SHERI POLSTER CHAPPELL, District Judge.
This matter comes before the Court upon review of the following:
As discussed below, the Court concludes that each defendant is entitled to summary judgment as a matter of law on Plaintiff's claims. Plaintiff's motion for summary judgment is denied.
Plaintiff initiated this action on April 22, 2013 by filing a civil rights complaint against Defendants Librarian William Baysah, Public Defender Robert Kalter, Warden Vickie Langford, Colonel Donald Leavins, Assistant Warden Bernard Mount, and Assistant Warden Chuck Sexton (Doc. 1). A frivolity review was conducted on the complaint, and Defendant Kalter was dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) (Doc. 27). Plaintiff filed an amended complaint on January 17, 2014 and a second amended complaint on May 30, 2014 (Doc. 29; Doc. 71).
Defendants filed a motion to dismiss Plaintiff's second amended complaint (Doc. 72). The Court dismissed Plaintiff's claims for compensatory and punitive damages pursuant to 28 U.S.C. § 1997e(e) because Plaintiff had alleged no physical injury resulting from Defendants' allegedly unconstitutional actions (Doc. 77). Baysah was dismissed as a defendant pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Id. at 13. Plaintiff was allowed to seek nominal damages on his retaliation and interference with access to the court claims. Id.
The facts giving rise to Plaintiff's second amended complaint stem from a search for contraband that took place at Hendry Correctional Institution's law library on June 25, 2010. Plaintiff alleges that Defendant Leavins entered the library and threw "large volumes of boxes containing legal documents into trash bends [sic]." Doc. 71 at ¶ 4. Three days later, Plaintiff reported to his work station and discovered "that all his legal documents, transcripts, records, letters, briefs from his desk were gone." Id. at ¶ 7. The filing cabinets in which Plaintiff kept his legal documents were also gone. Id. at ¶ 8.
On June 28, 2010, Defendants Langford, Leavins, Mount, and Sexton entered the law library, and Plaintiff "made a verbal complaint to Defendant Langford about the destruction of his legal documents." (Doc. 71 at ¶ 12). Defendant Mount told Plaintiff that Defendant Leavins threw away nothing that had been properly stored. Id. at ¶ 13.
On June 30, 2010, Plaintiff approached Defendants Langford, Mount, and Sexton again to ask about the destruction of his legal material (Doc. 71 at ¶ 14). Defendant Sexton told Plaintiff that the material had not been properly stored. Id. at ¶ 15. Defendant Langford told Plaintiff that Librarian Baysah had authorized the destruction, but upon inquiry, Baysah denied the allegation. Id. at ¶ 16-17. Baysah said that Defendants Langford, Sexton, and Mount had ordered Defendant Leavins to search the library and confiscate legal material. Id. at ¶¶ 17-19, 22-24.
In June of 2010, Plaintiff's family hired an attorney to raise a belated jury instruction claim in Plaintiff's state criminal case (Doc. 71 at ¶ 33). Plaintiff could not raise his "meritorious claim" adequately "because of the legal material that was destroyed by Defendants in this cause." Id. at ¶ 42. "[W]ithout ever touching on the merits of [Plaintiff's] constitutional claims, the [state] court has decided to ban [Plaintiff] from any more filing with court in violation of [Plaintiff's] equal protection rights." Id. at ¶ 8.
On April 8, 2011, Defendant Leavins retaliated against Plaintiff for filing grievances about the alleged destruction by locking him in administrative confinement (Doc. 71 at ¶ 48). Thereafter, Defendant Leavins entered Plaintiff's cell and confiscated all copies of the grievances he had filed in regards to the destruction of his legal material. Id. at ¶ 49. On April 13, 2011, Defendant Langford transferred Plaintiff from Hendry Correctional Institution to South Florida Reception Center. Id at ¶ 51.
Plaintiff's First Amendment interference with access to the courts ("interference") claim against Defendants Leavins, Langford, Mount, and Sexton and retaliation claim against Defendant Leavins are presently before the Court.
Plaintiff has labeled his motion for summary judgment as a "Statement of Undisputed Facts." (Doc. 97). However, the motion merely restates the allegations in the second amended complaint, and states as "undisputed facts" assertions that are disputed. In support of his motion, Plaintiff attaches the following: (1) declaration of Charles Fleming; (2) declaration of Dallas Y. Goodloe; (3) declaration of Troy Swint; (4) declaration of James Parham; (5) declaration of Noel Reid; (6) declaration of Jonathon R. Major; (7) declaration of Borden Alford; (8) declaration of Charles H. Wright; (8) Plaintiff's June 28, 2010 informal grievance; (9) Defendant Mount's response to the informal grievance; (10) Plaintiff's formal grievance to Defendant Langford; and (11) Defendant Langford's response to the formal grievance (Doc. 97-1; Doc. 97-2; Doc. 97-3; Doc. 97-4; Doc. 97-5; Doc. 97-6; Doc. 97-7; Doc. 97-8; Doc. 97-9; Doc. 97-10; Doc. 97-11).
In response to Plaintiff's motion for summary judgment, Defendants filed a request for judicial notice in which they attach the docket sheet of Plaintiff's underlying state-court criminal case and copies of five state-court orders denying Plaintiff's motions for post-conviction relief (Doc. 104). Defendants also note that the affidavits submitted by Plaintiff in support of his motion for summary judgment are unsworn and argue that "Plaintiff has alleged no facts which show, without dispute, that the Defendants acted outside of their discretionary authority to maintain order in the library." (Doc. 105 at 2-3, 5). Defendants urge that "Plaintiff's Motion appears to be seeking damages without limitation" even though Plaintiff's damages have been limited to nominal damages of one dollar. Id. at 6. Defendants also assert that Plaintiff did not exhaust his administrative remedies as to any claim except for the claim involving Defendant Leavins' alleged removal of his legal materials from the library. Id. at 8-9. In support of their response, Defendants attach Defendant Leavins' Answers to Plaintiff's Interrogatories (Doc. 105-1); Defendant Langford's Answers to Plaintiff's Interrogatories (Doc. 105-2); Defendant Leavins' Affidavit (Doc. 105-3); and Defendant Langford's Affidavit (Doc. 105-4).
In Defendants' Motion for Summary Judgment (Doc. 107), they argue that: (1) there is no record evidence to support Plaintiff's allegation that Defendant Leavins ordered the search team to throw away Plaintiff's legal material without justification; (2) there is no record evidence to demonstrate that the Plaintiff had properly stored his legal material in accordance with FDOC procedures; (3) there is no record evidence to demonstrate the intentional disposal of any legal documents; (4) Plaintiff failed to demonstrate the frustration of any legal claim of his which had arguable merit; (5) Defendants are entitled to qualified immunity; (6) Defendants are entitled to Eleventh Amendment immunity; (7) Plaintiff's claims for compensatory and punitive damages are barred pursuant to U.S.C. § 1997e(e); and (8) Plaintiff failed to exhaust his administrative remedies (Doc. 107 at 2-3). In support of their motion, Defendants reference: the Affidavit of Defendant Langford (Doc. 105-4); Form DC5-153 (Doc. 105-4); the Affidavit of Donald Leavins (Doc. 105-3); the Affidavit of Ben Mount (Doc. 107-2); Plaintiff's Informal Grievance and Response (Doc. 97-9); Plaintiff's Formal Grievance and Response (Doc. 97-11); the docket sheet and two orders from Plaintiff's underlying criminal case (Doc. 104-2); Defendants' Request for Judicial Notice (Doc. 104); and Plaintiff's Grievance Appeal (Doc. 74-1).
Summary judgment is appropriate only if it is shown "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Supreme Court has explained the summary judgment standard as follows:
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant may meet this burden by presenting evidence that would be admissible at trial indicating there is no dispute of material fact or by showing that the nonmoving party has failed to present evidence in support of some elements of its case on which it bears the ultimate burden of proof. Celotex, 477 U.S. at 322-324.
If the party seeking summary judgment meets the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, (1986).
Title 42, U.S.C. § 1997e(a) provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id. When a grievance procedure is provided for prisoners, an inmate alleging harm suffered from prison conditions must file a grievance and exhaust the remedies available under that procedure before pursuing a federal lawsuit. Johnson v. Meadows, 418 F.3d 1152, 1156 (11th Cir. 2005).
Upon initial review of Plaintiff's first complaint, the Court noted that although Plaintiff asserted that he had exhausted his administrative remedies pursuant to Florida Administrative Code Chapter 33-103, he directed the Court to pleadings filed in Case No. 2:11-cv-236-FtM-36DNF as evidence of exhaustion (Doc. 1 at 5) The Court advised Plaintiff that "[a]sking the Court to comb through pleadings in unrelated cases in order to verify exhaustion of the claims raised in [the instant] complaint is inappropriate." (Doc. 15, filed June 27, 2013). Plaintiff was ordered to submit all required grievances, appeals, and responses to the Court to verify that his claims were exhausted. Id. In response, Plaintiff argued that all grievances had been confiscated by the defendants and destroyed (Doc. 20 at 2). Plaintiff urged that the state had access to the grievances and asked the Court to issue a subpoena for their production. Id. The Court excused Plaintiff from producing the grievances at that time, but explained that "[s]hould the defendants raise [failure to exhaust as an affirmative defense], Plaintiff may file a new motion for an order from this Court that the grievance coordinator produce copies of his grievances." (Doc. 21 at 2).
In answer to Plaintiff's second amended complaint, Defendants raised Plaintiff's failure to exhaust his administrative remedies as their Sixth Affirmative Defense (Doc. 79 at 3-4). Even so, Plaintiff did not seek an order from the Court for the grievance coordinator to produce the grievances. Instead, Plaintiff argued in response to Defendants' answer that he was no longer required to produce any evidence of exhaustion because Defendants had waived an exhaustion defense by failing to raise it in their motion to dismiss (Doc. 84 at 6). Defendants raised the issue of Plaintiff's failure to exhaust again in their motion for summary judgment, arguing that Plaintiff exhausted his administrative remedies only as to Defendant Leavins' removal of Plaintiff's legal work from the prison library (Doc. 107 at 21).
Plaintiff has cited no authority for the proposition that an exhaustion defense is waived if not presented in a motion to dismiss. Indeed, the Eleventh Circuit has stated that the exhaustion defense "is not ordinarily the proper subject for summary judgment; instead it should be raised in a motion to dismiss,
In this case, the parties' exhaustion argument (on both the retaliation and interference claims) can be resolved at step one of the inquiry explained above. Notably, Plaintiff's and Defendants' versions of the facts relating to exhaustion are not in conflict. Plaintiff asserts that "[o]n or about April 8, 2011, Defendant Leavins retaliated against Plaintiff by locking him in administrative confinement for the filing of grievance regard [sic] his legal work." (Doc. 71 at 8). Plaintiff does not claim to have filed any grievances in relation to the alleged retaliation. Rather, he asserts that he could not produce the grievances regarding his interference claims because Defendant Leavins "confiscated all the provided copies of grievances
Even accepting Plaintiff's facts as true, Defendants are entitled to dismissal of Plaintiff's retaliation claims due to Plaintiff's failure to exhaust his administrative remedies.
Likewise, Defendants do not dispute that Plaintiff filed grievances pertaining to the June 25, 2010 incident that resulted in the destruction of Plaintiff's legal material.
Plaintiff argues that the destruction of his legal materials interfered with his right of access to the courts (Doc. 71 at 8). Prisoners have a fundamental right of access to the courts under the First Amendment. Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). However, even the intentional destruction of legal material by prison officials does not, standing alone, establish a constitutional interference claim. The United States Supreme Court has established that in order to have standing to bring a claim for denial of access to the courts, the inmate must establish that he suffered an actual injury to a non-frivolous claim as a result of the defendants' alleged interference. Lewis, 518 U.S. at 349; see also Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998). An "actual injury" does not occur "without a showing that such a claim has been lost or rejected, or that the presentation of such a claim is currently being prevented." Root v. Towers, 238 F.3d 423 (6th Cir. 2000) (citing Lewis, 518 U.S. at 354-56). In other words, an inmate who claims that his access to the courts was interfered with fails to state a claim unless he shows prejudice to his litigation.
In their motion for summary judgment, Defendants strenuously argue that they are not liable for the destruction of Plaintiff's legal papers because the papers were improperly stored (Doc. 107 at 5). Defendants also argue that, "even if Plaintiff were able to show a valid DC5-153 form authorizing him to retain his legal materials in the library, which he has never made part of the evidence in this case, his 1988 case clearly lacks merit[.]" (Doc. 107 at 12-13). In support of their assertion, Defendants point to numerous post-conviction pleadings from Plaintiff's state-court criminal conviction, all of which were denied (Doc. 104-1; Doc. 104-2). Defendants also note that Plaintiff has been barred from filing additional pro se pleadings in state court regarding his conviction (Doc. 104-2 at 7).
In response, Plaintiff argues that his filing bar in state court is irrelevant because it refers to pro se pleadings and occurred three years after the facts giving rise to this case. He notes that his frustrated legal claim was filed by counsel on June 30, 2010, only five days after his legal materials were destroyed by Defendant Leavins (Doc. 112 at 16).
(Doc. 113-10). Plaintiff now argues that he waited almost twenty years to raise the claims set forth in his belated petition because he was "affirmatively misled about the results of his direct appeal," and that two similar cases in the early 1990's were reversed due to a jury instruction error that appellate counsel failed to raise (Doc. 112 at 14) (citing Kitchen v. State, 592 So.2d 773 (Fla. 3d DCA 1992) and Peters v. State, 598 So.2d 199 (Fla. 3d DCA 1992)).
Prior to 1997, a claim alleging ineffective assistance of appellate counsel was raised by way of a petition for writ of habeas corpus, and there was no specific time limitation to raise this claim. See Rogers v. Singletary, 698 So.2d 1178, 1179 (Fla. 1996). However, the time to bring a claim was not unlimited because the doctrine of laches could bar a habeas corpus petition claiming ineffective assistance of appellate counsel. See McCray v. State, 699 So.2d 1366, 1368 (Fla. 1997). In McCray, the Florida supreme court concluded that any habeas corpus petition is presumed to be the result of an unreasonable delay and prejudicial to the State if the petition was filed more than five years from the date the petitioner's conviction became final. Id. The presumption could only be overcome if the petitioner made specific factual allegations under oath that he or she was affirmatively misled by counsel about the results of the appeal. Id. As of January 1, 1997, the time limits on bringing claims of ineffective assistance of appellate counsel are governed by the rules of appellate procedure which require that habeas petitions be filed within two years after the judgment and sentence become final on direct review unless the petition "alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel." See Fla. R. App. P. 9.141(d)(5); McCray, 699 So.2d at 1367-68.
Although Plaintiff argues that he was "affirmatively misled" by appellate counsel — presumably because he believes he received bad advice when counsel informed him that nothing else could be done — Plaintiff's own sworn affidavit shows that he was not affirmatively misled about the
The records and pleadings before this Court conclusively show that Defendants' destruction of Plaintiff's legal materials did not impede his efforts to pursue a non-frivolous legal claim. Accordingly, Plaintiff has not shown an actual injury from the destruction of his legal materials, and Defendants are entitled to summary judgment on Plaintiff's interference claims as a matter of law. See Lewis, 518 U.S. at 352-54; Fed. R. Civ. P. 56(a).
In accordance with the foregoing, it is hereby
1. Defendants' Motion for Summary Judgment (Doc. 107) is
2. Plaintiff's Motion for Summary Judgment (Doc. 97) is
3. With no remaining defendants or claims, the
In its August 21, 2013 order barring Plaintiff from filing additional pro se post-conviction pleadings, Florida's Third District Court of Appeal listed seventeen post-conviction motions that have been filed by Plaintiff and rejected by the state courts (Doc. 113-16 at 4). The court noted that Plaintiff "argues his appellate counsel was ineffective for failing to discover fundamental error in instructing the jury on manslaughter without [] defining the terms excusable or justifiable homicide." Id. (internal quotations omitted). The court further noted that "[a]fter careful review of the exhaustive filings by Williams, and after thorough review of the case law, we disagree with Williams' view that this latest proceeding is not frivolous. In fact, of the multiple cases Williams has filed with this court, none have been found to be meritorious." Id. at 5.
