Filed: Dec. 19, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 12-14314 Date Filed: 12/19/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-14314 Non-Argument Calendar _ D.C. Docket No. 5:11-cv-00109-LGW-JEG JESUS ROBLES, Plaintiff-Appellant, versus DIRECTOR THOMAS R. KANE, Federal Bureau of Prisons; in his official capacity, Defendant, WARDEN, The GEO Group, D. Ray James Correctional Facility; in his official capacity, PHILIP CHILDS, TAMERA CREWS, MS. FUENTES, Defendants-Appellees. Case: 12-
Summary: Case: 12-14314 Date Filed: 12/19/2013 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-14314 Non-Argument Calendar _ D.C. Docket No. 5:11-cv-00109-LGW-JEG JESUS ROBLES, Plaintiff-Appellant, versus DIRECTOR THOMAS R. KANE, Federal Bureau of Prisons; in his official capacity, Defendant, WARDEN, The GEO Group, D. Ray James Correctional Facility; in his official capacity, PHILIP CHILDS, TAMERA CREWS, MS. FUENTES, Defendants-Appellees. Case: 12-1..
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Case: 12-14314 Date Filed: 12/19/2013 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14314
Non-Argument Calendar
________________________
D.C. Docket No. 5:11-cv-00109-LGW-JEG
JESUS ROBLES,
Plaintiff-Appellant,
versus
DIRECTOR THOMAS R. KANE,
Federal Bureau of Prisons; in his official capacity,
Defendant,
WARDEN,
The GEO Group, D. Ray James Correctional
Facility; in his official capacity,
PHILIP CHILDS,
TAMERA CREWS,
MS. FUENTES,
Defendants-Appellees.
Case: 12-14314 Date Filed: 12/19/2013 Page: 2 of 10
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(December 19, 2013)
Before CARNES, Chief Judge, PRYOR and MARCUS, Circuit Judges.
PER CURIAM:
Jesus Robles, a federal prisoner proceeding pro se, appeals the district
court’s dismissal of his Bivens suit.1
I.
This case arises from a dispute over legal mail sent to Robles while he was
serving his federal prison sentence at the D. Ray James Correctional Facility (the
Facility) in Folkston, Georgia.2 In December 2009 Robles was tried and convicted
in the United States District Court for the District of Kansas of conspiracy to
possess, and possession of, marijuana with the intent to distribute. See United
States v. Robles, 434 F. App’x 736, 736–39 (10th Cir. 2011). Robles was
sentenced to 64 months imprisonment and transferred to the Facility, which is a
privately owned prison that operates under a contract with the Bureau of Prisons
(BOP). Its employees work for The GEO Group, Inc., not the federal government.
1
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
91 S. Ct. 1999 (1971).
2
Because the district court granted the defendants’ motion to dismiss, we take the facts as
alleged in Robles’ complaint. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d
1282, 1291 (11th Cir. 2007).
2
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In May 2010 Robles appealed his convictions to the Tenth Circuit. While
his appeal was pending, officials at the Facility interfered with his receipt of five
pieces of legal mail. In 2011 the Facility received legal mail addressed to Robles
that was postmarked January 25, January 28, February 2, February 28, and March
8. Yet Robles did not promptly receive that mail once the prison’s mailroom
processed it. After he made “many inquiries” and “mention[ed] an investigation
by Federal authorities,” he received three of those pieces of mail on March 24,
2011, and a fourth piece on March 25, 2011. He never received the transcripts that
were included with the January 28 letter, 3 and the February 28 letter had been
opened outside his presence. The exhibits Robles attached to his complaint show
that the January 28 letter included transcripts of his trial and sentencing, and the
February 28 letter contained those same transcripts along with copies of the
previous letters he had not received.4 The Facility officials running the mailroom
did not tell Robles why his mail had been delayed or where it had been.
While Robles was attempting to secure his mail, his direct appeal was
pending in the Tenth Circuit. The docket for that appeal shows that the transcripts
of Robles’ trial and sentencing hearing were available electronically on the Tenth
3
Robles’ exhibits include a letter from his attorney dated January 28, on which Robles has
written “missing.” The letter says that the attorney had enclosed copies of his trial and
sentencing transcripts. We thus infer that what is “missing” is the records that were included
with the letter.
4
The exhibits do not reveal the contents of the other three letters.
3
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Circuit’s case management system on November 24, 2010. See United States v.
Robles, No. 10-3119 (10th Cir. Nov. 24, 2010) (filing record on appeal). The
public defender representing Robles on appeal moved for and received several
extensions on the deadline to file a merits brief — until the Tenth Circuit set a final
deadline of March 4, 2013. The motions indicate that his attorney asked for the
extensions based on the length of the record and the demands of her caseload, not
because of any difficulty communicating with Robles. See, e.g., Robles, No. 10-
3119 (10th Cir. Jan. 25, 2011) (moving for an extension of time to file the
appellant’s opening brief). Robles’ attorney met the deadline, filing a 52-page
brief on March 4 that challenged his convictions based on the trial court’s
admission of evidence of his past drug dealing under Federal Rule of Evidence
404(b). The Tenth Circuit was not persuaded and affirmed Robles’ conviction in
August 2011. See Robles, 434 Fed. App’x at 741.
Three other incidents with Robles’ legal mail occurred after his criminal
appeal concluded. In December 2011, officials opened a letter outside of Robles’
presence that was marked “LEGAL MAIL-OPEN IN THE PRESENCE OF THE
PRISONER” and addressed from “David C. Faith ATTORNEY AT LAW.” In
January 2012, Robles received a piece of legal mail without any “markings” on the
envelope to indicate when the letter arrived at the Facility. And in February 2012,
4
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a piece of Robles’ legal mail was delivered to another inmate who opened it
outside Robles’ presence.
Robles filed this civil suit in November 2011. His amended complaint
asserted that the interference with his mail violated his First Amendment right to
communicate privately with his attorney and his constitutional right of access to
the courts. He also claimed that the defendants violated his First Amendment right
to petition the government for redress of grievances by “fail[ing] to address his
allegations of legal mail interference and depriv[ing] him of a remedy.” He named
as defendants the BOP; the BOP’s then acting director, Thomas Kane; The GEO
Group; the warden; and several other Facility officials. The district court
dismissed the complaint against the BOP and Kane because Bivens claims cannot
be brought against agencies and Robles failed to allege that Kane had actual
knowledge of the actions at issue in the suit. The remaining defendants moved to
dismiss the complaint, and a magistrate judge issued a report and recommendation
concluding that the court should dismiss Robles’ complaint because he had
adequate state law remedies for pursuing his claims. The district court adopted
that recommendation over Robles’ objections and dismissed his complaint.
II.
We review de novo the district court’s decision to dismiss a complaint for
failure to state a claim, accepting the complaints allegations as true. Miller v. U.S.
5
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Dep’t of Agr. Farm Servs. Agency, 143 F.3d 1413, 1414–15 (11th Cir. 1998).
Because Robles is a prisoner proceeding pro se, we liberally construe his
pleadings. Boxer X v. Harris,
437 F.3d 1107, 1110 (11th Cir. 2006). His
complaint makes three claims based on three different rights. None states a
plausible claim for relief.
First, Robles contends that the defendants violated his right of access to the
courts. To state a claim for relief, Robles had to allege, among other things, that
the interference with his legal mail caused him “actual injury.” Al-Amin v. Smith,
511 F.3d 1317, 1332 (11th Cir. 2008). Actual injury here means a tangible
disadvantage to Robles in his criminal appeal, such as a missed filing deadline or a
foregone claim. See
id. at 1332–33. Neither Robles’ complaint nor his briefs
identify any such disadvantage. The record shows that his attorney had months to
prepare his appeal and filed a 52-page brief arguing for the reversal of his
convictions. Robles never explains what arguments would have been added to that
brief if he had received the five pieces of legal mail on time. Thus he fails to state
a claim for relief based on his right of access to the courts.
Second, Robles asserts that the defendants violated his First Amendment
right to petition the government for redress of grievances. To state a claim for
relief, Robles had to allege that prison officials interfered with his freedom to
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invoke the judicial process.5 The right to petition is a procedural guarantee that a
prisoner will have the opportunity to present his claims in court, not a substantive
guarantee that the prison will take remedial action based on those claims. See
Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (“[T]he prisoner’s right
to petition the government for redress is the right of access to the courts, which is
not compromised by the prison’s refusal to entertain his grievance. . . .”) (quotation
marks omitted). But Robles’ allegation is substantive. He accuses the defendants
of “fail[ing] to address his allegations of legal mail interference and depriv[ing]
him of a remedy.” Furthermore, the fact that Robles’ complaints are now before
this Court is proof that the Facility did not interfere with his freedom to invoke the
judicial process. See Antonelli v. Sheahan,
81 F.3d 1422, 1430–31 (7th Cir. 1996).
Robles has therefore failed to state a claim for relief based on his right to petition
the government for redress of grievances.
Finally, Robles argues that the defendants violated his First Amendment
right to confidential communication with his attorney. Because the Facility is a
privately run prison, Robles cannot have a viable claim for relief unless we
recognize a Bivens cause of action against it. See Corr. Servs. Corp. v. Malesko,
534 U.S. 61, 66–67,
122 S. Ct. 515, 519 (2001); Alba v. Montford,
517 F.3d 1249,
5
We have also held that the right to petition for redress of grievances protects prisoners from
retaliation for filing administrative grievances. See, e.g., Boxer X, 437 F.3d at 1112. That
aspect of the right is not at issue here.
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1252–56 (11th Cir. 2008). We may do so only if: (1) there are no adequate
alternative remedies under state or federal law, and (2) no “special factors” counsel
against implying a cause of action here. See Wilkie v. Robbins, 551 U.S. 537, 550,
127 S. Ct. 2588, 2598 (2007). Robles’ claim flounders on the first criterion. State
law tort actions provide an adequate alternative remedy if they “provide roughly
similar incentives for potential defendants to comply with” the constitutional right
in question “while also providing roughly similar compensation to victims of
violations.” Minneci v. Pollard, — U.S. —,
132 S. Ct. 617, 625 (2012). Georgia
tort law provides both.
We base our conclusion largely on the fact that Robles’ constitutional claim
would, if successful, entitle him only to nominal damages. Prisoners like Robles
— who claim interference with their legal mail but no actual injury — can receive
only nominal damages. See Al-Amin, 511 F.3d at 1334–35; see also Al-Amin v.
Smith,
637 F.3d 1192, 1196–98 (11th Cir. 2011) (explaining that, under the Prison
Litigation Reform Act, prisoners cannot receive compensatory or punitive damages
in the absence of a physical injury. That sets a very low bar for Georgia tort law to
provide “roughly similar incentives” and “roughly similar compensation.”
Minneci, — U.S.
—, 132 S. Ct. at 625.
Georgia law clears that bar by providing several causes of action for
prisoners like Robles. See id. at — U.S.
—, 132 S. Ct. at 624 (explaining that the
8
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adequate alternative remedies criterion asks whether the defendant’s actions are
“the kind of conduct that state tort law typically forbids”). Robles’ complaint
focuses on two actions by the defendants: opening his private legal mail outside
his presence and withholding his legal mail. As for the opening of private mail,
Robles can sue under Georgia common law for intrusion upon seclusion or
solitude. See Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 837 (Ga. 1991)
(“The ‘unreasonable intrusion’ aspect of the invasion of privacy involves a prying
or intrusion, which would be offensive or objectionable to a reasonable person,
into a person’s private concerns.”); cf. Thomas v. Pearl,
998 F.2d 447, 452 (7th
Cir. 1993) (recognizing that opening an individual’s mail would qualify as an
intrusion upon seclusion). As for the withholding of mail, Robles can sue under
Georgia’s statutory tort for deprivation of possession. See Ga. Code Ann. § 51-10-
1 (“The owner of personalty is entitled to its possession. Any deprivation of such
possession is a tort for which an action lies.”); see also Byrd v. Stewart,
811 F.2d
554, 555 n.1 (11th Cir. 1987) (recognizing § 51-10-1 as an adequate remedy where
state police officers have seized a defendant’s personal property).
Both Georgia law torts are arguably better remedies than a Bivens claim
would be because they would allow Robles to seek compensatory and punitive
damages, as well as “apply principles of respondeat superior and thereby obtain
recovery from a defendant’s potentially deep-pocketed employer.” Minneci, —
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U.S. —, 132 S. Ct. at 625. At the least, the two Georgia law torts provide roughly
similar incentives and compensation to a Bivens claim. For that reason, we decline
to recognize a Bivens cause of action under these circumstances. Robles has
therefore failed to state a claim for relief.
AFFIRMED.
10
