, 1279 (11th Cir. 1999). On the second exception, where futility is close,
we err on the side of generosity to the plaintiff. O'Halloran v. First Union Nat'l Bank of Fla.,
350 F.3d 1197, 1206 (11th Cir. 2003).
Rosato’s single claim is based upon his allegation that staff members at the FCCC
violated his constitutional rights by keeping his grievance confidential and notifying him
he would receive no further response to his grievance. Since there is no constitutional
right in a state created grievance process, amending his Complaint would be futile.
Accordingly, it is now
ORDERED:
1.

Dominic Rosato’s Motion for Leave to Proceed In Forma Pauperis/Affidavit

of Indigency (Doc. 5) is DENIED.
2.

Rosato’s Civil Rights Complaint is DISMISSED with prejudice.

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3.

The Clerk of Court shall enter judgment accordingly, terminate all pending

motions and deadlines and close the file.
DONE and ORDERED in Fort Myers, Florida this 30th day of April, 2019.

SA: FTMP-2
Copies:
All Parties of Record

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