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George Lyons v. Shelina Peterson

November 23, 2011

GEORGE LYONS, PLAINTIFF,
v.
SHELINA PETERSON, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary R. Jones United States Magistrate Judge

ORDER

This matter is before the Court on Plaintiff's pro se Complaint. (Doc. 1.) Plaintiff, a prisoner in the custody of the Florida Department of Corrections ("FDOC"), filed his Complaint on the Court's civil rights complaint form for prisoner litigants for actions arising under 42 U.S.C. § 1983. From a review of the Complaint, it is evident the facts as presented fail to state a claim upon which relief can be granted with respect to certain of the claims Plaintiff wishes to bring. Plaintiff will therefore be given an opportunity to amend his Complaint.

I. BACKGROUND AND FACTS

Plaintiff attempts to bring claims under 42 U.S.C. § 1983 against Defendants Walter McNeil, former Secretary of the FDOC, and correctional officers Shelina Peterson, Jessica Valverde and other unnamed officials at Jackson Correctional Institution ("Jackson CI") in Malone, Florida.

According to the factual allegations in the Complaint, Officer Jessica Valverde wrote a disciplinary report against Plaintiff in May 2007. Plaintiff apparently directed some derogatory language at Valverde in response to the disciplinary report.

Disciplinary charges were filed against Plaintiff as a result of the disciplinary report and he was placed in administrative confinement. Plaintiff alleges Valverde then decided to inventory Plaintiff's personal property and confiscate some of his property in retaliation for the derogatory language Plaintiff used against her. The items taken from Plaintiff included two rubber handballs, gym shorts, a sweatshirt, a watch and a dictionary.

While in administrative confinement for the charges brought against him as a result of the disciplinary report written by Officer Valverde, Plaintiff wrote letters to both the Warden of Jackson CI and Defendant Shelina Peterson, the property sergeant at Jackson CI, in which he complained about the confiscation of his property by Valverde. Plaintiff received no response to either of these inquiries.

After being released from administrative confinement Plaintiff visited the property room and inquired about the property that had been confiscated. Defendant Peterson instructed Plaintiff never to ask her about this matter again and then purportedly altered property room records to make it appear as if the property was rightfully confiscated from Plaintiff and then destroyed. Plaintiff then filed a series of unsuccessful grievances in response to the confiscation of his property, which were all denied.

On November 1, 2007, Plaintiff filed a tort claim in Florida state court in connection with the confiscated property. Plaintiff claims the Clerk of Court of the Circuit Court in and for the Fourteenth Judicial Circuit in Jackson County would not process his complaint despite Plaintiff qualifying for indigent status under that court's indigency requirements. Plaintiff then filed a mandamus action in the First District Court of Appeal, which allegedly sent him an order instructing him to serve the Defendants. Plaintiff was under the impression he was required to serve each Defendant personally.

Consequently, Plaintiff took copies of his tort claim to the mailroom at Jackson CI on March 19, 2008 for delivery to each Defendant. The next day, March 20, 2008, Plaintiff was called to the Central Gate at Jackson CI, where he was handcuffed and then placed in disciplinary confinement. After Plaintiff was placed in disciplinary confinement, Plaintiff alleges he was assaulted by correctional officers and then a false disciplinary report was written against him alleging that he had verbally threatened a correctional officer. Plaintiff claims these actions were in retaliation for the tort claim action he filed in state court. His state court tort claim action was dismissed with prejudice when the Circuit Court for the Fourteenth Judicial Court granted summary judgment to the Defendants. Plaintiff then appealed this ruling, which was upheld on appeal by the First District Court of Appeal.

In his Complaint, Plaintiff states that his claims in this case are for deprivation of his personal property without due process, retaliation for pursuing his First Amendment right to file lawsuits, and for deprivation of his right to petition the government for redress of his grievances. Plaintiff seeks monetary damages and restoration of 130 days of gain time.

II. STANDARD OF REVIEW

The Court must screen Plaintiff's Complaint pursuant to 28 U.S.C. § 1915A. Section 1915A mandates the Court must independently review all cases brought by prisoners against government entities or employees. The Court is further directed by section 1915A to "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint ... is frivolous, malicious, or fails to state a claim upon which relief may be granted; or ... seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A.

Plaintiff filed his Complaint on the civil rights complaint form to be used by prisoners in actions under 42 U.S.C. § 1983. A successful section 1983 action requires a plaintiff to show he was deprived of a federal right by a person acting "under color of state law." Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992)(citing Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 155-56 (1978)). A person acts under color of state law when he acts with authority possessed by virtue of his employment with the state. Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995)(citing West v. Atkins, 487 U.S. 42, 48-50 (1988)). "The dispositive issue is whether the official was acting pursuant to the power he/she possessed by state authority or ...


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