Bishop v. McLaughlin et al
Filing
32
ORDER ADOPTING IN PART 28 Report and Recommendations; GRANTING IN PART 13 Motion to Dismiss; GRANTING 20 Motion to Dismiss Party; and GRANTING 21 Motion to Amend/Correct. The only remaining claim is the Plaintiff's access to courts clai m against Defendant Jane or John Doe in charge of receiving Federal Express deliveries at Macon State Prison on September 15, 2010. Because no service can be made on Defendant Jane or John Doe in charge of receiving Federal Express deliveries for Ma con State Prison on September 15, 2010, the Court will allow the Plaintiff to perform limited discovery on Defendant Warden Gregory McLaughlin in order to determine the name of this employee. The Plaintiff shall have 60 days from the date of this ord er to ascertain the identity of this employee and to substitute the employee's name as the Defendant. The Order dismissing the Defendants shall be effective upon the expiration of the 60 day discovery period. Should the Plaintiff fail to ascert ain the identities of Defendant Jane or John Doe in charge of receiving Federal Express deliveries at Macon State Prison on September 15, 2010 and amend his Complaint within the 60 day time period, the Defendants, and the entire case, will be dismissed. Ordered by Judge Marc Thomas Treadwell on 3/26/2012. (tlh)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
KYLE RICHARD BISHOP, III,
Plaintiff,
v.
WARDEN GREGORY MCLAUGHLIN,
JOHN HILL, et al.,
Defendants.
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CIVIL ACTION NO. 5:11-CV-107(MTT)
ORDER
This matter is before the Court on Magistrate Judge Charles H. Weigle’s Report
and Recommendation on the Defendants’ Motion to Dismiss and the Plaintiff’s Motion to
Dismiss and Motion for Leave to Amend his Complaint to join a necessary party
defendant. (Doc. 28). The Magistrate Judge recommends dismissing the Plaintiff’s
First Amendment right to access courts claim because he failed to properly exhaust his
administrative remedies as required by the Prison Litigation Reform Act (PLRA). The
Magistrate Judge also recommends dismissing the Plaintiff’s First Amendment
retaliation claim because the Plaintiff failed to state a claim upon which relief could be
granted. The Magistrate Judge recommends denying the Plaintiff’s motions as moot.
The Plaintiff has filed an objection to the Recommendation, the Defendants have
responded to his objection, and the Plaintiff has filed a reply. (Docs. 29, 30, 31).
Pursuant to 28 U.S.C. § 636(b)(1), the Court has thoroughly considered the Plaintiff’s
objection and response in opposition and has made a de novo determination on the
Recommendation.
The Recommendation is adopted only with regard to the Plaintiff’s First
Amendment retaliation claim. With regard to the Plaintiff’s First Amendment right to
access courts claim, the Court finds the Plaintiff has properly exhausted his
administrative remedies. However, the Plaintiff fails to state an adequate claim against
Defendants Gregory McLaughlin and John Hill, and the Motion to Dismiss is GRANTED
with regard to Defendants McLaughlin and Hill. Further, the Plaintiff’s Motion to add a
necessary party defendant and Motion to Dismiss Defendants Mary Colbert, Jamie Hall
and Lorrita Johnson are both GRANTED. The Plaintiff has sufficiently stated a First
Amendment right to access courts claim against Defendant Jane or John Doe.
Therefore, the only remaining claim is the Plaintiff’s access to courts claim against
Defendant Jane or John Doe in charge of receiving Federal Express deliveries at the
Macon State Prison on September 15, 2010.
I.
FACTUAL AND PROCEDURAL HISTORY
The Plaintiff is currently serving a thirty year prison sentence for child
molestation, aggravated child molestation and sexual battery. He obtained an affidavit
from his victim recanting her testimony and filed an Extraordinary Motion for New Trial
in Cobb County, Georgia. After an evidentiary hearing, the Plaintiff’s motion was denied
on August 20, 2010, and he had until September 18, 2010, to file an Application for
Discretionary Appeal in the Georgia Court of Appeals. The Plaintiff prepared this
application and mailed it to a law firm in Virginia that provides free copying and typing
services for the Plaintiff. On September 14, 2010, the law firm sent, by Federal Express
overnight delivery, a package containing six typed copies of his Application. The
phrase, “Legal Mail-Open w/ Inmate” was written under the return address on the
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Federal Express label. On September 22, 2010, the Federal Express package was
received by the Virginia law firm with a label marked “Refused: INMATE CANT REC
PACKAGES,” and the Federal Express records indicate that the Plaintiff’s legal mail
was “refused by recipient facility.” (Doc. 1 at 6). After being told that his package had
been returned, the Plaintiff filed his Application on September 29, 2010, and it was
denied as untimely by the Georgia Court of Appeals in October 2010.1
On October 14, 2010, the Plaintiff filed an informal grievance complaining of the
prison officials’ failure to allow the Plaintiff to receive the Federal Express package.
After the informal grievance was denied, the Plaintiff filed a formal grievance on October
19, 2010. The Plaintiff alleges he attached to the formal grievance a two-sided, onepage Witness Statement form that was provided to him by the prison. The Plaintiff
alleges, and the Grievance Policy supports this allegation, that the Witness Statement
form is an “approved form” to be utilized in the formal grievance procedure. The
Plaintiff’s formal grievance was subsequently rejected for a “policy violation” because
“only one (1) additional page will be attached by the inmate to the formal grievance
form. Formal grievances with additional pages will be rejected…. [I]t is rejected at the
institutional level.” (Doc. 13-9 at 3). Although there were boxes available for the
Warden to check indicating whether or not rejection of the Plaintiff’s formal grievance
issue was appealable, no box was checked. However, according to the Grievance
Policy, “all formal grievances may be appealed.” (Doc. 13-3 at 8). Following this
denial, the Plaintiff met with Defendant Hill to request an appeal. According to the
1
The record does not indicate whether the Plaintiff submitted a handwritten appeal instead of a
typed appeal. However, it does indicate, that he eventually received his mail in October 2010,
after he had submitted his discretionary appeal to the Georgia Court of Appeals
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Plaintiff, Defendant Hill threatened him with isolation if he pursued his grievance appeal,
but eventually gave the Plaintiff an appeal form. The Plaintiff completed the appeal
form and returned it to Defendant Hill. However, according to the Plaintiff, Defendant
Hill did not file the appeal.
On March 18, 2011, the Plaintiff initiated his lawsuit pursuant to 42 U.S.C. § 1983
alleging that: (1) the Defendants violated his First Amendment rights by failing to accept
and provide the Plaintiff his Federal Express package containing the Plaintiff’s legal
mail, which ultimately lead to his failure to file a timely appeal; and (2) Defendant Hill
retaliated against the Plaintiff in violation of his First Amendment rights by threatening to
put him in isolation if he pursued his appeal of the denial of his formal grievance. The
Defendants seek dismissal for various reasons, including failure to exhaust and failure
to state a claim upon which relief can be granted. After the Defendants moved for
dismissal, the Plaintiff moved to dismiss Defendants Mary Colbert, Jamie Hall and
Lorrita Johnson because he realized that Federal Express packages were not handled
by mailroom officers, but instead handled by a particular employee who only dealt with
Federal Express packages. Simultaneously with the filing of that motion, the Plaintiff
also moved for leave to amend his complaint and join “John or Jane Doe, Macon State
Prison employee designated for receiving Fedex deliveries” on September 15, 2010.
(Doc. 21 at 1).
II.
THE PLAINTIFF’S MOTION TO DISMISS AND MOTION FOR LEAVE TO
AMEND/JOIN A NECESSARY PARTY-DEFENDANT
The Plaintiff has moved to dismiss Defendants Mary Colbert, Jamie Hall and
Lorrita Johnson because they were not responsible for the rejection of his Federal
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Express delivery package. The Motion is GRANTED, and Defendants Mary Colbert,
Jamie Hall and Lorrita Johnson are DISMISSED.
The Plaintiff has also moved for leave to amend his complaint and join “John or
Jane Doe, Macon State Prison employee designated for receiving Fedex deliveries.”
(Doc. 21 at 1). The Court should freely grant leave to amend “when justice so requires.”
Fed. R. Civ. Pro. 15(a)(2). The Court has no way of knowing the names of Defendant
John or Jane Doe in order to perfect service of process. However, the Eleventh Circuit
has noted that a prisoner-plaintiff may face difficulty in ascertaining the alleged
wrongdoer and “district courts [should] assist prisoners in discovering the identity of the
proper defendants.” Brown v. Sikes, 212 F.3d 1205, 1209 n. 4 (11th Cir. 2000). Here,
the Plaintiff describes Jane or John Doe as a Macon State Prison employee who was in
charge of receiving Federal Express deliveries on September 15, 2010. Limited
discovery should reveal Defendant Jane or John Doe’s identity given the specificity of
the Plaintiff’s motion, and if the prison does not have a specific person in charge of
receiving Federal Express deliveries, then limited discovery would reveal that as well.2
Therefore, the Plaintiff is permitted to join “John or Jane Doe, Macon State Prison
employee designated for receiving Fedex deliveries.” Accordingly, the Motion is
GRANTED. (Doc. 21). The Plaintiff’s First Amendment access to courts claim against
John or Jane Doe designated for receiving Federal Express deliveries will be analyzed
below along with the other allegations in the Plaintiff’s complaint.
2
The Court notes that the Defendants have not claimed that Macon State Prison does not
employ a particular employee who is in charge of receiving Federal Express packages. Instead,
the Defendants broadly argue that Jane or John Doe is not specific enough, while failing to
address the fact that the Plaintiff specified Jane or John Doe who received the Federal Express
deliveries on September 15, 2010.
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III.
A.
THE DEFENDANTS’ MOTION TO DISMISS
First Amendment Access to Courts Claim
1.
Failure to Exhaust Administrative Remedies
Initially, the Defendants contended that the Plaintiff failed to exhaust his
administrative remedies with regard to his First Amendment right to access courts claim
because he failed to file an appeal after his formal grievance was denied. The
grievance process outlined in the Georgia Department of Corrections Standard
Operating Procedures (GDOC SOP) requires a prisoner to follow three steps to exhaust
his administrative remedies: (1) informal grievance, (2) formal grievance, and (3)
grievance appeal. (Doc. 13-1 at 8). The Defendants argue that “records for [the
Plaintiff’s] grievance show that [the] Plaintiff filed an informal and a formal grievance,
that the formal grievance was rejected at the institutional level, and that he did not file a
grievance appeal after rejection of the formal grievance.” (Doc. 13-1 at 8-9). Because
of his failure to file a grievance appeal, the Defendants contend the Plaintiff failed to
complete the grievance process for his claim. The Defendants do not address the
Plaintiff’s contention that he attempted to appeal his formal grievance, nor do they offer
any contradictory testimony regarding Defendant Hill’s alleged refusal to turn in the
appeal for the Plaintiff.
The Magistrate Judge agreed that the Plaintiff failed to exhaust, but for reasons
different than those argued by the Defendants.3 The Magistrate Judge contends that,
even assuming all the Plaintiff’s allegations as true, the Plaintiff failed to properly
3
The Defendants, in their response to the Plaintiff’s objection to the Recommendation, now
embrace the Recommendation’s reasoning involving the exhaustion of the Plaintiff’s claim.
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exhaust his administrative remedies. (Doc. 28 at 5). The Recommendation concludes
that the Plaintiff’s formal grievance was rejected at the institutional level because the
Plaintiff attached a “two-page affidavit to his formal grievance,” when the SOP only
allowed one additional page to be attached to a prisoner’s formal grievance. The
Recommendation reasons that a “non-compliant formal grievance … [could not] be
appealed,” and that the Plaintiff instead should have sought leave to re-file his formal
grievance. (Doc. 28 at 5). The Recommendation cites an unpublished Eleventh Circuit
case, Bugge v. Roberts, 430 Fed. App’x 753 (11th Cir. 2011), to support this
conclusion.4 First, Bugge merely states that pursuant to the grievance policy in that
case, the prisoner was told by prison officials that he could not appeal the denial of his
out-of-time formal grievance. 430 Fed. App’x at 756.5 The Eleventh Circuit held that
the prisoner’s formal grievance was, in fact, not untimely, and because the prisoner was
told he could not appeal, he was not required to in order to exhaust his administrative
remedies. Id. (citing Miller v. Tanner, 196 F.3d 1190, 1194 (11th Cir. 1999) (holding that
an inmate is not required, in order to exhaust administrative remedies, to appeal an
institution-level denial when he is told he may not appeal)). This case does not stand
for the proposition that all non-compliant formal grievances cannot be appealed.
Nevertheless, the Recommendation concludes that “Defendant Hill did not submit the
appeal to Internal Affairs, as the denial of a non-compliant formal grievance was not
appealable.” (Doc. 28 at 5). Thus, according to the Recommendation, the Plaintiff did
4
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
5
Although Bugge originated in Georgia, it is unclear whether the grievance policy in that case is
the same policy as the one in this case. However, this does not impact the Court’s analysis.
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not properly exhaust his remedies because he did not properly file a formal grievance
and the rejection of the non-compliant formal grievance could not be appealed.
The Plaintiff contends he did exhaust his administrative remedies by filing a
formal grievance and then appealing the denial of that formal grievance in compliance
with the SOP. The Plaintiff argues he exhausted his administrative remedies, or at least
attempted to, because the purported “two-page” attachment to his formal grievance was
actually a one-page, two-sided Witness Statement form, that was provided to him by the
prison to use in the grievance process. Thus, he did properly file his formal grievance,
even though the grievance was rejected for having two pages attached. Further, the
Plaintiff argues he attempted to appeal the grievance, and in fact, obtained and
completed a grievance appeal form, then gave it to Defendant Hill to file with the
appropriate party.
The PLRA requires an inmate to exhaust all available administrative remedies
before filing suit. 42 U.S.C. § 1997e(a). Claims that are not properly exhausted must
be dismissed. Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999). When a motion
to dismiss is based on a failure to exhaust defense, the review of the motion requires
two steps. Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008). First, the Court looks to
the factual allegations from both parties, taking the Plaintiff’s version of the facts as true.
Id. at 1082. “If, in that light, the [Defendants are] entitled to have the complaint
dismissed for failure to exhaust administrative remedies, it must be dismissed.” Id.
However, if the complaint is not subject to dismissal under the Plaintiff’s version of the
facts, the Court must then make specific findings of fact to resolve any disputed factual
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issues. Id. The Defendants have the burden to set forth specific facts proving that the
Plaintiff failed to exhaust his available administrative remedies. Id.
Here, under the first Turner step, taking the Plaintiff’s version of the facts as true,
his claim cannot be dismissed for failure to exhaust available remedies. In determining
whether he exhausted his administrative remedies, the Court must look, first, to “what
the procedures were that [the plaintiff] had to follow.” Miller v. Tanner, 196 F.3d 1190,
1193 (11th Cir. 1999). Here, the applicable SOP provides “[o]nly one additional page
will be attached by the inmate to the Formal Grievance Form. Formal Grievances with
additional pages will be rejected.” (Doc. 13-3). The SOP gives no further guidance
regarding the specifics regarding the permissible one-page attachment to a formal
grievance.
The SOP references the prison-provided Witness Statement forms, and how the
forms are used by counselors in the grievance process to investigate claims. The SOP
does not indicate whether a prisoner can attach this form to his grievance or not.
Further, nothing in the SOP indicates that the Plaintiff was required to re-file his rejected
formal grievance as the Recommendation suggests. In fact, the SOP states that “all
formal grievances are appealable.” The rejection of the Plaintiff’s formal grievance had
three empty boxes, stating (1) appealable, (2) not appealable, and (3) suspend for
internal investigation. None of these boxes were checked, nor is there evidence that
Defendant Hill told the Plaintiff to re-file or told him that he could not file an appeal
because his formal grievance was not appealable.
Under the Plaintiff’s version of the facts he attempted to exhaust his remedies.
First, the attachment to his formal grievance, he alleges, was a one-page, two-sided
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document that was “approved” for use in the grievance process. Therefore, his
attachment of this document complied with the “only one additional page” requirement
under the SOP. Nothing in the SOP states that a one-page, two-sided, prison-provided
Witness Statement form could not be attached to his formal grievance. Second,
following the denial of his formal grievance, the Plaintiff alleges he attempted to appeal.
He has provided the Court with a copy of his Grievance Appeal, and, under his version
of the facts, he obtained and filled out the form, then gave it to Defendant Hill to file.
Defendant Hill never filed the Plaintiff’s grievance appeal. Therefore, under the first
Turner step, taking all the Plaintiff’s allegations as true, the Plaintiff properly exhausted
his available administrative remedies.
Under the second step of Turner, the Court must assess whether the Defendants
have put forth specific facts to disprove the Plaintiff’s allegations. They have not. First,
the Defendants argue that the grievance SOP “contemplates that witness statements (in
the form appended to the policy) will be collected by the counselor in responding to a
formal grievance, not that they will be attached by the inmate to his formal grievance.”
(Doc. 30 at 2) (emphasis added). An examination of the Formal Grievance SOP
section merely indicates that the Plaintiff can attach one additional page to his formal
grievance. Then, following the submission of the formal grievance, the grievance
counselor should investigate, look into witness statements, and then submit his findings.
Perhaps drafters of the SOPs did “contemplate” that prisoners should not attach
Witness Statement forms to formal grievances, but instead wait until their counselors
ask for the forms. But they did not say that in the SOP, and the Court will not write such
a restriction in the SOP grievance procedure. Moreover, nothing on the prison-provided
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Witness Statement form indicates it cannot be used as an attachment to a formal
grievance.
Finally, the Defendants offer no evidence that formal grievances rejected for noncompliance are not appealable. To the contrary, the SOP clearly states “all formal
grievances may be appealed.” (Doc. 13-3 at 8). The Defendants do not respond to the
Plaintiff’s contention that Defendant Hill gave him a grievance appeal form and then,
after the Plaintiff completed the form, failed to file it. They merely argue that their
records do not indicate the Plaintiff filed an appeal, but they fail to dispute the Plaintiff’s
contention that he did file an appeal by giving it to Defendant Hill. The Plaintiff provided
the Court with a dated copy of his completed grievance appeal form. (Doc. 1-2 at 23).
The Plaintiff could not have done more to exhaust his administrative remedies than give
a completed grievance appeal to his grievance counselor, Defendant Hill. Thus, even
under Turner’s second step, the facts show that the Plaintiff adequately exhausted the
available grievance administrative procedures with regard to his First Amendment
access to courts claim.
2.
Motion To Dismiss Standard
The Plaintiff’s substantive claims are subject to the Federal Rule of Civil
Procedure 12(b)(6) standard of review. Therefore, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading cannot survive a motion
to dismiss “if it tenders naked assertions devoid of further factual enhancement.” Id.
(internal quotation marks omitted). Further, pro se pleadings are held to a less stringent
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standard than pleadings drafted by attorneys and are liberally construed. Tannenbaum
v. United States, 148 F.3d 1262, 1263 (11th Cir.1998).
3.
The Plaintiff’s First Amendment Access to Courts Claim against
Defendants Gregory McLaughlin and John Hill
Defendants McLaughlin and Hill are supervisory officials with the Macon State
Prison. The Plaintiff broadly alleges that both men are involved with the refusal of his
legal mail “per Clinton Perry’s implications.” (Doc. 6 at 11-12). However, other than
conclusory allegations, Defendant Hill’s alleged involvement was with regard to the
grievance process, not with the actual denial of the Plaintiff’s legal mail. (Doc. 6 at 1112). The Plaintiff specifically alleges Defendant McLaughlin supervised the
subordinates who refused the Plaintiff’s legal mail and administered the SOPs regarding
mail room operations.
“It is well established in this Circuit that supervisory officials are not liable under
§ 1983 for the unconstitutional acts of the subordinates on the basis of respondeat
superior or vicarious liability.” Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)
(internal quotations and citations omitted). Thus, supervisory officials may only be held
liable when they have (1) personally participated in unconstitutional conduct or (2)
where there is “a causal connection between [their] actions … and the alleged
constitutional deprivation.” Id. To establish this causal connection, a plaintiff must show
that the supervisor either instituted a custom or policy that resulted in the constitutional
violation, directed his subordinates to act unlawfully, or had knowledge his subordinates
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were acting unlawfully and failed to stop the behavior. Gross v. White, 340 Fed. App’x
527, 531 (11th Cir. 2009).6
Here, because the Plaintiff fails to allege specific involvement by McLaughlin or
Hill in the prison’s refusal to give him his legal mail, his claims can only be based upon
McLaughlin’s and Hill’s failure to adequately supervise and implement the SOPs that
would have enabled the Plaintiff to receive his legal mail. However, under § 1983, they
cannot be held liable for the failure to exercise their supervisory responsibilities over
subordinates. The Plaintiff must allege that McLaughlin and Hill somehow participated
in the violation, either by directing their subordinates to violate the Plaintiff’s rights,
establishing a policy or custom that led to the violation of his rights, or by failing to act
when they knew such a violation would likely occur. There is nothing in the Plaintiff’s
complaint or supplemental complaint to indicate that McLaughlin or Hill directed any
person to refuse the Plaintiff’s legal mail. In the absence of such allegations, the
complaint fails to state a First Amendment access to courts claim against Defendants
McLaughlin and Hill upon which relief can be granted.
4.
The Plaintiff’s First Amendment Right to Access Courts Claim
against Defendant Jane or John Doe who was the Macon State
Prison Employee on September 15, 2010.
The Plaintiff sufficiently alleges an access to courts claim against Defendant
John or Jane Doe, who was the Macon State Prison employee designated for receiving
Federal Express deliveries on September 15, 2010. State prisoners have an
enforceable First Amendment right to access the courts under the Fourteenth
Amendment. Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998). A prisoner
6
“Unpublished opinions are not considered binding precedent, but they may be cited as
persuasive authority.” 11th Cir. R. 36-2.
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must show an actual injury as a “constitutional prerequisite” to bring a right to access
courts claim. Bass v. Singletary, 143 F.3d 1442, 1444 (11th Cir. 1988) (citing Lewis v.
Casey, 518 U.S. 343, 351 (1996)).
However, the actual injury requirement is not satisfied by mere frustration of a
legal claim. Lewis, 518 U.S. at 354. An actual injury exists if a direct appeal of a
conviction, a habeas petition, or a non-frivolous civil rights action implicating a basic
constitutional right was frustrated or impeded. Id. at 353–54; Bass, 143 F.3d at 1445.
Further, “a plaintiff seeking to succeed on a claim that [his] right of access to the courts
has been impeded must allege intentional conduct.” Simkins v. Bruce, 406 F.3d 1239,
1242 (10th Cir. 2005) (holding that a prison official’s intentional conduct that interfered
with a plaintiff’s legal mail violated his access to the courts). Thus, the Plaintiff must
allege facts to show intentional conduct by a prison official and an actual injury in the
pursuit of the Plaintiff’s non-frivolous case. Wilson, 163 F.3d at 1291 (citing Lewis, 518
U.S. at 355-57).
Here, the Plaintiff alleges the Defendant rejected his legal mail inhibiting his
ability to file his Application for Discretionary Appeal for a New Trial with the Georgia
Court of Appeals. With regard to an access to courts claim based on the denial of a
prisoner’s legal mail, “the states must permit the prisoner meaningful access to the
postal system as this is typically the only manner in which a prisoner may communicate
with the court.” Gramegna v. Johnson, 846 F.2d 675, 677 (11th Cir. 1988). The actual
denial of legal papers to a prisoner—not the resulting deprivation—is what brings the
claim within the scope of constitutional protection. Wright v. Newsome, 795 F.2d 964,
968 (11th Cir. 1986). To bring a successful access to courts claim based on the denial
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of legal mail, the facts must allege that a particular piece of mail went into the hands of
the defendant or that the defendant instituted a regulation or practice that would delay
receipt of a prisoner’s mail. Gramegna, 846 F.2d at 677.
Additionally, “a prisoner's constitutional right of access to the courts requires that
incoming legal mail from his attorneys, properly marked as such … be opened only in
the inmate's presence.” Al-Amin v. Smith, 511 F.3d 1317, 1325 (11th Cir. 2008). Thus,
prisons may regulate the opening of properly labeled legal mail, but may not
unjustifiably deny access to clearly marked legal mail without infringing on a prisoner’s
constitutional right to access courts.
The Defendants contend that the Plaintiff fails to state an adequate access to
courts claim. First, the Defendants state that “the complaint does not actually allege
with particulars that anyone hindered the Plaintiff’s efforts to make his Court of Appeals
filing deadline.” (Doc.13-1 at 14). The Defendants also contend that the Plaintiff could
have hand-written his appeal in accordance with Georgia Court of Appeals Rule 1(c),
timely filed his hand-written appeal or purchased copies of legal papers from the prison,
instead of sending his Appeal Application to be prepared out of state. (Doc. 13-1 at 1415).
Here, taking the Plaintiff’s facts as true, he alleged sufficient facts to support his
claim that the Defendant John or Jane Doe who is in charge of receiving Federal
Express deliveries on September 15, 2010 denied him access to his legal mail. After
the Plaintiff’s Extraordinary Motion for New Trial in Cobb County, Georgia was denied
on August 20, 2010, he had until September 18, 2010, to timely file for an appeal. The
Plaintiff prepared an Application for Discretionary Appeal in the Georgia Court of
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Appeals and mailed it to a Virginia law firm that provides free copying and typing
services to him. On September 14, 2010, the law firm sent a Federal Express package
overnight that contained six typed copies of his Application for Discretionary Appeal to
the Plaintiff, which was properly labeled with the notation, “Legal Mail-Open w/ Inmate,”
written under the return address on the package label. On September 22, 2010, the
Federal Express package was returned to the law firm marked with the notation,
“Refused: INMATE CANT REC PACKAGE,” and Federal Express records show that
the mail was “refused by recipient facility.” (Doc. 1 at 6).
The alleged facts show that the Macon State Employee who received the
Plaintiff’s Federal Express delivery impeded the Plaintiff’s access to the courts by
refusing the Plaintiff’s package that was properly labeled to indicate legal mail. Further,
this employee’s alleged action directly prevented the Plaintiff from timely filing his
Application for Discretionary Appeal regarding his Motion for New Trial. The law firm
subsequently notified the Plaintiff that his package had been returned on September 22,
2010; however, this was four days after the Plaintiff’s deadline to timely file his appeal.
The Plaintiff then filed his Application on September 29, 2010. It was denied by the
Georgia Court of Appeals in October 2010 as untimely. Thus, as a result of the
prison’s denial of the Plaintiff’s legal mail, the Plaintiff missed his opportunity to timely
file his Application for Discretionary Appeal with the Georgia Court of Appeals by the
deadline of September 18, 2010. Therefore, taking the Plaintiff’s facts as true, he
sufficiently alleges a claim that he was denied access to his legal mail.
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B.
The Plaintiff’s Retaliation Claim
The Plaintiff alleges that Defendant Hill retaliated against him in violation of his
First Amendment rights by threatening to put the Plaintiff in isolation if he pursued his
appeal of the denial of his formal grievance. The Magistrate Judge recommends
granting Defendant Hill’s motion to dismiss because the Plaintiff has failed to state a
First Amendment claim of retaliation. The Plaintiff failed to allege that Defendant Hill’s
conduct had any adverse effect on his speech because the Plaintiff contends he still
attempted to file a grievance appeal. Thus, Defendant Hill’s conduct did not deter the
Plaintiff from attempting to appeal the denial of his grievance, nor is there any evidence
that Defendant Hill acted on his threats.
Pursuant to 28 U.S.C. § 636(b)(1), the Court has thoroughly considered the
Plaintiff’s objection to the portions of the Recommendation pertaining to the Plaintiff’s
retaliation claim but concludes that his objections do not warrant rejection or
modification of the Magistrate Judge’s findings. The Court accepts and adopts the
findings, conclusions and recommendations of the Magistrate Judge, and the Motion to
Dismiss is GRANTED with regard to the Plaintiff’s retaliation claim.
IV.
CONCLUSION
The Recommendation is adopted only with regard to the Plaintiff’s First
Amendment retaliation claim. With regard to the Plaintiff’s First Amendment right to
access courts claim, he has properly exhausted his administrative remedies regarding
the issue. However, the Plaintiff fails to state a claim against Defendants Gregory
McLaughlin and John Hill, and the Motion to Dismiss is GRANTED with regard to
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Defendants McLaughlin and Hill. Further, the Plaintiff’s Motion to Amend and add a
necessary party defendant and Motion to Dismiss Defendants Mary Colbert, Jamie Hall
and Lorrita Johnson are both GRANTED. The Plaintiff has sufficiently stated a First
Amendment right to access courts claim against Defendant Jane or John Doe.
Therefore, the only remaining claim is the Plaintiff’s access to courts claim against
Defendant Jane or John Doe in charge of receiving Federal Express deliveries at
Macon State Prison on September 15, 2010.
Because no service can be made on Defendant Jane or John Doe in charge of
receiving Federal Express deliveries for Macon State Prison on September 15, 2010,
the Court will allow the Plaintiff to perform limited discovery on Defendant Warden
Gregory McLaughlin in order to determine the name of this employee. The Plaintiff shall
have 60 days from the date of this order to ascertain the identity of this employee and to
substitute the employee’s name as the Defendant. The Order dismissing the
Defendants shall be effective upon the expiration of the 60 day discovery period.
Should the Plaintiff fail to ascertain the identities of Defendant Jane or John Doe in
charge of receiving Federal Express deliveries at Macon State Prison on September 15,
2010 and amend his Complaint within the 60 day time period, the Defendants, and the
entire case, will be dismissed.
SO ORDERED, this the 26th day of March, 2012.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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