MARTIN v. BARROW et al
Filing
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ORDER Dismissing Plaintiff's complaint; granting 2 Motion for Leave to Proceed in forma pauperis only for the purpose of dismissal; denying 3 Motion to Appoint Counsel. Ordered by U.S. District Judge C ASHLEY ROYAL on 1/6/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JERRY DEWAYNE MARTIN,
Plaintiff
VS.
Warden DONALD BARROW, et. al.,
Defendants
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NO. 5:14‐CV‐0432‐CAR‐MSH
ORDER
Plaintiff JERRY DEWAYNE MARTIN, a state inmate currently confined at
Washington State Prison in Davisboro, Georgia, has filed a pro se civil rights complaint in
this Court seeking relief under 42 U.S.C. § 1983. The Court has now conducted a
preliminary review of Plaintiff’s Complaint, as required by 28 U.S.C. § 1915A(a), and
finds that Plaintiff’s allegations fail to state a claim upon which relief may be granted.
The Complaint is accordingly DISMISSED. See 28 U.S.C. § 1915A(b)(1). Plaintiff’s
Motion to Proceed in forma pauperis (Doc. 2) is GRANTED only for the purpose of this
dismissal; and Plaintiff’s Motion for the Appointment of Counsel (Doc. 3) is DENIED.
I.
Motion to Proceed in forma pauperis
Plaintiff has requested leave to proceed in this action without prepayment of the
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filing fee. See 28 U.S.C. § 1915. Upon review of Plaintiff’s pauper’s affidavit and the
allegations in his Complaint, Plaintiff’s Motion will be GRANTED, but only for the
purposes of dismissal.
II.
Motion for Appointment of Counsel
Plaintiff has also requested that counsel be appointed to assist him in prosecuting
this case. Under 28 U.S.C. § 1915(e)(1), the district court “may request an attorney to
represent any person unable to afford counsel.” There is, however, “no absolute
constitutional right to the appointment of counsel” in a § 1983 lawsuit. Poole v.
Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987). Appointment of counsel is a privilege
that is justified only by exceptional circumstances. Lopez v. Reyes, 692 F.2d 15, 17 (5th
Cir. 1982). In deciding whether legal counsel should be provided, the Court considers,
among other factors, the merits of Plaintiff’s claim and the complexity of the issues
presented. Holt v. Ford, 682 F.2d 850, 853 (11th Cir. 1989).
In this case, Plaintiff has filed a standard § 1983 pro se complaint. The Court is
now required to review the Complaint to determine whether Plaintiff’s allegations state
a colorable legal claim. This process is routine in pro se prisoner actions and is thus not
an “exceptional circumstances” justifying appointment of counsel. The facts stated in
Plaintiff’s Complaint are not complicated; and the law governing Plaintiff’s claims is
neither novel nor complex. Plaintiff’s Motion (Doc. 3) is accordingly DENIED.
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III.
Preliminary Review of Plaintiff’s Complaint
Because Plaintiff is a prisoner “seeking redress from a governmental entity or [an]
officer or employee of a governmental entity,” the district court is required to conduct a
preliminary screening of his Complaint. See 28 U.S.C. § 1915A(a). For those reasons
stated herein, the Court finds that Plaintiff’s Complaint fails to state a claim upon which
relief may be granted.
A. Standard of Review
When conducting a preliminary review, the district court must accept all factual
allegations in the complaint as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir.
2004). Pro se pleadings are also “held to a less stringent standard than pleadings drafted
by attorneys” and will be “liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
A pro se pleading is, nonetheless, subject to dismissal prior to service if the court
finds that the complaint, when construed liberally and viewed in the light most
favorable to the plaintiff, fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915A(b)(1). To state a claim, a complaint must include “enough factual matter
(taken as true)” to “give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests[.]” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555‐56,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must also allege sufficient facts to
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“raise the right to relief above the speculative level” and create “a reasonable
expectation” that discovery will reveal evidence necessary to prove a claim. See id.
“Threadbare recitals of the elements of cause of action, supported by mere conclusory
statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009).
B. Plaintiff’s Complaint
The present action arises out of Plaintiff’s criminal prosecution, confinement at
Washington State Prison, and his post‐conviction filings in the Superior Court of Murray
County, Georgia. The Complaint shows that Plaintiff was convicted on charges of
aggravated child molestation in June of 2005 and that his conviction was thereafter
affirmed on appeal. Plaintiff contends, however, that his conviction is unlawful; and he
thus filed a “motion to quash” his indictment in Murray County Superior Court in
February of 2013, nearly eight years after his conviction and unsuccessful appeal.
Plaintiff alleges that the state court judge, William Boyett, and the court clerk, Donna
Flood, unreasonably delayed filing and ruling on this motion and others. Plaintiff’s
motion to quash was then denied “with no finding of fact or conclusion of law.”
Plaintiff apparently wished to appeal the denial of his post‐conviction motion to
quash. However, his attempt was allegedly unsuccessful because the prison law library
– also the place where Plaintiff received his indigent supplies – was closed at some point
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during the thirty‐day period in which the appeal was required to be filed. Plaintiff was
allegedly unable to get supplies during from August 7 until August 22, 2013. He claims
that periodic closing of the prison library is an unconstitutional attempt to save money.1
Plaintiff filed the present action against Judge Boyett, Donna Flood, and Warden
David Barrow, under § 1983 for violations of his right to access the courts.
A. Claim Against Judge Boyett
As a state judge, Defendant Boyett is absolutely immune in a § 1983 suit for
damages for judicial acts done within the jurisdiction of the court. Bolin v. Story, 225
F.3d 1234, 1239 (11th Cir.2000) (citations omitted). Unless a judge has acted in clear
absence of all jurisdiction, his or her acts are protected by judicial immunity no matter
how injurious they may be to the plaintiff. See id. This is true even if the acts are
alleged to be malicious, in excess of jurisdiction or authority, procedurally erroneous or
corrupt, or done pursuant to bribe or conspiracy. See id.
Here, Plaintiff alleges that Judge Boyett erred in taking too long to consider and
denying his motions. Plaintiff’s claims are thus related to the actions of Judge Boyett
acting within his capacity as a superior court judge. Absolute judicial immunity is an
“obvious bar” to his claims. Sibley v. Lando, 437 F.3d 1067, 1070 n.2 (11th Cir. 2005).
1 Plaintiff also alleges that he is being denied “proper yard call.” This cursory allegation is in sufficient to
state a claim and is not linked to the conduct of a named defendant. The Court also does not find this fact
relevant to any of Plaintiff’s other allegations.
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To the extent Plaintiff is alleging that his conviction and confinement are
unlawful, those claims also fail because a prisoner cannot challenge the fact or duration
of his confinement in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 487 (1994).
B. Claims Against Donna Flood
As a court clerk, Defendant Flood, enjoys a “narrower ambit of immunity.”
Hyland v. Kolhage, 267 F. Appʹx 836, 842 (11th Cir. 2008). Federal courts have held that
“a court clerk who disobeys a court order, or exceeds his or her statutory authority by
failing to file papers, loses the defense of absolute immunity” if the evidence suggests
the clerk failed “to discharge a mandatory, nondiscretionary duty.” Coleman v.
Farnsworth, 90 F. Appʹx 313, n.5 (10th Cir. 2004) (citing McCray v. Maryland, 456 F.2d 1,
5 (4th Cir. 1972). Yet, even if Defendant Flood is not entitled to absolute immunity and
Plaintiff’s allegations are true, his Complaint still fails to state a valid claim against her.
To state a claim for denial of access‐to‐the courts, a prisoner must show more than
that his access to the courts was impeded by the defendant. The defendant’s conduct
must have “caused [the prisoner] ‘actual injury’—that is, ‘actual prejudice . . . such as the
inability to meet a filing deadline or to present a claim.’” Lewis v. Casey, 518 U.S. 343,
351 (1996). The prisoner must also demonstrate that this injury occurred in a specific
type of non‐frivolous case: It must have occurred in the pursuit of either a direct or
collateral attack on his sentence or a challenge to the conditions of his confinement.
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Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998).
Here, Plaintiff fails to show how he suffered any injury as a result of Defendant
Flood’s alleged conduct. According to the Complaint, the motions were eventually
considered and ruled upon by Judge Boyett; and there is nothing in the Complaint
which suggests that any motion was denied because of a delay in filing it.
Plaintiff’s allegations also fail to show that the motion to quash his indictment,
filed nearly eight years after his 2005 conviction and unsuccessful appeal, was a
“non‐frivolous filing.” The same is true to the extent Plaintiff has attempted to bring
access‐to‐the‐courts claims based on other “motions” filed in the Murray County
Superior Court. Plaintiff does not provide enough information about these motions to
establish an actual injury. See Bryant v. Ruvin, 477 F. Appʹx 605, 607 (11th Cir. 2012)
(affirming dismissal where prisoner failed to provide sufficient information for court to
determine if underlying claim was frivolous). See also Moore v. Plaster, 266 F.3d 928,
933 (8th Cir.), cert. denied, 535 U.S. 1037 (2002).
The Court additionally finds that Plaintiff’s self‐serving, conclusory allegations
about a retaliatory motive are not sufficient to show that the delayed filings were
intentional, and not merely negligent. Evidence of negligent conduct will not support
an access‐to‐the courts claim. See also Tucker v. IʹJama, 361 F. App’x 405, 407–08 (3rd
Cir. 2010) (holding that clerk was at most negligent “which is an insufficient basis for
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liability on a denial of access claim under 42 U.S.C. § 1983”).
C. Claims Against Warden Donald Barrow
Although named as a party in the caption of the Complaint, Plaintiff does not
make any allegations against Warden Barrow. Warden Barrow may not be held liable
for the actions of his subordinates under § 1983 based on the theory of respondeat
superior or vicarious liability. To state a claim against a prison warden, Plaintiff must
allege facts showing either that the warden personally participated in the alleged
constitutional violation or that there is a causal connection between the actions of the
warden and the alleged constitutional deprivation. See H.C. by Hewett v. Jarrard, 786
F.2d 1080, 1086‐87 (11th Cir. 1986). Plaintiff does not make such allegations.
Yet, even if Plaintiff could establish that the prison library was closed due to some
cost‐savings policy implemented by Warden Barrow, an access‐to‐the‐courts claim
against him still fails. Again, Plaintiff does not allege sufficient facts to show that this
was a non‐frivolous appeal. See Bryant, 477 F. App’x at 607. The Complaint also only
specifically alleges that Plaintiff was unable to “access indigent supplies” from August 7
to August 22, 2013, see Compl. at 10. Plaintiff does not allege why he was unable to
prepare his notice of appeal during the time in the thirty‐day period when the prison
library was not closed. Plaintiff has thus failed to show how Warden Barrow’s periodic
closing of the library caused him an actual injury.
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IV.
Conclusion
Plaintiff has therefore failed to state a claim upon which relief may be granted;
and his Complaint is DISMISSED pursuant to 28 U.S.C. § 1915A(b)(1). Plaintiff’s
Motion to Proceed in forma pauperis (Doc. 2) is GRANTED only for the purpose of this
dismissal; and his Motion for the Appointment of Counsel (Doc. 3) is DENIED.
SO ORDERED this 5th day of January, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL, Judge
UNITED STATES DISTRICT COURT
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