United States District Court, M.D. Florida, Jacksonville Division
WILLIAM T. MORRISON, JR., Plaintiff,
JULIE JONES, SECRETARY, ET AL., Defendants.
J. DAVIS UNITED STATES DISTRICT JUDGE.
initiated this case by filing a Civil Rights Complaint Form
(Complaint) (Doc. 1), dated April 29, 2015, and filed
with the Clerk on May 11, 2015. He filed a typewritten Amended
Complaint (Amended Complaint) (Doc. 37) on July 20, 2016,
pursuant to the mailbox rule. Defendants' Motion to Dismiss
(Motion) (Doc. 50) is before the Court. Plaintiff filed a
Reply to the Defendants' Motion to Dismiss (Response)
Standard of Review
ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
addition, all reasonable inferences should be drawn in favor
of the plaintiff. See Omar ex. rel. Cannon v.
Lindsey, 334 F.3d 1246, 1247 (11th Cir. 2003) (per
curiam). Nonetheless, the plaintiff must still meet some
minimal pleading requirements. Jackson v. BellSouth
Telecomm., 372 F.3d 1250, 1262-63 (11th Cir. 2004)
(citations omitted). While "[s]pecific facts are not
necessary[, ]" the complaint should "'give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face."
Twombly, 550 U.S. at 570. "A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556);
see Miljkovic v. Shafritz & Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citation and
"plaintiff's obligation to provide the grounds of
his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do[.]" Twombly, 550
U.S. at 555 (internal quotations omitted); see also
Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts
or legal conclusions masquerading as facts will not prevent
dismissal") (internal citation and quotations omitted).
Indeed, "the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable
to legal conclusions[, ]" which simply "are not
entitled to [an] assumption of truth." See
Iqbal, 556 U.S. at 678, 680. Thus, in ruling on a motion
to dismiss, the Court must determine whether the complaint
contains "sufficient factual matter, accepted as true,
to 'state a claim to relief that is plausible on its
face[.]'" Id. at 678 (quoting
Twombly, 550 U.S. at 570).
brings this civil rights action pursuant to 42 U.S.C. §
1983 against the Defendants in their individual and official
capacities, and he brings state tort claims against the
Defendants for their negligent actions in their individual
and official capacities. Amended Complaint at 2. The
Defendants are Julie Jones, the Secretary of the Florida
Department of Corrections; Monroe Barns, Warden of Columbia
Correctional Institution (CCI); Randy L. Polk, Assistant
Warden of CCI, Keita Peterson, Lieutenant at CCI; Tavia Fyre,
Mail Room Supervisor at CCI; Brenda Anderson, Mail Room
employee at CCI; and J. J. Fields, Sergeant at CCI.
Id. at 2-3. Although not a model of clarity,
Plaintiff asserts that the Defendants are liable because of
"actions of neglect to prevent the conspiracy to
interfere with Plaintiff's rights to access the courts,
due process, and equal protection of law in preforming [sic]
their duties under the color of state law; retaliation;
impeding Plaintiff's rights to access the courts; equal
protection of law, and due process." Id. at 3.
statement of Facts, Plaintiff alleges that in August 2012, he
was an inmate in the care and custody of the Florida
Department of Corrections (FDOC), imprisoned at CCI.
Id. at 4. He prepared a Missouri post conviction
motion (Form 40), and it was due to be filed in Case No.
12-LF-CV-00885 by August 14, 2012. Id. The Missouri
rules require that the Form 40 be notarized before
mailing/filing. Id. Plaintiff completed and copied
the Form 40 "on or before" Friday, August 3, 2012,
and deemed it ready for mailing. Id.
policy and procedure of the institution, inmates had access
to a notary for preparing legal documents for mailing on
Wednesdays. I d . Plaintiff, on Friday,
August 3, 2012, approached the center gate area at CCI, and
requested permission to obtain notary and legal mail
services, but he was informed by Defendant Fields that notary
services were only provided on Wednesdays. Id.
Defendant Fields advised Plaintiff that if he heard about or
caught Plaintiff requesting notary services again before
Wednesday, he would have Plaintiff locked in confinement for
disobeying a verbal order. Id. Plaintiff told
Defendant Fields that he had a pending legal deadline of
August 14, 2012 in the Missouri courts. Id. at 4-5.
Defendant Fields ordered Plaintiff to depart the center gate
area, and threatened to have Plaintiff placed in confinement
if he continued to seek notary services prior to Wednesday.
Id. at 5. Defendant Fields told Plaintiff that he
had discussed Plaintiff's "grievance writing
ass" with Defendant Polk, and if they (Fields and Polk)
had their way, they would see to it that Plaintiff's
petition would never get notarized and mailed. Id.
Wednesday, August 8, 2012, Plaintiff handed his Form 40 over
to Defendant Peterson for notary and legal mail services.
Id. Plaintiff told her about Defendants Fields'
actions and the August 14, 2012 deadline. Id.
Pursuant to the Florida Administrative Code, Chapter
33-210.102(8)(h), the required time frame for the mail to be
turned over to the United States Postal Service for mailing
was twenty-four hours from receipt of the mail. Id.
alleges that Defendants Polk, Peterson, Frye, Anderson, and
Fields, through a conspiracy and/or with deliberate
indifference, failed to turn over the Form 40 to the Postal
Service in a timely fashion. Id. at 5-6. The mail was
turned over five days after receipt, on Monday, August 13,
2012. Id. at 6. The Form 40 did not reach the
Missouri Clerk's Office until Wednesday, August 15, 2012,
a day past the filing deadline. Id. The Missouri
court does not recognize the mailbox rule, and the Rule 40
was dismissed as untimely. Id. In the motion,
Plaintiff attacked a Missouri criminal judgment and sentence.
Polk denied Plaintiff's grievance, although he admitted
that the required mailing time frames were not met.
Id. Plaintiff appealed this decision, and his appeal
was approved. Id.
completed his Florida prison sentence on November 30, 2015.
Id. at 7. He notified the Florida Department of
Financial Services, General Counsel's Office of his
intent to litigate against the Defendants. Id. He
did not receive a response. Id.
Counts are presented in the Amended Complaint:
Count I: Defendants Jones, Barns and Polk for the
Institutional Notary Rule (Plaintiff seeks compensatory,
punitive and nominal damages);
Count II: Defendant Fields Deliberate Indifference and
Retaliatory Actions (Plaintiff seeks compensatory and
Count III: Defendant's [sic] Polk, Peterson, Frye,
Anderson, and Fields Collectively and Individually Conspired
to Retaliate Against Plaintiff (Plaintiff seeks compensatory,
punitive, and nominal damages);
Count IV: Defendant Polk's Deliberate Indifferencee [sic]
in Denying FDOC Formal Grievance # 1209-251-096 (Plaintiff
seeks compensatory, punitive, and nominal damages); and Count
V: Defendants Jones and Barns Neglect to Prevent Conspiracy
(Plaintiff seeks compensatory, punitive, and nominal
Complaint at 7-13.
Summary of the Arguments
seek dismissal of the Complaint pursuant to Fed.R.Civ.P.
12(b)(6). Motion at 4-5. In doing so, they contend Plaintiff:
(1) failed to disclose his prior litigation and the action
should be dismissed for abuse of the judicial process; (2)
failed to exhaust his administrative remedies with regard to
retaliation and conspiracy; (3) failed to state a claim of
retaliation that is plausible on its face; (4) failed to
state a claim of denial of access to the courts that is
plausible on its face with regard to (A) deliberate
indifference on the part of Defendant Fields, (B)
Defendants' notary policy, and (C) the isolated, untimely
mailing incident; (5) failed to state a claim as there is no
constitutional right in the grievance procedure; (6) failed
to state a claim of conspiracy to violate civil rights; (7)
failed to state a viable claim of supervisory liability; and
(8) is not entitled to compensatory or punitive damages
against the Defendants in the absence of a physical injury.
Defendants also contend they are entitled to Eleventh
Amendment immunity to the extent they are sued in their
official capacities for monetary damages.
response to Defendant's Motion, Plaintiff asserts that
the Prison Litigation Reform Act (Act or PLRA) is
inapplicable to his case because, prior to the filing of the
Amended Complaint, he discharged his Florida prison sentence,
and he is no longer a prisoner for purposes of the Act.
Response at 2. Thus, Plaintiff reasons that he was not
required to comply with the requirements of the Act as he was
no longer a prisoner for purposes of the Act, and he was not
prompted to address his previous filings because he filed a
typewritten Amended Complaint rather than an amended civil
rights complaint form. Id. at 2-3. He claims he
exhausted his administrative remedies prior to the filing of
his Complaint. Id. at 4-6. He opines that he has
sufficiently alleged a retaliation claim. Id. at
6-10. He asserts that he has adequately alleged a claim of
denial of access to the courts. Id. at 11-16. He
concedes that he has no right to a grievance procedure.
Id. at 16. He submits that he has adequately alleged
a conspiracy claim that is plausible on its face.
Id. at 17-19. Plaintiff contends that he has
adequately raised a supervisory liability claim that is
plausible on its face. Id. at 19-20. Finally, he
asserts that he complied with pre-suit notification
requirements, and that Defendants are not entitled to
sovereign immunity with respect to Plaintiff's state tort
claims. Id. at 20.
Law and Conclusions
Eleventh Amendment Immunity
raise the defense of sovereign immunity to the extent
Plaintiff is seeking monetary damages against them in their
official capacities. Motion at 23. In this regard, the Motion
is due to be granted. An official capacity claim for monetary
damages is barred by sovereign immunity. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 97-102
(1984). Thus, insofar as Plaintiff seeks monetary damages for
the violation of his constitutional rights from the
Defendants in their official capacities, the Eleventh
Amendment bars suit. Zatler v. Wainwright, 802 F.2d
397, 401 (11th Cir. 1986) (per curiam). Of note,
"neither pendent jurisdiction nor any other basis of
jurisdiction may override the Eleventh Amendment."
Pennhurst State Sch. & Hosp., 465 U.S. at 121
(finding the principle also applies to state-law claims
brought into federal court under pendent jurisdiction).