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Netting v. Secretary Dept. of Corrections

United States District Court, N.D. Florida, Panama City Division

September 30, 2019

WILLIAM L. NETTING, JR., Plaintiff,
v.
SECRETARY DEPT. OF CORRECTIONS, et al., Defendants.

          REPORT AND RECOMMENDATION

          Michael J. Frank United States Magistrate Judge

         The 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.[1]

         I. Background

         Plaintiff-while 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.

         On 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).

         On 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 impounded.

         On 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 $105.00.

         II. Standard

         Although 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)).

         “A 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 principle).

         III. Discussion

         Plaintiff 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 be dismissed.

         A. Deprivation of Personal Property

         To 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 ...


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