United States District Court, M.D. Florida, Jacksonville Division
ORDER OF DISMISSAL WITHOUT PREJUDICE
J. DAVIS, UNITED STATES DISTRICT JUDGE
Thomas Robinson, an inmate of the Florida penal system,
initiated this action by filing a pro se Civil Rights
Complaint (Doc. 1; Complaint) and a motion to proceed in
forma pauperis (Doc. 3). Plaintiff names as Defendants three
corrections officers at Columbia Correctional Institution,
one of whom Plaintiff identifies as “John Doe.”
In his Complaint, Plaintiff asserts due process violations
under the Fifth and Fourteenth Amendments for loss or
destruction of his personal property and forging his
signature on a property receipt. He alleges no injuries. As
relief, he seeks the return of his personal property,
punitive damages, litigation costs, and attorney's fees.
Prison Litigation Reform Act (PLRA) requires a district court
to dismiss a complaint if the court determines the action is
frivolous, malicious, or fails to state a claim on which
relief can be granted. See 28 U.S.C. §
1915(e)(2)(B). With respect to whether a complaint
“fails to state a claim on which relief may be granted,
” the language of the PLRA mirrors the language of Rule
12(b)(6), Federal Rules of Civil Procedure, so courts apply
the same standard in both contexts. Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see
also Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.
2008). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Labels and conclusions”
or “a formulaic recitation of the elements of a cause
of action” that amount to “naked
assertions” will not suffice. Id. (quotations,
alteration, and citation omitted). Moreover, a complaint must
“contain either direct or inferential allegations
respecting all the material elements necessary to sustain a
recovery under some viable legal theory.” Roe v.
Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 683
(11th Cir. 2001) (quotations and citations omitted). In
reviewing a pro se plaintiff's pleadings, a court must
liberally construe the plaintiff's allegations. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011). However, the duty of a court to construe pro se
pleadings liberally does not require the court to serve as an
attorney for the plaintiff. Freeman v. Sec'y, Dept.
of Corr., 679 Fed.Appx. 982, 982 (11th Cir. 2017)
(citing GJR Invs., Inc. v. Cty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998)).
Complaint is subject to dismissal under this Court's
screening obligation because he fails to “state a claim
to relief that is plausible on its face.” See
Ashcroft, 556 U.S. at 678. To state a claim under 42
U.S.C. § 1983, a plaintiff must allege “(1) both
that the defendant deprived [him] of a right secured under
the Constitution or federal law and (2) that such a
deprivation occurred under color of state law.” See
Bingham, 654 F.3d at 1175 (alteration in original). A
negligent or intentional deprivation of personal property
does not constitute a Fourteenth Amendment due process
violation “if a meaningful postdeprivation remedy for
the loss is available.” Hudson v. Palmer, 468
U.S. 517, 533 (1984). Plaintiff has an adequate post
deprivation remedy available to him under state law; he can
sue the officers for theft or conversion. See Fla.
Stat. § 772.11(1). See also Case v. Eslinger,
555 F.3d 1317, 1331 (11th Cir. 2009) (recognizing
Florida's civil cause of action for conversion provides
an adequate post deprivation remedy when law enforcement
officers seize or retain personal property). As such,
Plaintiff's Fourteenth Amendment due process claim is
subject to dismissal.
Fifth Amendment claim is also subject to dismissal. The Fifth
Amendment governs the conduct of federal actors, not state
actors. See Buxton v. City of Plant City, Fla., 871
F.2d 1037, 1041 (11th Cir. 1989) (“The fifth amendment
to the United States Constitution restrains the federal
government, and the fourteenth amendment, section 1,
restrains the states, from depriving any person of life,
liberty, or property without due process of law.”).
Plaintiff sues state actors, not federal actors.
case is DISMISSED without prejudice.
Clerk shall enter judgment dismissing this
case without prejudice, terminate any pending motions, and
close the file.
 In grievances Plaintiff provides with
his Complaint (Doc. 1-1), he states Defendants stole or
destroyed religious items, speculating they did so because
they do not agree with his religious views. In his Complaint,
Plaintiff does not assert a ...