Morrison v. Secretary, Department of Corrections et al
Filing
57
ORDER granting 50 Motion to Dismiss, with instructions to the Clerk. Signed by Judge Brian J. Davis on 9/14/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
WILLIAM T. MORRISON, JR.,
Plaintiff,
v.
Case No. 3:15-cv-588-J-39JBT
JULIE JONES, SECRETARY,
et al.,
Defendants.
ORDER
I. Status
Plaintiff
initiated
this
case
by
filing
a
Civil
Rights
Complaint Form (Complaint)1 (Doc. 1), dated April 29, 2015, and
filed with the Clerk on May 11, 2015.2
He filed a typewritten
Amended Complaint (Amended Complaint) (Doc. 37) on July 20, 2016,
pursuant to the mailbox rule.3
Defendants' Motion to Dismiss
(Motion) (Doc. 50) is before the Court. Plaintiff filed a Reply to
the Defendants' Motion to Dismiss (Response) (Doc. 56).
1
The Court references the pagination assigned by the
electronic filing system.
2
The Complaint does not contain a statement providing the
date Plaintiff turned the Complaint over to prison authorities for
mailing.
In addition, it does not have a date stamped by the
prison authorities. The Court will assume for the limited purposes
of this opinion that Plaintiff turned the Complaint over to the
prison authorities for mailing on April 29, 2015.
3
At the time of the filing of the Amended Complaint,
Plaintiff was, and is currently confined in the United States
Penitentiary, Leavenworth, Kansas.
II. Standard of Review
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
v. Iqbal, 556 U.S. 662, 678 (2009).
Ashcroft
In addition, all reasonable
inferences should be drawn in favor of the plaintiff. See Omar ex.
rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per
curiam).
Nonetheless, the plaintiff must still meet some minimal
pleading requirements.
1250,
1262-63
(11th
Jackson v. BellSouth Telecomm., 372 F.3d
Cir.
2004)
(citations
omitted).
While
"[s]pecific facts are not necessary[,]" the complaint should "'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).
Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570.
"A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297 (11th Cir. 2015)
(citation and footnote omitted).
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 action
- 2 -
will not do[.]"
Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal")
(internal citation and quotations omitted). Indeed, "the tenet that
a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions[,]" which simply
"are not entitled to [an] assumption of truth."
U.S. at 678, 680.
See Iqbal, 556
Thus, in ruling on a motion to dismiss, the
Court must determine whether the complaint contains "sufficient
factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S.
at 570).
III. Amended Complaint
Plaintiff brings this civil rights action pursuant to 42
U.S.C. § 1983 against the Defendants in their individual and
official capacities, and he brings state tort claims against the
Defendants for their negligent actions in their individual and
official capacities.
Julie
Jones,
Corrections;
Amended Complaint at 2.
the
Secretary
of
the
Monroe
Barns,
Warden
of
The Defendants are
Florida
Department
Columbia
of
Correctional
Institution (CCI); Randy L. Polk, Assistant Warden of CCI, Keita
Peterson, Lieutenant at CCI; Tavia Fyre, Mail Room Supervisor at
CCI; Brenda Anderson, Mail Room employee at CCI; and J. J. Fields,
- 3 -
Sergeant at CCI.
Plaintiff
Id. at 2-3.
asserts
that
the
Although not a model of clarity,
Defendants
are
liable
because
of
"actions of neglect to prevent the conspiracy to interfere with
Plaintiff's rights to access the courts, due process, and equal
protection of law in preforming [sic] their duties under the color
of state law; retaliation; impeding Plaintiff's rights to access
the courts; equal protection of law, and due process."
Id. at 3.
In his statement of Facts, Plaintiff alleges that in August
2012, he was an inmate in the care and custody of the Florida
Department of Corrections (FDOC), imprisoned at CCI. Id. at 4. He
prepared a Missouri post conviction motion (Form 40), and it was
due to be filed in Case No. 12-LF-CV-00885 by August 14, 2012.
Id.
The Missouri rules require that the Form 40 be notarized before
mailing/filing.
Id.
Plaintiff completed and copied the Form 40
"on or before" Friday, August 3, 2012, and deemed it ready for
mailing.
Id.
Per policy and procedure of the institution, inmates had
access to a notary for preparing legal documents for mailing on
Wednesdays.4 Id.
Plaintiff, on Friday, August 3, 2012, approached
the center gate area at CCI, and requested permission to obtain
notary and legal mail services, but he was informed by Defendant
Fields that notary services were only provided on Wednesdays.
4
Id.
Plaintiff refers to Defendants Jones, Barns, and/or Polk's
Wednesday only notary policy. Amended Complaint at 5.
- 4 -
Defendant Fields advised Plaintiff that if he heard about or caught
Plaintiff requesting notary services again before Wednesday, he
would have Plaintiff locked in confinement for disobeying a verbal
order.
Id.
Plaintiff told Defendant Fields that he had a pending
legal deadline of August 14, 2012 in the Missouri courts.
4-5.
Id. at
Defendant Fields ordered Plaintiff to depart the center gate
area, and threatened to have Plaintiff placed in confinement if he
continued to seek notary services prior to Wednesday.
Id. at 5.
Defendant Fields told Plaintiff that he had discussed Plaintiff's
"grievance writing ass" with Defendant Polk, and if they (Fields
and Polk) had their way, they would see to it that Plaintiff's
petition would never get notarized and mailed.
Id.
On Wednesday, August 8, 2012, Plaintiff handed his Form 40
over to Defendant Peterson for notary and legal mail services. Id.
Plaintiff told her about Defendants Fields' actions and the August
14, 2012 deadline.
Id.
Pursuant to the Florida Administrative
Code, Chapter 33-210.102(8)(h), the required time frame for the
mail to be turned over to the United States Postal Service for
mailing was twenty-four hours from receipt of the mail.
Plaintiff
alleges
that
Defendants
Polk,
Id.
Peterson,
Frye,
Anderson, and Fields, through a conspiracy and/or with deliberate
indifference, failed to turn over the Form 40 to the Postal Service
- 5 -
in a timely fashion.5
Id. at 5-6.
The mail was turned over five
days after receipt, on Monday, August 13, 2012.
Id. at 6.
The
Form 40 did not reach the Missouri Clerk's Office until Wednesday,
August 15, 2012, a day past the filing deadline.
Id.
The Missouri
court does not recognize the mailbox rule, and the Rule 40 was
dismissed as untimely.
Id.
In the motion, Plaintiff attacked a
Missouri criminal judgment and sentence.
Id.
Defendant Polk denied Plaintiff's grievance, although he
admitted that the required mailing time frames were not met.
Id.
Plaintiff appealed this decision, and his appeal was approved. Id.
Plaintiff completed his Florida prison sentence on November
30, 2015.
Id. at 7.
He notified the Florida Department of
Financial Services, General Counsel's Office of his intent to
litigate against the Defendants.
response.
Id.
He did not receive a
Id.
IV.
Counts
Five Counts are presented in the Amended Complaint:
Count I: Defendants Jones, Barns and Polk for the
Institutional Notary Rule (Plaintiff seeks compensatory,
punitive and nominal damages);
Count II: Defendant Fields Deliberate Indifference and
Retaliatory Actions (Plaintiff seeks compensatory and
punitive damages);
5
Plaintiff mentions that he had previous encounters with
Defendants Polk, Frye, Anderson, and Fields concerning the
mishandling of Plaintiff's incoming legal mail. Amended Complaint
at 7.
- 6 -
Count III: Defendant's [sic] Polk, Peterson, Frye,
Anderson, and Fields Collectively and Individually
Conspired to Retaliate Against Plaintiff (Plaintiff seeks
compensatory, punitive, and nominal damages);
Count IV: Defendant Polk's Deliberate Indifferencee [sic]
in Denying FDOC Formal Grievance # 1209-251-096
(Plaintiff seeks compensatory, punitive, and nominal
damages); and
Count V: Defendants Jones and Barns Neglect to Prevent
Conspiracy (Plaintiff seeks compensatory, punitive, and
nominal damages).
Amended Complaint at 7-13.
V. Summary of the Arguments
Defendants seek dismissal of the Complaint pursuant to Fed. R.
Civ. P. 12(b)(6).
Motion at 4-5.
In doing so, they contend
Plaintiff: (1) failed to disclose his prior litigation and the
action should be dismissed for abuse of the judicial process; (2)
failed to exhaust his administrative remedies with regard to
retaliation
and
conspiracy;
(3)
failed
to
state
a
claim
of
retaliation that is plausible on its face; (4) failed to state a
claim of denial of access to the courts that is plausible on its
face with regard to (A) deliberate indifference on the part of
Defendant Fields, (B) Defendants' notary policy, and (C) the
isolated, untimely mailing incident; (5) failed to state a claim as
there is no constitutional right in the grievance procedure; (6)
failed to state a claim of conspiracy to violate civil rights; (7)
failed to state a viable claim of supervisory liability; and (8) is
not entitled to compensatory or punitive damages against the
- 7 -
Defendants in the absence of a physical injury.
Defendants also
contend they are entitled to Eleventh Amendment immunity to the
extent they are sued in their official capacities for monetary
damages.
In response to Defendant's Motion, Plaintiff asserts that the
Prison Litigation Reform Act (Act or PLRA) is inapplicable to his
case because, prior to the filing of the Amended Complaint, he
discharged his Florida prison sentence, and he is no longer a
prisoner for purposes of the Act.
Response at 2.
Thus, Plaintiff
reasons that he was not required to comply with the requirements of
the Act as he was no longer a prisoner for purposes of the Act, and
he was not prompted to address his previous filings because he
filed a typewritten Amended Complaint rather than an amended civil
rights complaint form.
Id. at 2-3.
He claims he exhausted his
administrative remedies prior to the filing of his Complaint.
at 4-6.
claim.
Id.
He opines that he has sufficiently alleged a retaliation
Id. at 6-10.
He asserts that he has adequately alleged a
claim of denial of access to the courts.
Id. at 11-16. He concedes
that he has no right to a grievance procedure.
Id. at 16.
He
submits that he has adequately alleged a conspiracy claim that is
plausible on its face.
Id. at 17-19.
has
a
adequately
raised
plausible on its face.
complied
with
supervisory
Id. at 19-20.
pre-suit
Plaintiff contends that he
liability
that
is
Finally, he asserts that he
notification
- 8 -
claim
requirements,
and
that
Defendants are not entitled to sovereign immunity with respect to
Plaintiff's state tort claims.
Id. at 20.
VI. Law and Conclusions
A.
Eleventh Amendment Immunity
Defendants raise the defense of sovereign immunity to the
extent Plaintiff is seeking monetary damages against them in their
official capacities.
Motion at 23.
In this regard, the Motion is
due to be granted. An official capacity claim for monetary damages
is barred by sovereign immunity.
Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 97-102 (1984).
Thus, insofar as Plaintiff
seeks monetary damages for the violation of his constitutional
rights from the Defendants in their official capacities, the
Eleventh Amendment bars suit.
Zatler v. Wainwright, 802 F.2d 397,
401 (11th Cir. 1986) (per curiam).
Of note, "neither pendent
jurisdiction nor any other basis of jurisdiction may override the
Eleventh Amendment." Pennhurst State Sch. & Hosp., 465 U.S. at 121
(finding the principle also applies to state-law claims brought
into federal court under pendent jurisdiction).
B.
Conspiracy
Count III: Defendants Polk, Peterson, Frye, Anderson, and
Fields Collectively and Individually Conspired to
Retaliate
Against
Plaintiff
(Plaintiff
seeks
compensatory, punitive and nominal damages); and
Count V: Defendants Jones and Barns Neglect to Prevent
Conspiracy (Plaintiff seeks compensatory, punitive and
nominal damages).
- 9 -
In these two claims, Plaintiff alleges that Defendants Polk,
Peterson,
Frye,
Anderson,
and
Fields
conspired
together
to
retaliate against Plaintiff, and Defendants Jones and Barns failed
to take preventative actions to circumvent the formation of this
conspiracy.
In order to establish a § 1853(3) conspiracy claim, Plaintiff
has to show two or more persons entered an agreement to deprive him
of his civil rights.
42 U.S.C. § 1853(3).
Here, Plaintiff claims
that these FDOC's employees conspired to deprive him of his
constitutional rights and failed to take corrective action with
respect to the conspiracy to retaliate.
In this instance, all of
these Defendants were employees of the FDOC at the time of the
events in question, and all of the allegations arise out of their
duties as employees of the FDOC.
Defendants contend that Plaintiff has failed to state a claim
due to the intracorporate conspiracy doctrine.
Motion
at 19-21.
"The intracorporate conspiracy doctrine bars conspiracy claims
against
corporate
or
government
together within an organization."
actors
accused
of
conspiring
Rehberg v. Paulk, 611 F.3d 828,
854 (11th Cir. 2010), aff'd by 132 S.Ct. 1497 (2012).
It is
axiomatic that the employees of the FDOC "constitute a single legal
entity that cannot conspire with itself."
Dickerson v. Alachua
Cnty. Comm'n., 200 F.3d 761, 768 (11th Cir.), cert. dismissed, 530
U.S.
1285
(2000).
Since
all
of
- 10 -
the
Defendants
actions
are
attributed
to
the
entity
itself,
there
is
negation
of
multiplicity of actors needed to constitute a conspiracy.
v. Coats, 523 F. App'x 612, 615 (2013).
the
Detris
See Grider v. City of
Auburn, Ala., 618 F.3d 1240, 1261 (11th Cir. 2010) (finding that
the alleged conspiracy of the law enforcement officers involved
job-related functions within their scope of employment, although
they may have acted unconstitutionally, and the conspiracy claim
failed because of the intracorporate conspiracy doctrine).
In this case, Defendants Polk, Peterson, Frye, Anderson,
Fields, Jones, and Barns were all employees of the FDOC at the time
of the events in question, they were all performing their duties
for the FDOC and they were undoubtedly performing job-related
duties.
Since the alleged conspiracy occurred only within that
governmental entity, the intracorporate conspiracy doctrine bars
the conspiracy claims against them.
See Claudio v. Crews, No.
5:13-cv-345-MP-EMT, 2014 WL 1758106, at *6 (N.D. Fla. May 1, 2014)
(not reported in F.Supp.3d) (finding the job-related functions of
the
correctional
employees
"well
within
Defendants'
scope
of
employment as FDOC employees"); McLemore v. Cruz, No. 6:10-cv-766Orl-28KRS, 2011 WL 4101729, at *4 (M.D. Fla. Sept. 14, 2011) (not
reported in F.Supp.2d) (finding the intracorporate conspiracy
doctrine
applicable
in
a
case
claiming
co-conspirators,
correctional officers at the Orange County Jail, created a "fightclub" at the jail staging inmate fights); Myers v. Fla., No. 5:12-
- 11 -
cv-259-RS-EMT, 2014 WL 68067, at *10 (N.D. Fla. Jan. 8, 2014) (not
reported in F.Supp.3d) (finding that when all of the alleged
conspirators were employees of the FDOC and no outsiders were
involved in the alleged conspiracy, the intracorporate conspiracy
doctrine applicable).
These Defendants have been accused of conspiring together
within
the
organization
to
violate
Plaintiff's
rights.
No
outsiders are alleged to have been involved in the conspiracy to
retaliate and failure to take corrective action with respect to the
conspiracy.
Thus, the intracorporate conspiracy doctrine bars the
claims raised in counts three and five against the employees of the
FDOC.
Therefore, Defendants' Motion to Dismiss is due to be
granted in this regard.
Alternatively, the Court finds the Motion to Dismiss is due to
be granted for Plaintiff's failure to present more than a vague and
conclusory allegation that a conspiracy exists.
Motion at 19.
He
has not pled enough facts to state a claim to relief that is
plausible on its face.
C.
Twombly, 550 U.S. at 570.
No Constitutional Right in the Grievance Procedure
Count IV: Defendant Polk's Deliberate Indifference in
Denying FDOC Formal Grievance # 1209-251-096 (Plaintiff
seeks compensatory, punitive and nominal damages).
In
this
ground,
Plaintiff
alleges
that
Defendant
Polk
exhibited deliberate indifference in denying Plaintiff's grievance.
Defendant Polk asserts there is no constitutional right in the
- 12 -
grievance procedure.
has no such right.
Motion at 18-19.
Plaintiff concedes that he
Reply at 16.
The Eleventh Circuit has said: "[w]e agree with other circuits
that
have
decided
that
a
prisoner
does
not
have
a
constitutionally-protected liberty interest in an inmate grievance
procedure.
1994)
See, e.g., Adams v. Rice, 40 F.3d 72, 75 (4th Cir.
(stating
that
Constitution
creates
no
entitlement
to
voluntarily established grievance procedure); Flick v. Alba, 932
F.2d 728, 729 (8th Cir. 1991) (same)."
Thomas v. Warner, 237 Fed.
App'x 435, 437–38 (11th Cir. 2007). Moreover, insofar as Plaintiff
alleges that his grievance was improperly denied, such a claim does
not support a § 1983 action.
See Shehee v. Luttrell, 199 F.3d 295,
300 (6th Cir. 1999) (finding that prison officials who were not
involved in an inmate's termination from his commissary job, and
whose only roles involved the denial of administrative grievances
or the failure to act, were not liable under § 1983 on a theory
that
the
failure
to
act
constituted
an
acquiescence
in
unconstitutional conduct), cert. denied, 530 U.S. 1264 (2000).
the
As
such, Defendants' Motion to Dismiss is due to be granted in this
regard.
- 13 -
D.
Notary Rule
Count I: Defendants Jones, Barns and Polk for the
Institutional Notary Rule (Plaintiff seeks compensatory,
punitive and nominal damages).
In order to state a claim under 42 U.S.C. § 1983, a plaintiff
must allege that (1) the defendant deprived him of a right secured
under the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law.
Salvato v. Miley,
790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted).
Defendants contend that Plaintiff
cannot demonstrate that the notary policy was the reason the
pleading was untimely filed as the document was notarized in a
timely fashion, Plaintiff was aware of the once-a-week-on-Wednesday
notary service policy, and he had plenty of time to plan and
prepare his documents in accordance with this policy.
Motion at
16-17.
A deferential standard of review is applied when reviewing
prison regulations impinging on inmates' constitutional rights, and
the regulation is valid if it is reasonably related to legitimate
penological interests.
Lewis v. Casey, 518 U.S. 343, 361 (1996).
"It is indisputable that indigent inmates must be provided at state
expense with paper and pen to draft legal documents with notarial
services to authenticate them, and with stamps to mail them."
- 14 -
Bounds v. Smith, 430 U.S. 817, 824-25 (1977).
Also, habeas corpus
and civil rights actions, actions that protect most valued rights,
are
considered
to
constitutional scheme.
be
of
fundamental
importance
in
our
Bass v. Dep't of Corr., 684 So.2d 834, 835
(Fla. 1996) (citations omitted).
Thus, inmates must not be
prohibited from filing petitions seeking habeas corpus relief or
complaints alleging violations of federally protected rights.
As such, there must be meaningful access to the courts:
It is well-recognized that inmates have a
constitutional right of access to the courts,
which mandates that they be provided with
reasonable access to law libraries or persons
trained in the law. Bounds v. Smith, 430 U.S.
817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).
This right requires institutions to ensure
that an inmate has "a reasonable adequate
opportunity to present claimed violations of
fundamental constitutional rights to the
courts." Id. at 825.
To state a claim for denial of access to
courts, plaintiffs "must not only show that
prison authorities failed to provide such
access or assistance, but that the failure
'hindered [the plaintiff's] efforts to pursue
a legal claim.'" Scruggs v. Squadrito, 165
F.3d 33 (7th Cir. 1998) (quoting Lewis v.
Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135
L.Ed.2d 606 (1996)). As such, courts have held
that "[p]laintiffs must plead prejudice to
state
a
claim
when
challenging
minor
interferences with access to the courts...."
Martin v. Davies, 917 F.2d 336, 341 (7th Cir.
1990) (affirming district court's dismissal of
claim that prison official's refusal to
notarize forms resulted in denial of access to
courts); see also Scruggs, 165 F.3d 33
(concluding that the plaintiff could not
prevail on claim of denial of access to court
- 15 -
based on defendants refusal to provide notary
services because plaintiff failed to point to
an actual injury).
Nelson v. Orange Cty. Jail Notary Dep't, No. 608CV-2083-ORL-31KRS,
2009 WL 464950, at *1–2 (M.D. Fla. Feb. 24, 2009) (not reported in
F.Supp.2d).
Here, Plaintiff alleges no operative facts which show that
Defendants Jones, Barns and Polk's actions with regard to the oncea-week notary policy at CCI deprived Plaintiff of meaningful access
to the courts.
Form 40.
Of import, Plaintiff had ninety days to file his
The Missouri court mandate issued May 16, 2012.
date for the Form 40 was Tuesday, August 14, 2012.
initially
sought
notary
services
seventy-nine
days
The due
Plaintiff
after
the
mandate, on Friday, August 3, 2012, although he was fully aware
that notary services were offered at the institution on Wednesdays
and would have been available on Wednesday, August 1, 2012, if he
had chosen to access the services on that date.6
On Friday, August
3, 2012, Plaintiff was told to return for notary services on
Wednesday, August 8, 2012 based on institutional policy. Plaintiff
returned for notary services on August 8, 2012, well within the
ninety-day period, and signed the Form 40 and had it notarized.
Thus, notary services were provided in a timely fashion, allowing
6
Plaintiff alleges that his Form 40 was ready for mailing "on
or before Friday, Aug. 3, 2012." Amended Complaint at 4.
- 16 -
for the mailing of the document to Missouri within a twenty-four
hour period, as required by the rules.7
With regard to the notary services, Plaintiff does not present
a cognizable claim for relief.
Pyles v. Carlson, 698 F.2d 1131,
1132-33 (11th Cir. 1983) ("Other complaints were properly dismissed
because they state no cognizable ground for relief: . . . initial
refusal of a secretary to notarize a legal document[.]").
The
initial refusal to notarize the document on Friday, August 3, 2012
did not cause the untimely filing of the document.
Plaintiff has
not presented allegations demonstrating that the actions about
which he complains or the conduct of the Defendants with regard to
the notary services caused adverse consequences or an actual
injury. The notary policy provided reasonable adequate opportunity
to present constitutional claims to the courts.
Defendants' Motion to Dismiss is due to be granted with
respect to the claim of deprivation of notary services.
In this
instance, Plaintiff has not alleged sufficient facts that an actual
injury resulted from Defendants' conduct with respect to having a
once-a-week notary service at CCI.
7
The delay in processing the legal document came after the
provision of notary services. The mail was not processed within
the twenty-four hour period provided for in the rules. Instead, it
was mailed five days later, on August 13, 2012. It took two days
for the mail to get to the Missouri court, and the Form 40 was
filed on Wednesday, August 15, 2012, a day past the ninety-day
deadline.
- 17 -
E.
Retaliation Claim
Count II: Defendant Fields Deliberate Indifference and
Retaliatory Actions (Plaintiff seeks compensatory and
punitive damages).
The last claim to be addressed is the retaliation claim
against Defendant Fields.
In this count, unlike all of his other
counts in the Amended Complaint, Plaintiff does not seek nominal
damages.
Amended Complaint at 10.
Instead, Plaintiff seeks "at
least $750,000.00 in damages[;]" the cost of the suit, including
interest; attorney's fees; and punitive damages.
Id.
Although Plaintiff contends that he is not subject to the
PLRA, that is certainly not the case.
See Reply at 2.
Plaintiff
was an inmate of the Florida penal system when he filed his
original Complaint (Doc. 1).
proceed as a pauper.
The Court granted him leave to
Order (Doc. 5).
Thereafter, Plaintiff
notified the Court that he was completing his Florida prison
sentence and being immediately transferred into federal custody to
serve a federal prison sentence. Plaintiff's Motion (Doc. 34). At
the time of the filing of his Amended Complaint, he was a prisoner
confined in the United States Penitentiary at Leavenworth, Kansas.
Amended Complaint (Doc. 37). To date, Plaintiff is confined in the
United States Penitentiary.
A prisoner, as defined under 28 U.S.C. § 1915(h), is "any
person incarcerated or detained in any facility who is accused of,
convicted
of,
sentenced
for,
or
- 18 -
adjudicated
delinquent
for,
violations of criminal law or the terms and conditions of parole,
probation,
pretrial
release,
or
definition, Plaintiff is a prisoner.
prisoners.
See
diversionary
program."
By
The PLRA applies to federal
Alexander v. Hawk, 159 F.3d 1321, 1324 (11th Cir.
1998) (finding 42 U.S.C. § 1997e(a), the exhaustion requirement,
expressly provides that it applies to actions brought under section
1983 or any other Federal law); Hernandez v. Ryan, No. 10-22789CIV-MARTINEZ, 2010 WL 3447487, at *3 (S.D. Fla. Aug. 11, 2010) (not
reported in F.Supp.2d) (recognizing that civil rights cases filed
by state or federal prisoners dismissed pursuant to 28 U.S.C. §
1915A(b)(1) and/or 28 U.S.C. § 1915(e)(2)(B) constitute strikes
pursuant to the provisions of the PLRA), report and recommendation
adopted by 2010 WL 3447486 (S.D. Fla. Aug. 31, 2010); Newson v.
Benton, No. 09-14333-CIV, 2009 WL 5217014, at *4 (S.D. Fla. Dec.
29, 2009) (not reported in F.Supp.2d) (finding that mandamus
petitions against federal or state officials qualify as civil
actions under 28 U.S.C. § 1915(g)).
Defendants contend that Plaintiff cannot recover compensatory
or punitive damages against them in the absence of physical injury.
Motion at 22-23. Upon review, Plaintiff's request for compensatory
and punitive damages regarding his federal claims is precluded by
42 U.S.C. § 1997e(e) while he is incarcerated:
Subsection (e) of 42 U.S.C. § 1997e
states that "[n]o Federal civil action may be
brought by a prisoner confined in a jail,
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prison, or other correctional facility, for
mental or emotional injury suffered while in
custody without a prior showing of physical
injury." This statute is intended to reduce
the number of frivolous cases filed by
imprisoned plaintiffs, who have little to lose
and excessive amounts of free time with which
to pursue their complaints.
See Harris v.
Garner, 216 F.3d 970, 976-79 (11th Cir. 2000)
(en banc) (surveying the legislative history
of the PLRA). An action barred by § 1997e(e)
is barred only during the imprisonment of the
plaintiff; therefore, such action should be
dismissed without prejudice by the district
court, allowing the prisoner to bring his
claim once released and, presumably, once the
litigation cost-benefit balance is restored to
normal. Id. at 980.
Tracking the language of the statute, §
1997e(e) applies only to lawsuits involving
(1) Federal civil actions (2) brought by a
prisoner (3) for mental or emotional injury
(4) suffered while in custody. In Harris, we
decided that the phrase "Federal civil action"
means
all
federal
claims,
including
constitutional claims. 216 F.3d at 984-85.
Napier v. Preslicka, 314 F.3d 528, 531-32 (11th Cir. 2002), cert.
denied, 540 U.S. 1112 (2004).
Like Napier, Plaintiff is seeking damages for the deprivation
of his federal constitutional rights.
Id. at 531 (Napier's civil
rights action presented a Fourth Amendment claim for monetary
damages against two deputies for mistaken arrest and imprisonment).
The harm allegedly occurred to Plaintiff while he was confined in
the FDOC.
Thus, because the harm complained of by Plaintiff
occurred while he was in custody, the PLRA is applicable to his
claim.
Indeed, "the PLRA covers all federal civil lawsuits filed
- 20 -
by prisoners concerning emotional or mental injury suffered" while
in custody.
Id. at 534.
Liberally construing the pro se Amended Complaint, the facts
as alleged by Plaintiff do not show that he suffered a physical
injury as a result of his complaints; Plaintiff has alleged no
physical injury whatsoever. In count II, Plaintiff seeks "at least
$750,000.00 in damages" and punitive damages against Defendant
Fields.
Even
a
liberal
construction
of
Plaintiff's
Amended
Complaint does not support a contention that he is seeking nominal
damages from Defendant Fields.8
Honors v. Judd, No. 8:10-cv-22-T-
33AEP, 2011 WL 3498287, at *6 (M.D. Fla. Aug. 10, 2011) (not
reported in F.Supp.2d) (noting that in Hughes v. Lott, 350 F.3d
1157 (11th Cir. 2003), the Eleventh Circuit held that 1997e(e) does
not bar suits by prisoners if they have not alleged a physical
injury if they seek nominal damages, but finding that "Honors claim
does not fall within that narrow exception as he is seeking, among
other things, an award of punitive and compensatory damages");
McCiskill v. Thompson, No. 3:10cv211/MCR/MD, 2010 WL 4483408, at *3
n.4 (N.D. Fla. Sept. 22, 2010) (not reported in F.Supp.2d) (holding
that the narrow exception in Hughes v. Lott with regard to a
8
A request for a large sum of money does not constitute a
request for nominal damages, of which $1.00 is the norm, "as
nominal damages implies a mere token or trifling." Williams v.
Langford, No. 2:13-cv-315-J-FtM-38CM, 2015 WL 163226, at *7 (M. D.
Fla. Jan. 12, 2015) (not reported in F.Supp.3d).
Plaintiff is
certainly not seeking a token or trifling.
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nominal damages claim does not apply because McCiskill seeks
punitive damages and attorneys' fees, not nominal damages), report
and recommendation adopted by 2010 WL 4457182 (N.D. Fla. Oct. 29,
2010).
Plaintiff's case does not fall within the narrow exception as
he is seeking, among other things, an award of punitive and
compensatory
damages.
The
Court
concludes
that
"Plaintiff's
complaint cannot be liberally construed as requesting nominal
damages" against Defendant Fields in Count II based on the fact
that Plaintiff is clearly seeking substantial damages against
Fields: at least $750,000.00 in compensatory damages and punitive
damages.
Honors v. Judd, 2011 WL 3498287, at *6 n.2.
He does not
request nominal damages against Defendant Fields in this count, and
his request for relief, even if liberally construed by the Court,
does not contain a request for nominal damages.
Of import,
Plaintiff makes it very clear that he is seeking substantial
compensatory and punitive damages against Defendant Fields.
In light of Plaintiff's failure to satisfy the physical injury
requirement, Plaintiff's claims for compensatory and punitive
damages may not proceed.
Al-Amin v. Smith, 637 F.3d 1192, 1199
(11th Cir. 2011) (finding dismissal of a punitive damages claim
appropriate if a plaintiff fails to meet § 1997e(e)'s physical
injury requirement).
Also, the Eleventh Circuit's decision in
Hughes v. Lott is inapplicable as Plaintiff's complaint cannot be
liberally construed to include a request for nominal damages.
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Here, Plaintiff is bringing a federal civil action claiming a
denial of federal constitutional rights, he is a prisoner, and his
alleged injuries occurred while he was in custody.
Plaintiff is
seeking a large sum of money in compensatory damages as well as
punitive damages, and he is clearly not seeking a trifling or token
sum of money.
Furthermore, Plaintiff did not suffer any physical
injury as a result of the alleged actions of Defendant Fields.
Therefore, because Plaintiff is actually seeking damages for mental
or emotional injuries, his action is barred by § 1997e(e) as long
as he remains incarcerated.
Accordingly, for all of the above-
stated reasons, the Motion to Dismiss is due to be granted.
Plaintiff attempts to present another conspiracy claim under
Count II: "Defendant Fields also conspired with Defendants Polk,
Peterson, Frye, and Anderson in not adhering to the clearly
established FAC 33 outgoing legal mail rule, and not timely handing
over Plaintiff's Form 40 legal pleading to U.S. Postal Services for
mailing to the Missouri Courts, causing it to be received untimely."
Amended Complaint at 9-10.
These Defendants have been
accused of conspiring together within the organization to violate
Plaintiff's rights. No outsiders are alleged to have been involved
in the conspiracy.
Thus, the intracorporate conspiracy doctrine
bars the conspiracy claim raised in count two against the employees
of the FDOC. Therefore, Defendants' Motion to Dismiss is due to be
granted in this regard.
- 23 -
Alternatively, Plaintiff has failed to make particularized
allegations that this alleged conspiracy existed.
This conclusory
allegation of a conspiracy without information supporting a claim
that
these
Defendants
reached
an
understanding
to
deny
the
Plaintiff's rights is not plausible on its face. Thus, Defendants'
Motion is due to be granted.
Plaintiff alleges that he was deprived of his constitutional
rights when Defendant Fields refused to obtain a notary for
Plaintiff on Friday, August 3, 2012, told him that notary services
were only provided on Wednesdays when Plaintiff approached him on
Friday, and warned Plaintiff that if he sought to obtain notary
services
again
before
Wednesday,
Defendant
Fields
would
Plaintiff in confinement for disobeying a verbal order.9
Complaint at 4.
lock
Amended
Plaintiff asserts that Defendant Fields deprived
him of his constitutional rights to access the courts, due process,
equal protection, and free speech.
This Court has already concluded that the provision of notary
services
on
Wednesdays
did
not
deprive
Plaintiff
of
his
constitutional rights or deprive him of access to the courts.
The
initial refusal to notarize the document on Friday, August 3, 2012
did not cause the untimely filing of the Form 40 document.
The
document was timely signed and notarized on August 8, 2012.
9
Based on the documents before the Court, it appears that
Plaintiff exhausted his administrative remedies, or made concerted
efforts to do so.
- 24 -
Plaintiff has not presented allegations demonstrating that the
actions about which he complains or the conduct of Defendant Fields
with regard to the notary services caused adverse consequences or
an actual injury.
Plaintiff also relies on the Equal Protection and Due Process
Clauses of the United States Constitution.
The Equal Protection
Clause of the Fourteenth Amendment prohibits a state from denying
"to any person within its jurisdiction the equal protection of the
laws."
U.S. Const. amend. XIV, § 1.
Fourteenth Amendment states:
The Due Process Clause of the
"[N]or shall any State deprive any
person of life, liberty, or property, without due process of law."
U.S. Const. amend XIV, § 1.
"To plead an equal protection claim,
a plaintiff must allege that 'through state action, similarly
situated persons have been treated disparately.' Thigpen v. Bibb
County, Ga., Sheriff's Dep't, 223 F.3d 1231, 1237 (11th Cir. 2000),
abrogated on other grounds by National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)."
Thorne v. Chairperson Florida Parole Comm'n, 427 Fed. App'x 765,
771 (11th Cir. 2011) (per curiam).
Specifically, to establish a claim under the Equal Protection
Clause, a prisoner such as Plaintiff, can allege that "'(1) he is
similarly situated with other prisoners who received more favorable
treatment; and (2) his discriminatory treatment was based on some
constitutionally protected interest such as race.' Jones v. Ray,
279
F.3d
944,
946-47
(11th
Cir.2001)
- 25 -
(quotation
omitted)
(hereinafter Ray)."
Smith v. Reg'l Dir. of Fla. Dep't of Corr.,
368 Fed. App'x 9, 12 (11th Cir. 2010) (per curiam).
Plaintiff has not offered any support for a claim of an equal
protection violation under the Fourteenth Amendment, either by
alleging facts in support of such a claim, or by submitting
evidence of an equal protection violation.
Indeed, he has failed
to present any operative facts showing he was treated differently
from similarly-situated prisoners due to some constitutionally
protected interest, such as race.
His due process claim is also
not plausible on its face as it is both vague and conclusory.
To the extent Plaintiff raises a state tort negligence claim
against Defendant Fields (and any other Defendants) it will be
dismissed.
See Amended Complaint at 2.
Although this Court may
exercise supplemental jurisdiction over a state law claim, the
Court elects not to do so, particularly when no federal claims
remain.
Negron v. Bryant, No. 3:08-cv-1118-J-34MCR, 2010 WL
746727, at *18 (M.D. Fla. Mar. 3, 1010) (not reported in F.Supp.2d)
("Under
28
U.S.C.
§
1367(a),
a
district
court
may
exercise
supplemental jurisdiction over state law claims related to the
federal court action.").
F.
Failure to Disclose Prior Litigation
Plaintiff filed an original Complaint (Doc. 1), declaring it
to be true and correct under penalty of perjury. Defendants assert
that Plaintiff failed to disclose that he had filed at least
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thirteen federal and state cases dealing with the same or similar
facts
involved
in
this
action
or
imprisonment or conditions thereof.
otherwise
relating
Motion at 5-8.
to
his
Plaintiff had
an opportunity to respond to this contention in his Response, and
he did so.
Plaintiff states that he considered himself no longer
to be a prisoner by the time he filed his Amended Complaint, he
elected not to use the civil rights complaint form when he amended
his complaint and was therefore not prompted to address the
question of his previous un-revealed cases, and the original
Complaint should be considered non-existent.
Response at 2-3.
The Court has difficulty accepting Plaintiff's excuses as
either persuasive or acceptable.
First, Plaintiff was a prisoner
at the time he filed his Amended Complaint as he was confined in a
United States Penitentiary.
His contention that he was no longer
a prisoner is completely without merit.
Secondly, he was obliged
to tell the truth in his original Complaint, and he declared that
he did so in his signed, sworn declaration.
Complaint at 11.
Plaintiff does not contest the fact that he failed to reveal his
previously filed state and federal cases in response to the
questions set forth on page 5 of the Complaint.
Response at 3.
Also, when he amended his Complaint, he did not offer corrected
responses to the questions concerning his litigation history.
Instead, he filed a typewritten Amended Complaint, again without
correcting or revealing his litigation history.
- 27 -
Although Plaintiff is proceeding on an Amended Complaint, he
should not be rewarded for this behavior.
litigant
in
the
courts.
The
He is a prolific
sophistication
of
Plaintiff's
substantive arguments and his knowledge of the procedural rules
convince this Court that Plaintiff understands the severity of not
revealing the truth to the Court.
This Court has the authority to
control and manage matters before it, and Plaintiff must be
expected to conform to acceptable standards in approaching this
Court.
As such, this Court will not tolerate false responses
and/or statements in any pleading or motion filed for consideration
by the Court.
If the Court cannot rely on the statements and/or
responses made, it threatens the quality of justice.
Upon
consideration
of
the
documents
before
the
Court,
Plaintiff was less than forthright when he responded no to the
questions as to whether he had initiated lawsuits in the state and
federal courts dealing with the same or similar facts or otherwise
relating to his imprisonment or conditions and when he failed to
disclose information about prior cases in the space provided.
Indeed, "failure to comply with court rules requiring disclosures
about a plaintiff's previous litigation constitutes an abuse of the
judicial process warranting dismissal."
Sears v. Haas, 509 F.
App'x 935, 936 (11th Cir. 2013) (per curiam) (citation omitted).
See Hood v. Tompkins, 197 F. App'x 818, 819 (11th Cir. 2006) (per
curiam) (finding dismissal is not an abuse of discretion); Jacobs
- 28 -
v. Comerford, No. 3:13cv52/RV/EMT, 2013 WL 6184052, at *4 (N.D.
Fla. Nov. 25, 2013) (not reported in F.Supp.2d) (finding the
plaintiff's pro se status an unacceptable excuse).
Not only is Plaintiff an active litigant, the Court concludes
that Plaintiff was responsible for answering the questions on the
civil
rights
complaint
form
truthfully,
and
Plaintiff's
unconvincing excuses are found to be unacceptable.
In order to
control and manage cases before it, this Court must require
conformance to acceptable standards by the litigants in approaching
this Court. If Plaintiff decides to file any other actions in this
Court, he must completely and truthfully respond to all questions
presented.
Anything less is unacceptable, and Plaintiff will be
subjected to Court sanctions if he is non-compliant with this
directive.
Therefore, it is now
ORDERED:
1.
Defendants' Motion to Dismiss (Doc. 50) is GRANTED.
2.
The Clerk shall enter judgment accordingly and close this
case.
DONE AND ORDERED at Jacksonville, Florida, this 14th day of
September, 2017.
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sa 8/17
c:
William T. Morrison, Jr.
Counsel of Record
- 30 -
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