LYONS v. JACKSON CORRECTIONAL INSTITUTION

Filing 6

ORDER re 1 Complaint filed by GEORGE LYONS: Clerk directed to send Plaintiff a blank civil rights complaint form for prisoner litigants arising under 42 U.S.C. 1983, which he will complete in full. (Amended Pleadings due by 12/16/2011.). Signed by MAGISTRATE JUDGE GARY R JONES on 11/23/2011. (jws)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
GEORGE LYONS,
Plaintiff,
v.

CASE NO. 5:11-cv-286-MP-GRJ

SHELINA PETERSON, et al.,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Plaintiff’s pro se Complaint. (Doc. 1.) Plaintiff,
a prisoner in the custody of the Florida Department of Corrections (“FDOC”), filed his
Complaint on the Court’s civil rights complaint form for prisoner litigants for actions
arising under 42 U.S.C. § 1983. From a review of the Complaint, it is evident the facts
as presented fail to state a claim upon which relief can be granted with respect to
certain of the claims Plaintiff wishes to bring. Plaintiff will therefore be given an
opportunity to amend his Complaint.
I. BACKGROUND AND FACTS
Plaintiff attempts to bring claims under 42 U.S.C. § 1983 against Defendants
Walter McNeil, former Secretary of the FDOC, and correctional officers Shelina
Peterson, Jessica Valverde and other unnamed officials at Jackson Correctional
Institution (“Jackson CI”) in Malone, Florida.
According to the factual allegations in the Complaint, Officer Jessica Valverde
wrote a disciplinary report against Plaintiff in May 2007. Plaintiff apparently directed
some derogatory language at Valverde in response to the disciplinary report.

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Disciplinary charges were filed against Plaintiff as a result of the disciplinary report and
he was placed in administrative confinement. Plaintiff alleges Valverde then decided to
inventory Plaintiff’s personal property and confiscate some of his property in retaliation
for the derogatory language Plaintiff used against her. The items taken from Plaintiff
included two rubber handballs, gym shorts, a sweatshirt, a watch and a dictionary.
While in administrative confinement for the charges brought against him as a
result of the disciplinary report written by Officer Valverde, Plaintiff wrote letters to both
the Warden of Jackson CI and Defendant Shelina Peterson, the property sergeant at
Jackson CI, in which he complained about the confiscation of his property by Valverde.
Plaintiff received no response to either of these inquiries.
After being released from administrative confinement Plaintiff visited the property
room and inquired about the property that had been confiscated. Defendant Peterson
instructed Plaintiff never to ask her about this matter again and then purportedly altered
property room records to make it appear as if the property was rightfully confiscated
from Plaintiff and then destroyed. Plaintiff then filed a series of unsuccessful
grievances in response to the confiscation of his property, which were all denied.
On November 1, 2007, Plaintiff filed a tort claim in Florida state court in
connection with the confiscated property. Plaintiff claims the Clerk of Court of the
Circuit Court in and for the Fourteenth Judicial Circuit in Jackson County would not
process his complaint despite Plaintiff qualifying for indigent status under that court’s
indigency requirements. Plaintiff then filed a mandamus action in the First District Court
of Appeal, which allegedly sent him an order instructing him to serve the Defendants.
Plaintiff was under the impression he was required to serve each Defendant personally.
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Consequently, Plaintiff took copies of his tort claim to the mailroom at Jackson CI on
March 19, 2008 for delivery to each Defendant. The next day, March 20, 2008, Plaintiff
was called to the Central Gate at Jackson CI, where he was handcuffed and then
placed in disciplinary confinement. After Plaintiff was placed in disciplinary
confinement, Plaintiff alleges he was assaulted by correctional officers and then a false
disciplinary report was written against him alleging that he had verbally threatened a
correctional officer. Plaintiff claims these actions were in retaliation for the tort claim
action he filed in state court. His state court tort claim action was dismissed with
prejudice when the Circuit Court for the Fourteenth Judicial Court granted summary
judgment to the Defendants. Plaintiff then appealed this ruling, which was upheld on
appeal by the First District Court of Appeal.
In his Complaint, Plaintiff states that his claims in this case are for deprivation of
his personal property without due process, retaliation for pursuing his First Amendment
right to file lawsuits, and for deprivation of his right to petition the government for
redress of his grievances. Plaintiff seeks monetary damages and restoration of 130
days of gain time.
II. STANDARD OF REVIEW
The Court must screen Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A.
Section 1915A mandates the Court must independently review all cases brought by
prisoners against government entities or employees. The Court is further directed by
section 1915A to “identify cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or ... seeks monetary relief from a defendant who is
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immune from such relief.” 28 U.S.C. § 1915A.
Plaintiff filed his Complaint on the civil rights complaint form to be used by
prisoners in actions under 42 U.S.C. § 1983. A successful section 1983 action requires
a plaintiff to show he was deprived of a federal right by a person acting “under color of
state law.” Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)(citing Flagg
Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)). A person acts under color of
state law when he acts with authority possessed by virtue of his employment with the
state. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir.
1995)(citing West v. Atkins, 487 U.S. 42, 48-50 (1988)). “The dispositive issue is
whether the official was acting pursuant to the power he/she possessed by state
authority or acting only as a private individual.” Id. at 1523 (citing Monroe v. Pape, 365
U.S. 167, 183-84 (1961)(overruled on other grounds by Monell v. Department of Social
Servs., 436 U.S. 658 (1978))).
III. DISCUSSION
Plaintiff’s Complaint purports to bring several federal constitutional claims
against the Defendants. The Court will address the sufficiency of each of Plaintiff’s
claims below.
A.

The Confiscation of Plaintiff’s Property
Plaintiff alleges he was deprived of his personal property without due process in

retaliation for a derogatory comment he made to Defendant Valverde. The Supreme
Court has held that the negligent deprivation of property does not amount to a
constitutional violation actionable under § 1983. Daniels v. Williams, 474 U.S. 327, 330,
333 (1986) (holding that the Due Process Clause is not implicated by a state official's
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negligent act causing unintended loss of or injury to life, liberty, or property). The
Supreme Court has further held that “an unauthorized intentional deprivation of property
by a state employee does not constitute a violation of the procedural requirements of
the Due Process Clause of the Fourteenth Amendment if a meaningful post-deprivation
remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). The
State of Florida provides Plaintiff with an adequate post-deprivation remedy for the loss
of his property. Prisoners may file a tort claim action in state court in order to recover
damages for property losses. See FLA. STAT . § 768.28 (2011). Because Plaintiff has
access to an adequate post-deprivation remedy, no procedural due process violation
has occurred. See Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009) (“We have
recognized that ‘a civil cause of action for wrongful conversion of personal property’
under state law is a sufficient postdeprivation remedy when it extends to unauthorized
seizures of personal property by state officers.”)(quoting Lindsey v. Storey, 936 F.2d
554, 561 (11th Cir. 1991).
Plaintiff had access to an adequate post-deprivation remedy in connection with
the confiscation of his property by Defendant Valverde. Plaintiff was aware of this
remedy, as evidenced by the fact he admits filing a tort claim in state court regarding
the confiscated property. Accordingly, Plaintiff cannot maintain a due process claim for
deprivation of his property and there he should delete this claim in amending his
Complaint.
B.

Plaintiff’s First Amendment Claim
In the Complaint, Plaintiff also alleges the Defendants violated his First

Amendment rights. Prisoners have a constitutional right of access to courts. Barbour v.
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Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). “The fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817,
828 (1977). Prison officials cannot retaliate against prisoners for exercising their right
to free speech, a right which includes the ability to complain to prison officials about the
prisoner’s conditions of incarceration. O’Bryant v. Finch, 637 F.3d 1207, 1212 (11th Cir.
2011)(per curiam). Plaintiff alleges that several unnamed correctional officers at
Jackson CI filed false disciplinary charges and assaulted Plaintiff in response to the
lawsuit Plaintiff filed in state court. Plaintiff has provided facts sufficient to state a First
Amendment claim, but he must specifically allege which correctional officers at Jackson
CI retaliated against him for filing a lawsuit in order to be able to proceed on this claim.e
Each of those correctional officers should be included as defendants in his Amended
Complaint.
C.

Plaintiff’s Claims
Although Plaintiff has not included in his Complaint the state courts or any

individuals associated with the state courts as defendants, Plaintiff alleges that the state
trial court and the state court of appeals violated his right to petition the government for
redress of his grievances by granting the Defendants summary judgment and
dismissing his state court tort claim action with prejudice. These claims are not viable
and should not be included in the amended complaint.
While Prisoners have a First Amendment right to petition the government for
redress of their grievances, Johnson v. Avery, 393 U.S. 483, 490 (1969), pursuant to
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the Rooker-Feldman doctrine Plaintiff cannot maintain a claim in federal court
challenging the decision of a state court. Under the Rooker-Feldman doctrine, federal
courts are not permitted to conduct appellate review of state court rulings. See District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983) (“According to the
Rooker–Feldman doctrine, United States district courts do not have subject matter
jurisdiction to review the judgments of a state court.”). Thus, under Rooker-Feldman
this Court cannot review the decision of the state court granting summary judgment
against Plaintiff in his state tort claim action. Accordingly, Plaintiff should delete in his
amended complaint reference to any claim challenging the decision of the state court.
D.

Plaintiff’s Allegations Against Defendant McNeil
To establish liability under 42 U.S.C. § 1983, Plaintiff must show an affirmative

causal connection between each Defendant’s conduct and the constitutional
deprivation. Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1 (11th Cir.
1994). “[S]upervisory officials are not liable under § 1983 for the unconstitutional acts
of their subordinates on the basis of respondeat superior or vicarious liability.” West v.
Tillman, 496 F.3d 1321, 1328 (11th Cir. 2007). To state a claim against a supervisory
defendant, a plaintiff must allege (1) the supervisor's personal involvement in the
violation of his constitutional rights, (2) the existence of a custom or policy that resulted
in deliberate indifference to the plaintiff's constitutional rights, (3) facts supporting an
inference that the supervisor directed the unlawful action or knowingly failed to prevent
it, or (4) a history of widespread abuse that put the supervisor on notice of an alleged
deprivation that he then failed to correct. Id.

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Plaintiff has not included any allegations establishing Defendant McNeil
participated in any manner whatsoever in the events described in the Complaint.
McNeil’s position as Secretary of the FDOC at the time Plaintiff’s property was seized
is, standing alone, insufficient to make McNeil liable under Section 1983. Accordingly,
Plaintiff should delete McNeil as a Defendant in amending his Complaint unless he can
allege sufficient fact showing that McNeil directly participated in the violation of
Plaintiff’s federal constitutional rights.
E.

Plaintiff’s Request for Restoration of Gain Time
In addition to monetary damages, Plaintiff also includes in his Complaint a

request that the Court restore 130 days of gain time. The sole federal remedy for a
state prisoner seeking restoration of gain time is a federal writ of habeas corpus. Hale
v. Sec’y. Dept. Of Corr., 345 Fed. Appx. 489, 492 (11th Cir. 2009)(per curiam).
Accordingly, Plaintiff should delete the requested for this relief from his Amended
Complaint, as this relief cannot be granted in a section 1983 lawsuit.
IV. CONCLUSION
In light of Plaintiff’s pro se status, the Court will permit Plaintiff an opportunity to
amend his Complaint to name the proper Defendants and to eliminate claims that are
not viable. To amend his Complaint, Plaintiff should completely fill out a new civil rights
complaint form, marking it “Amended Complaint.” An amended complaint completely
replaces all previous complaints and all earlier complaints are disregarded. N.D. Fla.
Loc. R. 15.1. Plaintiff should file his First Amended Complaint with the Clerk of the
Court and keep one identical copy for himself.
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Accordingly, it is ORDERED:
1.

The Clerk is directed to send the Plaintiff a blank civil rights complaint
form for prisoner litigants for actions arising under 42 U.S.C. § 1983,
which he shall complete in full and file on or before December 16, 2011.

2.

Failure to comply with this Order in the allotted time will result in a
recommendation to the district judge that this cause be dismissed.

DONE AND ORDERED this 23rd day of November, 2011.

s/ Gary R. Jones s/GaryR.Jone
GARY R. JONES
United States Magistrate Judge

Case No: 5:11-cv-286-MP-GRJ