Blue v. Patarroyo et al

Filing 14

ORDER ADOPTING REPORT OF MAGISTRATE JUDGE (D.E. 8). Signed by Judge Joan A. Lenard on 2/11/2009. (lc2)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF FLORIDA C A S E NO. 08-22672-CIV-LENARD/WHITE J O S E P H LEWIS BLUE, P l a in tif f , vs. J U A N PATARROYO, et al. D e f e n d a n ts . ________________________________/ O R D E R ADOPTING REPORT OF MAGISTRATE JUDGE (D.E. 8) T H I S CAUSE is before the Court on U.S. Magistrate Judge Patrick A. White's P re lim in a ry Report ("Preliminary Report," D.E. 8), issued on November 4, 2008, re c o m m e n d in g that Defendants Schoening and Smith-Butler be dismissed from this action. P lain tiff filed Objections ("Objections" D.E. 11) to the Magistrate Judge's Preliminary R e p o rt on November 25, 2008. Having reviewed the Report, the Objections, and the record, th e Court finds as follows. Plaintiff names three defendants in his pro se civil rights complaint pursuant to 42 U .S .C . § 1983: DCI Correctional Officer Juan Patarroyo; DCI Assistant Warden Herman S c h o e n in g ; and DCI Correctional Officer Sharon Smith-Butler. (See D.E. 1.) Plaintiff m a k e s five claims in his Complaint: (1) Patarroyo violated Plaintiff's First Amendment rig h ts by falsifying a disciplinary report against Plaintiff in retaliation for stating that he w a n te d to file a grievance; (2) Patarroyo violated Plaintiff's Eighth Amendment rights when h e placed Plaintiff in danger by announcing to all inmates in the dormitory that they would

h a v e to work every day because of Plaintiff's conduct, and some inmates threatened harm to Plaintiff as a result; (3) Patarroyo violated Plaintiff's First Amendment rights when he g a v e the plaintiff an unjustified unsatisfactory work rating in retaliation for filing a g rie v a n ce ; (4) Schoening violated Plaintiff's Fourteenth Amendment rights when he denied P la in tif f 's grievance without conducting an adequate investigation; and (5) Smith-Butler v io late d the plaintiff's First Amendment rights when she denied Plaintiff access to the courts b y failing to allow him to appear telephonically before a state court in his civil action against B a n k A tla n tic . O n November 4, 2008, Magistrate Judge White filed a Preliminary Report. (See D.E. 8 .) Therein, reviewed Plaintiff's complaint to determine whether it was sufficient under 28 U .S .C . § 1915(e)(2)(B), which proves that: "Notwithstanding any filing fee, or any portion there o f, that may have been paid, the court shall dismiss the case at any time if the court d e te rm in e s that . . . the action or appeal . . . (i) is frivolous or malicious; (ii) fails to state a c laim on which relief may be granted; or (iii) seeks monetary relief from a defendant who is im m u n e from such relief." Magistrate Judge White found that Plaintiff's retaliation and e n d a n g e r m e n t claims against Defendant Patarroyo could proceed but his claims against D e f en d a n t Schoening and Smith-Butler could not. Magistrate Judge White found that P lain tiff had failed to allege a constitutional violation with regard to Defendant Schoening's a lle g e d failure to investigate his grievance. Magistrate Judge White also found that

D e f e n d a n t Smith-Butler did not violate Plaintiff's constitutional rights when she denied him

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a c c e ss to the courts by refusing to allow him to appear telephonically before a state court in h is civil action against BankAtlantic, because in order to allege a constitutional violation, P la in tif f must show that he was prejudiced in a criminal appeal, in a post-conviction p ro c e ed in g , or in a civil rights action in which he sought to vindicate basic constitutional r ig h t s . P la in tif f , in his Objections, does not object to Magistrate Judge's findings regarding P la in t if f ' s claim against Defendant Schoening. As such, the Court declines to address these c la im s . See 28 U.S.C. § 636(b)(1) (district court is only required to make "de novo d e te rm in a tio n of those portions of the report or specified proposed findings or r e c o m m e n d a tio n s to which objection is made"). Plaintiff does object to Magistrate Judge W h ite 's findings regarding his claim against Defendant Smith-Butler regarding access to the c o u rts . See D.E. 11 at 3. T h e Supreme Court has found that prisoners have a constitutional right to effective ac ce ss to the courts in certain situations Bounds v. Smith, 430 U.S. 817, 830 (1977). H o w e v e r, an inmate alleging a violation of their right to court access must show actual in ju ry. See Lewis v. Casey, 518 U.S. 343, 349 (1996). "[T]he injury requirement is not s a tis f ie d by just any type of frustrated legal claim." Id. at 354. The plaintiff must show that h e was prejudiced in a criminal appeal, id., in a post-conviction proceeding, id., or in a civil rig h ts action in which he sought "to vindicate `basic constitutional rights.'" Id. at 354 (q u o tin g Wolff v. McDonnell, 418 U.S. 539, 579 (1974)). "In other words, Bounds does not

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g u a ra n tee inmates the wherewithal to transform themselves into litigating engines capable o f filing everything from shareholder derivative actions to slip-and-fall claims. The tools it r e q u ir e s to be provided are those that the inmates need in order to attack their sentences, d ire c tly or collaterally, and in order to challenge the conditions of their confinement. Im p a irm e n t of any other litigating capacity is simply one of the incidental (and perfectly co nstitution a l) consequences of conviction and incarceration." Id. (emphasis added). Accord A l-A m in v. Smith, 511 F.3d 1317, 1332 (11th Cir.), cert. denied, 129 S.Ct. 104, 172 L. Ed. 2 d 33 (2008) ("The limited types of legal claims protected by the access-to-courts right [are] n o n frivo lou s appeals from a conviction, habeas petitions, or civil rights suits."). A c c o rd in g ly, the Court finds that Magistrate Judge White correctly found that Plaintiff h a d failed to state a claim against Defendant Smith-Butler, and, therefore, it is hereby O R D E R E D AND ADJUDGED: 1. 2. M a g i str a te Judge White's Preliminary Report is ADOPTED. P lain tiff 's claims against Defendants Smith-Butler and Schoening are D IS M IS S E D . 3. P la in t if f ' s claims of retaliation and endangerment may proceed against D e f en d a n t Patarroyo.

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D O N E AND ORDERED in Chambers at Miami, Florida this 11th day of February, 2009.

___________________________________ J O A N A. LENARD U N I T E D STATES DISTRICT JUDGE

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