United States District Court, N.D. Florida, Panama City Division
WILLIAM L. NETTING, JR., Plaintiff,
SECRETARY DEPT. OF CORRECTIONS, et al., Defendants.
REPORT AND RECOMMENDATION
Michael J. Frank United States Magistrate Judge
clerk of the court referred this case to the undersigned upon
Plaintiff's response to the undersigned's order to
show cause and motion for leave to proceed in forma
pauperis. (Docs. 8, 9). Good cause having been shown,
leave to proceed in forma pauperis will be granted.
For the reasons set forth below, the undersigned recommends
that this action be dismissed for failure to state a claim
upon which relief can be granted.
an inmate at the Holmes Correctional Institution- commenced
this action pursuant to 42 U.S.C. § 1983 against three
Defendants: (1) the Secretary of the Florida Department of
Corrections; (2) Warden Summers; and (3) Officer John White.
(Doc. 1 at 2-3). Plaintiff alleges that the Defendants
violated his due process rights.
August 24, 2018, Plaintiff was transferred from the Holmes
Correctional Institution Main Unit to the Holmes Correctional
Institution workcamp. Plaintiff alleges that Officer White
inventoried and impounded Plaintiff's colored pencils.
Plaintiff informed Officer White that he wished to send the
pencils home, but Officer White purportedly failed to issue
an impounded personal property list. (Doc. 1 at 13).
September 15, 2018, Plaintiff filed a grievance asking that
his colored pencils be sent home. This grievance allegedly
was not answered. On September 16, 2018, Plaintiff filed a
grievance and requested an impounded personal property list
showing that his colored pencils had been impounded by
Officer White. This grievance was returned with a copy of an
impounded personal property list. Plaintiff sent an
additional grievance requesting that the colored pencils be
sent home, which was unanswered. Plaintiff alleges that his
digital radio and a bowl with a lid also were subsequently
October 3, 2018, Plaintiff was transferred back to the Holmes
Correctional Institution Main Unit. Plaintiff alleges that
his impounded property was not transferred to Holmes
Correctional Institution in accordance with the FDOC's
policy. On October 19, 2018, Plaintiff filed a formal
grievance that purportedly was not answered. Plaintiff filed
several additional grievances regarding his property.
Plaintiff seeks injunctive relief against the Defendants and
Plaintiff apparently was released from custody, this court
still must conduct a 28 U.S.C. § 1915(e)(2)(B)(ii)
review, which allows a district court sua sponte to
dismiss a complaint that fails to state a claim for relief.
See 28 U.S.C. § 1915A(a)-(b); see also
28 U.S.C. § 1915(e)(2)(B) (applying the same standard to
in forma pauperis proceedings). Dismissals for
failure to state a claim are governed by the Rule 12(b)(6)
standard. See Fed. R. Civ. P. 12(b)(6); Mitchell
v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The
court must accept all well-pleaded factual allegations of the
complaint as true and evaluate all reasonable inferences
derived from those facts in the light most favorable to the
plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480,
1483 (11th Cir. 1994). To survive dismissal, “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, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955, 1974 (2007)).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949. The mere possibility that the defendant acted
unlawfully is insufficient. Id.; see also 5
C. Wright & A. Miller, Federal Practice and Procedure
§ 1216, pp. 235-36 (3d ed. 2004) (“[T]he pleading
must contain something more . . . than . . . a statement of
facts that merely creates a suspicion [of] a legally
cognizable right of action.”). The complaint's
factual allegations “must be enough to raise a right to
relief above the speculative level . . . .”
Twombly, 550 U.S. at 555, 127 S.Ct. at 1965; see
also Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(reiterating that although Rule 8 of the Federal Rules of
Civil Procedure does not require detailed factual
allegations, it demands “more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”). A
complaint may also be dismissed for failure to state a claim
“when its allegations, on their face, show that an
affirmative defense bars recovery on the claim.”
Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir.
2003); see also Marsh v. Butler Cty., Ala., 268 F.3d
1014, 1022 (11th Cir. 2001); Jones v. Bock, 549 U.S.
199, 215, 127 S.Ct. 910, 920-21 (2007) (reiterating that
alleges that his due process rights were violated because the
Defendants deprived him of personal property and failed to
follow the FDOC's grievance procedure. Both claims should
Deprivation of Personal Property
succeed on a § 1983 claim, a plaintiff must establish
“(1) a violation of a constitutional right, and (2)
that the alleged violation was committed by a person acting
under the color of state law . . . .” Melton v.
Abston, 841 F.3d 1207, 1220 (11th ...