Opinion
CASE NO. 03-22823-Civ-UNGARO-BENAGES.
July 5, 2006
I. Introduction
Floyd T. Robertson, the plaintiff in this pro se civil rights action, is now a Florida prisoner. The suit, however, concerns matters that occurred while he was previously detained in the Miami-Dade County Department of Corrections and Rehabilitation ("MDC-DCR"). In an initial complaint filed in this case pursuant to 42 U.S.C. § 1983, Robertson designated two defendants: the MDC-DCR Director, Charles McRay [sic] ("McCray"), and Margaret Blake ("Blake"), a Correctional Counselor at an MDC-DCR facility called the "Stockade." Then, while he was still at the Stockade, Robertson submitted a Court-ordered Superseding amended complaint (DE# 52), in which he again named McCray and Blake, and added a defendant described as "Keffe Commissary Network — THROUGH Lamar Jackson — As: Agent for Charles McCray, and Miami-Dade Dept. of Corrections." (DE# 52, pp. 3-4; "Parties" at §§ III A-D).
The essence of Robertson's amended complaint is that, as an indigent MDC-DCR detainee, he was given insufficient free stamps and envelopes. This allegedly denied him access to the Courts, and affected his ability to send non-legal mail. Robertson also complains about other matters (e.g., photocopying and hygiene items). The parties' filings show that various things (envelopes, stamps, paper, hygiene items, etc.) were contained in "indigent kits" provided by a contractor, Keefe Commissary Network, Inc. ("Keefe").
Plaintiff Robertson earlier filed a motion for summary judgment (DE# 61), in opposition to which defendants McCray and Blake filed a cross motion for summary judgment (DE# 84) with multiple exhibits. A prior Report (DE# 108) was entered which recommended, for reasons discussed therein, that the plaintiff's motion for summary judgment should be denied because it was apparent, upon review of defendants' cross-motion, that McCray's and Blakes' affidavits and exhibits created issues of material fact. The Report was adopted (Order, DE# 109). The cross-motion (DE# 84) was not yet ripe for review because an Order of Instructions (DE# 87) had been entered informing the pro se plaintiff of his right to respond and instructing him regarding the requirements underFed.R.Civ.P. 56 for a proper response to such a motion, and for reasons explained in footnotes 1 and 2 of the Report (DE# 108) plaintiff's Response to the cross-motion was not due until March 17, 2006. Thereafter, Robertson moved for an additional extension of time, and an Order was entered on April 20 (DE# 112) denying Robertson's request, and informing him that after May 1, 2006, a Report on the defendants' pending cross-motion would be entered even in the absence of an opposing response by the plaintiff.
A prior Report (DE# 108, at pp. 3-4), described the defendants' exhibits, as follows:
The defendants' exhibits include, but are not limited to: 1) documentation of the MDC-DCR mail policy, and the contract between the County and Keefe; 2) McCray's Affidavit stating that Lt. Brannock is in charge of the Commissary; the Commissary provides indigent kits; and McCray is unaware that Robertson was not provided weekly indigent kits, and that Brannock and departmental records indicate that Robertson was provided with an indigent kit; 3) Brannock's Affidavit stating, inter alia, that he is a MDC-DCR employee, responsible for the day to day operations of the Commissary; stating that inmates with less than $2.00, are eligible for Indigent Kits (which Keefe provides at a cost of $1.58 each); and further stating that records show that Robertson "regularly received indigent Commissary" between July 21, 2003 and July 21, 2005; and 4) Blake's Affidavit, stating that, as a Counselor, she is responsible for requests for assistance, including visits, law library access and contacts with outside entities; that she never refused to provide inmate Robertson with his allotted use of legal materials, postage and envelopes; that she complied with Departmental rules covering stamps and envelopes; and that as a Counselor she had no authority over stamps and envelopes received by indigent inmates, which the Commissary is responsible for providing.
The Report (DE# 108) noted that the fact issues included whether responsibility for provision/distribution of indigent kits lay with the MDC-DCR or Keefe, or was shared; whether defendant Blake, as an MDC-DCR Corrections Counselor, had any duty to facilitate orders by Robertson for indigent kits, or duty to provide Robertson with access to photocopies, legal matori als, etc., and if so, whether she refused to do so; whether limiting indigent inmates to one 37¢ stamp per week was County policy, or Keefe policy; whether limited numbers of indigent kits were available for distribution each week in the institution where Robertson was confined, and if so, whether insufficient quantities resulted in Robertson not being provided kits he had requested; and whether, on occasions that Robertson may not have received an indigent kit, unavailability resulted in denial of access to the Courts, or some other denial of Robertson's rights under the Constitution or laws of the United States.
Despite ample opportunity to do so, Robertson has not filed a response opposing defendants' cross motion for summary judgment, which suggests that he might have abandoned the lawsuit. Robertson's failure to file notices of change of address since May 16, 2006, despite three transfers commencing on that date, further suggests that he may have abandoned the case.
Records in this case reveal that between August of 2005 and May of 2006 Robertson was confined at Okeechobee C.I. ("OCI"). As of this date, the last address provided by Robertson is OCI.
Records maintained by the Florida Department of Corrections reveal that on May 16, 2006 Robertson was transferred from OCI to Hendry C.I.; that on May 31, 2006 he was transferred to Charlotte C.I.; and that on June 21, 2006 he was transferred from Charlotte C.I. and was in transit until June 23, 2006, on which date he arrived at Dade C.I., where he is currently confined.
This Cause is before the Court upon three motions:
(1) McCray's and Blake's joint motion for summary judgment (DE# 84);
(2) a motion to dismiss by defendant Keefe (DE# 103); and
(3) a motion by defendants McCray and Blake for Default (DE# 114), based on plaintiff Robertson's failure to respond to their cross-motion for summary judgment.
II. McCray's and Blake's Motion for Default (DE# 114)
McCray's and Blake's motion for judgment by default (DE# 114) should be denied for two reasons. First, although deadlines were established for the filing of a Response in opposition to McCray's and Blake's pending cross-motion for summary judgment [DE# 84], and plaintiff Robertson was informed of his right to file such a response, and of possible consequences of failing to so (see Orders of Instruction, DE#s 87 and 97), he was notrequired to file a Response. Second, it is apparent, for reasons explained in Section "III" of this Report, below, that McCray and Blake are entitled to summary disposition in their favor, of the claims against them.III. McCray's and Blake's Motion for Summary Judgment (DE# 84)
Careful review of the record (including plaintiff Robertson's pleadings and exhibits, and the defendants' motion for summary judgment with exhibits — which Robertson has not opposed despite the Court's instructions at DE#s 87 and 97) reveals that Robertson's allegations and evidence in the case do not indicate a deprivation of his right of access to the Courts, even if free photocopying was limited and indigent MDC-DCR inmates were to be provided only one free "indigent kit" per week, and even if there was irregular distribution of "indigent kits" (each with paper and only one 37¢ stamp) as plaintiff Robertson has stated.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper
[i]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c).
In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Court held that summary judgment should be entered only against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the non-moving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. (citations omitted). Thus, pursuant to Celotex and its progeny, a movant for summary judgment bears the initial responsibility of informing the court of the basis for his motion by identifying those parts of the record that demonstrate the nonexistence of a genuine issue of material fact. This demonstration need not be accompanied by affidavits. Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11 Cir. 1990). If the party seeking summary judgment meets the initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the nonmoving party, to come forward with sufficient evidence to rebut this showing with affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572, 1577 (11 Cir.), cert. denied, 112 S.Ct. 913 (1992). It is the nonmoving party's burden to come forward with evidence on each essential element of his claim sufficient to sustain a jury verdict. Earley v. Champion International Corp., 907 F.2d 1077, 1080 (11 Cir. 1990). The non-moving party cannot rely solely on his complaint and other initial pleadings to contest a motion for summary judgment supported by evidentiary material, but must respond with affidavits, depositions, or otherwise to show that there are material issues of fact which require a trial Fed.R.Civ.P. 56(e);Coleman v. Smith, 828 F.2d 714, 717 (11 Cir. 1987). If the evidence presented by the nonmoving party is merely colorable, or is not significantly probative, summary judgment may be granted.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986);Baldwin County, Alabama v. Purcell Corp., 971 F.2d 1558 (11 Cir. 1992). "A mere `scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party."Walker v. Darby, 911 F.2d 1573, 1577 (11 Cir. 1990) (citingAnderson v. Liberty Lobby, Inc., supra).
Pursuant to Brown v. Shinbaum, 828 F.2d 707 (11 Cir. 1987), Orders of Instruction to the pro se plaintiff Robertson were entered (DE#s 87, 97) concerning his right to respond to the defendants' summary judgment motion, and instructing him of requirements under Fed.R.Civ.P. 56 for a proper response to such a motion.
For purposes of legal mail, plaintiff Robertson was not entitled to unlimited stamps and photocopies. See Marsh v. Reiger, No. 2:02CV599FTM-29SPC, 2006 WL 822405, at *6 (M.D.Fla. March 27, 2006) (granting summary judgment for defendants, where a civilly committed plaintiff perceived that he was entitled to unlimited stamps and copying, but the institution's Resident Handbook allowed for 2 stamps per week, and the plaintiff had not demonstrated that he failed to receive the limited postage, and the record showed that the plaintiff has been able to file multiple pleadings, and copy voluminous documents) (citingHoppins v. Wallace, 751 F.2d 1161, 1161-62 (11 Cir. 1985) for its holding that 2 stamps were enough to provide adequate access to the courts). The Supreme Court in Bounds v. Smith, 430 U.S. 817, 824-25 (1977) held that "it is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents, with notorial services to authenticate them, and stamps to mail them." This, however, does not entitle inmates to unlimited free postage. The Eleventh Circuit in Hoppins v. Wallace, 751 F.2d 1161 (11 Cir. 1985) affirmed a district Court's judgment for defendants in an action by state prisoners challenging as inadequate a prison policy of providing 2 free stamps per week for use to access the courts. Hoppins, supra, 751 F.2d at 1161-62. In doing so, the Eleventh Circuit acknowledged the Supreme Court's holding regarding indigents, postage and access to the Courts, Hoppins, supra, at 1162 (citing Bounds,supra, 430 U.S. at 824-25), while citing with approval Twyman v. Crisp, 584 F.2d 352, 359 (10 Cir. 1978) in which the Tenth Circuit had determined that the rights of prisoners must be balanced with budgetary constraints, and "interpreted Bounds not to require states `to pay the postage on every item of legal mail each and every prisoner wishes to send.'" Hoppins, supra, 751 F.2d at 1161 (quoting Twyman, supra, 584 F.2d at 359.
In reaching its conclusion that the institution's stamp policy was adequate to allow access to the Courts, the Eleventh Circuit in Hoppins noted a showing on the record that "plaintiff Hoppins has an inclination to be very litigious and might well use more stamps if they were made available to him," and that despite Hoppins' filing of at least five § 1983 lawsuits, there was "no evidence" presented by him that "any case was dismissed or than any sanction was imposed by the courts due to the impact of the stamp policy." Hoppins, supra, 751 F.2d at 1161.
In this case, a Contract between Keefe Commissary Network, Inc., and "Metropolitan Dade County" for Commissary Services for the Metro-Dade Department of Corrections, dated September 25, 1998 (see DE# 86, at p. 24) provided for processing of orders for indigent items, including "a minimum cost package of necessity items, to include three (3) stamped envelopes and a small tube of toothpaste, at no cost to the inmate" [see DE# 86 at p. 68; "Appendix A," "Scope of Services," Section B "Scope of Work (Operational) at ¶ 20]. Evidence indicates, however, that commencing in 2003, pursuant to a 5-year Contract Extension, indigent commissary kits contained only one (1) 37¢ stamped envelope, and also included 4 sheets of paper, 1 pencil, plus hygiene items [deodorant, razor, shampoo, toothpaste, and soap], and inmates were allowed only 1 Kit per week/4 Kits per month. (See DE# 86, Brannock Affidavit at ¶¶ 2-4; see Robertson Declaration at ¶ 5, as scanned at DE# 61 at p. 4; see also, 7/6/04Response to 6/18/04 Grievance, as scanned at DE# 61 at p. 40; and 6/22/04 Response to 6/18/04 grievance, as scanned at DE# 61 at p. 39). Evidence also indicates that by 2003 [beginning in October, according to Robertson] indigent detainees' legal mail needs were provided for only through Indigent Kits provided by Keefe (see DE# 61, Robertson Affidavit at 14), and Robertson could no longer get legal mail stamps from Counselor Blake (Id. at ¶ 3); and inmates were not allowed to receive stamps and envelopes from friends or family, and any that were received at the jail from outside sources were considered contraband (see Grievance Responses, scanned at DE# 61 at pp. 42 and 45). Finally, despite Brannock's Affidavit stating that between July 21, 2003 and July 21, 2005, Robertson "regularly received indigent Commissary," the record shows that less than half of his requests for Indigent Kits were honored. Based on eighty-six (86) Commissary Order Forms pertaining to Robertson, which were submitted in this case by the defendants and are dated between 7/21/03 and 7/21/05, the evidence shows that on 35 dates Robertson was sent an Indigent Kit [Restricted-No Razors], and on 51 dates the Kit requested by Robertson was not sent because the quantity of Kits available was apparently insufficient to satisfy all detainees' requests [those 51 forms instead of indicating that the Kit was "sent," state "Exceeded Max Quantity"]. (See DE# 86 at pp. 87-136, and pp. 150-187).
Notwithstanding Robertson's inability to order more than one free stamp per week when indigent, periodic unavailability of Indigent Kits for his use (apparently more than 50% of the time), and Robertson's contention that on various occasions legal documents he wished to tender to the MDC-DCR for mailing to the Courts exceeded the number of pages that could be sent with one 37¢ stamp, the record nevertheless lacks a showing of evidence by Robertson which is necessary to establish that he was denied access to the Courts.
Prisoners have a constitutional right to effective access to the courts. Lewis v. Casey, 518 U.S. 343 (1996); Bounds, Correction Commissioner v. Smith, 430 U.S. 817 (1977); Wanninger v. Davenport, 697 F.2d 992 (11 Cir. 1983). This right also extends to detainees, including pretrial detainees pending trial,Love v. Summit County, 776 F.2d 908, 912 (10 Cir. 1985) (recognizing pretrial detainees have the same constitutional access rights to vindicate fundamental constitutional rights).
The right to have effective access to the courts includes reasonable access to a law library or adequate assistance from persons trained in the law, Bounds, supra; Straub v. Monge, 815 F.2d 1467 (11 Cir. 1987); Wainwright v. Davenport, 697 F.2d 992 (11 Cir. 1993. Nevertheless, where a prisoner or detainee's claim that he has been denied access to the courts involves an alleged deprivation of access to resources other than Bounds' core concern of actual legal assistance, courts require him to demonstrate that he suffered an actual injury as a result.Chandler v. Baird, 926 F.2d 1057 (11 Cir. 1991), and cases cited at 1062 n. 3; see also, Strickler v. Waters, 989 F.2d 1375 (4 Cir. 1993), and cases cited at 1382 n. 10; Sands v. Lewis, 886 F.2d 1166 (9 Cir. 1989); Hoppins v. Wallace, 751 F.2d 1161 (11 Cir. 1985). In other words, to prove a denial of access to the courts, a plaintiff must show "some quantum of detriment" caused by the challenged conduct of state officials, resulting in the interruption and/or delay of the plaintiff's pending or contemplated litigation. Jenkins v. Lane, 977 F.2d 266, 268 (7 Cir. 1992), quoting Shango v. Jurich, 965 F.2d 289 (7 Cir. 1992). To show "some quantum of detriment," the complaint must allege specific facts such as court dates missed, an inability to make timely filings, or the loss of a case that otherwise could have been won. Martin v. Davies, 917 F.2d 336, 338 (7 Cir. 1990),cert. denied, 501 U.S. 1208 (1991).
In Lewis, however, the Supreme Court made clear that not just any prejudice will suffice. The Court emphasized that it is vital to an inmate's denial of access claim to specifically demonstrate how he was harmed and prejudiced with respect to any litigation in which he was involved, Lewis, supra, 518 U.S., at 348-52. Additionally, the Court stated that "the injury requirement is not satisfied by just any type of frustrated legal claim." Id., 518 U.S., at 354. Rather, the plaintiff must show that he was prejudiced in a criminal appeal, or in a post-conviction proceeding, Id., 518 U.S. at 354, or in a civil rights action in which he sought "to vindicate `basic constitutional rights.'"Id., (quoting Wolff v. McDonnell, 418 U.S. 539, 579 (1974)).
In this case, Robertson has not alleged and demonstrated that he suffered an actual injury. Facts proffered by him, and exhibits submitted fail to show that he suffered any prejudice in any particular proceeding due to the alleged limited access to stamps and envelopes, and photocopies. Although he has complained, in general terms, that those alleged limitations caused denial of his right of access to the courts, Robertson identifies no habeas action, federal criminal case, state criminal case, or other civil rights case in state court which was affected in a manner such as was contemplated by the Court inLewis v. Casey. Nor has Robertson shown that he was prejudiced in § 1983 litigation in his quest to complain in federal court about the alleged inadequacies of the procedures implemented at the MDC-DCR to provide him, as an indigent inmate, with mailing and writing supplies, and hygiene items.
Under Supreme Court and Eleventh Circuit cases, Robertson did not have a right to unlimited free stamps in order to preserve access to the courts. Here, despite the established limit at the MDC-DCR to one stamp per week (half the number allowed under policies faced by courts of this Circuit in Hoppins and Marsh), and failure to provide even that to Robertson every week, did not deny him access to the Courts. Robertson, in his filings in this case, references three federal § 1983 cases: 03-20762-Civ-Graham; 03-22767-Civ-Huck; and this case, 03-22823-Civ-Ungaro-Benages, through which he had access to the courts, as discussed, below.
Case 03-20762-Civ-Graham
Robertson submitted a document dated March 25, 2003, captioned "Request for Assistance," asking for "assistance in filing his Civil Rights Complaint under 42 U.S.C. § 1983." The document was filed by the Clerk on April 3, 2003, and a Section 1983 Civil Rights action [03-20762-Civ-Graham] was opened with the document treated as Robertson's complaint. A standard Order instructed Robertson to pay the Clerk's filing fee or file a motion for leave to proceed in forma pauperis. Robertson then moved to dismiss (DE# 5), stating that he did not intend the document [DE# 1] to be his complaint, as he had not yet exhausted his administrative remedies. A Report (DE# 6) was entered recommending that the motion (DE# 5) be granted. The Report was adopted, and the case was closed, without assessing a filing fee (Order, DE# 7).
Cases 03-22767-Civ-Huck, and 03-22823-Civ-Ungaro-Benages
Robertson next submitted a document captioned "Motion for Order Directing Jail Officials to Facilitate Plaintiff's Access to the Courts," dated October 7, 2003, which was filed by the Clerk on October 15, 2003, and opened as a § 1983 complaint [DE# 1] in Case No. 03-22767-Civ-Huck. Only Charles McCray [also named in this case] and the Miami-Dade County Mayor, Alex Penelas, were designated as defendants. A Report (DE# 10) was entered on January 13, 2004, noting that Robertson had included allegations that Counselor Blake [not named as a defendant] had refused to provide the number of photocopies needed for him to file the required number of copies of his complaint in federal court, and was providing insufficient envelopes and postage for him to file his pleading. The Report in Case 03-22767-Civ-Huck (DE# 10) also noted that Robertson had submitted another complaint, filed as the initial pleading in Case No. 03-22823-Civ-Ungaro-Benages [this case], in which he was proceeding against Blake on the same claims. The Report, which noted that the complaint before the Court [DE# 1, Case No. 03-22767-Civ-Huck] alleged no specific factual allegations to suggest a causal connection between the named defendants McCray and Penelas and deprivations alleged, recommended dismissal for failure to state a claim. Plaintiff Robertson filed objections to the Report (DE# 11) stating that it was his desire to submit a 125-page pleading drafted on October 1, 2003, consisting of a 49 page complaint, and exhibits (DE# 11, Objections, dated January 22, and file stamped January 27, 2003). The Report was adopted (Order DE# 12, entered January 28, 2004), and the case was closed. Robertson filed a "Motion for Relief from Judgment or Order" (DE# 13) arguing that the Court should reopen Case 03-22767-Civ-Huck and allow him to amend, because by submitting his initial filing in the case [DE# 1] he had merely "filed all the paperwork necessary to begin a (the) civil complaint, but did not file his `actual complaint' or demonstrate exhaustion of administrative remedies as an incarcerated litigant, due to the defendants' restrictions on indigent legal services." (DE# 13, p. 2). Robertson stated that it was his intent to sue not only McCray and Penelas, but to raise claims against three other unspecified defendants as well, by filing his "actual complaint" [i.e., the 125 page pleading dated October 1, 2003]. Robertson filed a "Notice of Appeal" from the January 28, 2004 Order of Dismissal (Notice, DE# 14, dated March 15, and filed March 18, 2004). He then filed a second motion, asking the Court to vacate the January 28, 2004 Order of Dismissal. (DE# 15, captioned "Petition for Review"). On March 19, 2004, Robertson's motions [DE# 12 and 15] were denied (DE# 16, "Order Denying Petition for Review). Robertson moved to proceed in forma pauperis on appeal (DE# 17, dated March 29 and filed April 5, 2004); and filed a "Consent" to pay the filing fee for his appeal by installment (DE# 19, dated April 23, and filed May 20, 2004). The Appeals process proceeded, a Certificate of Readiness was transmitted to the Court in Appeal No. 04-11377-HH on June 7, 2004 (DE# 20). The due date for Robertson to file his appellate brief was June 28, 2004 (see DE# 21, p. 1), and on July 9, 2004, the Eleventh Circuit issued an Entry of Dismissal, dismissing the appeal "for want of prosecution because the appellant has failed to file the appellant's brief within the time fixed by the rules . . ." (Id. at p. 2).
If Robertson were denied adequate free postage, which in turn rendered him unable to file an Appellate Brief in his appeal from the dismissal of Case No. 03-22767-Civ-Huck, such an impediment might arguably qualify as the type of injury necessary for a showing of denial of access to the Courts, as contemplated inLewis v. Casey, supra, 518 U.S. at 354, if prejudice were demonstrated. It is clear from the record that in the five months between the 1/28/04 Judgment of Dismissal in Robertson's case, No. 03-22767-Civ-Huck, and the June 28, 2004 deadline for the filing of his Appellate Brief, Robertson was given only 5 "free" stamps, 3 of which were provided after his Notice of Appeal. Although Robertson's access to "free" postage clearly was limited, evidence suggests that after May 10, 2004, he had two stamps available for filing an Appellate brief in Appeal No. 04-11377-HH. It is unexplained in the record how Robertson actually used those two stamps. Upon consideration of the defendants' motion for summary judgment to which Robertson did not respond, it is clear, however, that Robertson was not denied access to the Courts despite the dismissal of his appeal. This is so, for two reasons, even if it is assumed [in a light most favorable to the non-movant pro se plaintiff] that a lack of free postage caused his inability to timely file an appellate brief in Appeal 04-11377-HH.
The record shows that between January 28, 2004 [date of the Order of Dismissal] and March 15, 2004 [date of Robertson's Notice of Appeal] Robertson received two (2) free 37¢ stamps, one each on 2/9/04 and 3/15/04 [see DE# 86, pp. 176 and 177 — Indigent Kits "Sent"]; and that on three dates during that period, 2/2/04, 2/13/04, and 2/23/04, requested Indigent Kits with stamps were not provided [see DE# 86, pp. 175, 177, 178 — indicating "Exceeded Max. Quantity"]. The record shows that between March 18, 2004 [the date of Robertson's Notice of Appeal] and June 28, 2004 [the deadline for filing his appellate brief], plaintiff Robertson received three (3) free 37¢ stamps, one each on 5/10/04, 5/21/04, and 6/9/04 [see DE# 86, pp. 185, 187, and p. 88 — Indigent Kits "Sent"]; and that during that period free stamps were unavailable on seven (7) dates: 3/22/04, 4/5/04, 4/12/04, 4/26/04, 5/4/04, 5/14/04, and 5/28/04 [see DE# 86, at pp. 180, 181, 182, 183, 184, 186, and 87 — indicating "Exceeded Max. Quantity"].
Docket sheets for Case No. 03-22767-Civ-Huck and Case No. 03-22823-Civ-Ungaro-Benages [this case] show that Robertson filed three documents in federal court after the 3/18/04 Notice of Appeal and betore the 6/28/04 Appellate Brief filing deadline. [Those three filings were the 3/29 IFP motion DE# 17, and the Consent dated 4/23, DE# 19, in Case 03-22767-Civ-Huck; and a "Notice of Inquiry" dated 5/10/04, filed at DE# 10 in this case, 03-22823-Civ-Ungaro-Benages]. The last of those three filings, [the 5/10 Notice, DE# 10, in this case] could conceivably have consumed the free stamp provided to Robertson on 5/10/04 [see DE# 86, at p. 185], leaving Robertson with the two (2) 37¢ stamps provided in indigent Kits on 5/21 and 6/9/04 for other use prior to the 6/28/04 deadline for filing his appellate brief in Case 03-22767-Civ-Huck.
First, insofar as the Court dismissed the pro se filing which was treated as a complaint naming McCray and Penelas [DE# 1, Case No. 03-22767-Civ-Huck], that pleading clearly failed to state a claim against McCray and Penelas, where there were no allegations of involvement to establish a causal connection between them and any deprivation of constitutional dimension, and any appeal of that pleading, against those defendants, based on the insufficient allegations would have been without merit. Second, insofar as Robertson had complained in two motions in 03-22767-Civ-Huck that he should be allowed to amend, by filing a 125-page October 1, 2003 complaint that he possessed but could not file for want of adequate stamps, the Report in Case No. 03-22767-Civ-Huck upon which the January 28, 2004 dismissal was based, had specifically noted that Robertson was simultaneously litigating essentially the same claims (lack of access to the Courts due to limited photocopying and stamps, and failure to provide free personal hygiene items) in Case No. 03-22823-Civ-Ungaro-Benages [this case]. Moreover, in this case, the Court, while informing Robertson that it would not allow him to file a 125 page pleading, did allow him to file a superseding amended complaint [limited to 20 pages, plus exhibits] and Robertson ultimately did file that pleading [DE# 52], in opposition to which the defendants McCray, Blake and Keefe now have motions pending.
In this case, after an initial complaint [DE# 1] naming McCray and Blake, in which plaintiff Robertson complained of not being able to file his aforementioned voluminous October 1 complaint [which he claims to have finished drafting on September 30 and attempted to mail with insufficient postage on October 1, 2003], an Order was entered [DE# 8] instructing Robertson to simply submit an abbreviated statement of his claims, so that the Court could perform an initial screening [as required under the Prison Litigation Reform Act of 1995; see 28 U.S.C. § 1915A] to determine whether the claims were frivolous or non-frivolous. He was instructed that photocopying of multiple copies was unnecessary, and that he needed to submit only one [the original] to the Clerk.
Thereafter, Robertson continued to assert that lack of photocopying and writing/mailing supplies was impeding his ability to file in this court, and sought leave to amend. A request by him for leave to add Keefe as a defendant was denied for reasons stated in the Court's Order (DE# 17), but after further filings, including a Request by Robertson for reconsideration, an Order (DE# 32) was entered allowing Robertson to amend one more time. The Order (DE# 32) noted that Robertson had previously sought leave to file a 125 page pleading. The Order (DE# 32) explicitly instructed Robertson that he must file a single superseding amended complaint, with all claims against all defendants, and in doing so it admonished that the Court would not permit a 125 page complaint, and instructed Robertson to restrict the body of his filing to 20 pages, with additional exhibits if necessary. Thereafter, Robertson continued to assert his inability to file the Superseding Amended Complaint, resulting in the entry of additional Orders of Instruction to the parties, and ultimately an evidentiary hearing on the plaintiff's inability to file (see Orders, DE#s 34, 36, and 48; and Minutes DE# 47), following which the Superseding Amended Complaint naming McCray, Blake, and Keefe was filed (DE# 52).
Non-Legal Correspondence
Plaintiff Robertson has also alleged that the policy restricting MDC-DCR inmates to one free stamp per week affected his ability to send mail to elected officials, his relatives, etc. Such correspondence, however, is non-legal mail, and Robertson has identified only one specific instance in which he was unable to send such correspondence. This was his inability to write to relatives, including his brother, around the time of Christmas 2003. (See Brief, at DE# 61 at scanned p. 7; and Grievances dated December 19 and 31, 2003, at DE# 61 at scanned pp. 33 and 34). The limitations on this type of correspondence, as alleged by Robertson, however, were not based on any ban against correspondence, censorship, or the like. Rather, Robertson's claim that his ability to correspond was abridged, is based solely on the defendants' failure to provide him free stamps to mail such correspondence. That claim fails. See Van Poyck v. Singletary, 106 F.3d 1558 (11th Cir. 1997) (indigent inmates do not have right to free postage for personal mail) (citing Hershberger v. Scaletta, 33 F.3d 955, 956-57 (8th Cir. 1994); Dawes v. Carpenter, 899 F.Supp. 892, 899 (N.D.N.Y. 1995) ("[T]he Constitution does not require the State to subsidize inmates to permit [personal] correspondence").
Indigent Kits, and Hygiene Items
Although the Constitution does not and the Court cannot dictate the general conditions that should exist in jails and prisons by substituting its views for those of legislators and jail administrators, the Constitution does require conditions of confinement imposed by states to meet certain minimum standards.Bell v. Wolfish, 441 U.S. 520, 552 (1979); Hamm v. DeKalb County, 774 F.2d 1567, 1571 (11 Cir. 1985), cert. denied, 475 U.S. 1096 (1986). The Eighth Amendment applied through the Fourteenth Amendment prohibits the infliction of cruel and unusual punishment and thereby places limitations on the conditions in which the State may confine those convicted of crimes. Robinson v. California, 370 U.S. 660 (1962); Rhodes v. Chapman, 452 U.S. 337 (1981); Hamm, 774 F.2d 1567.
The Eleventh Circuit has held that in order to prevail on an Eighth Amendment claim for damages under section 1983, in addition to the requirement that the defendant must have acted under color of state law, a plaintiff must prove three elements: 1) the infliction of unnecessary pain or suffering, Rhodes, 452 U.S. at 347; 2) deliberate indifference on the part of the defendant(s), Wilson v. Seiter, 501 U.S. 294, 302-03 (1991); and 3) causation, Williams v. Bennett, 689 F.2d 1370, 1389-90 (11 Cir. 1982), cert. denied, 464 U.S. 932 (1983). The first two elements of an Eighth Amendment claim, the `objective' and `subjective' elements, must both be satisfied. LaMarca v. Turner, 995 F.2d 1526, 1535 n. 17 (11 Cir. 1993) (citing Hudson v. McMillian, 503 U.S. 1 (1992)). Various conditions, alone or together, may make intolerable an otherwise constitutional term of imprisonment, Rhodes, 452 U.S. at 347; Ingraham v. Wright, 430 U.S. 651, 670 n. 38 (1977); however, only unnecessary and wanton infliction of pain rises to the level of cruel and unusual punishment. Whitley v. Albers, 475 U.S. 312 (1986).
Only such a degree of disregard for the prisoner's rights, which offends evolving contemporary standards of decency and is repugnant to the conscience of mankind, separates official conduct that is actionable under Section 1983 from simple negligence which is not. When the plaintiff fails to allege and show proof of such an abuse, what may be an ordinary tort does not rise to the level of a constitutional violation actionable under Section 1983. Rhodes, 452 U.S. at 347; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Byrd v. Clark, 783 F.2d 1002, 1006 (11 Cir. 1986); Hamm, 774 F.2d at 1572; Williams, 689 F.2d at 1380 (11 Cir. 1982). Negligence, alone, cannot be a basis for recovery under § 1983. Davidson v. Cannon, 474 U.S. 344 (1986); Daniels v. Williams, 474 U.S. 327 (1986); Estelle, 429 U.S. 97.
The Eleventh Circuit has held that the standard for providing basic human necessities to those incarcerated or in detention is the same under both the Eighth and Fourteenth Amendments. Hamm,supra, 774 F.2d at 1573-74. Such necessities include reasonably adequate food, clothing, shelter, and sanitation. Hamm, supra at 1572.
It appears, as discussed above, at page 6 of this Report, that on more than half of the occasions that he requested them, Robertson did not receive free Indigent Kits between 2003 and 2005. Under certain circumstances, deprivation of essential hygiene items may rise to the level of a constitutional deprivation, see Chandler v. Baird, 926 F.2d 1057, 1063-65 (11 Cir. 1991) (examining deprivation of soap, toothbrush, toothpaste and toilet paper as possible Eighth Amendment deprivation). Courts, however, have held that brief deprivations relating to hygiene items do not offend the constitution, see Harris v. Fleming, 839 F.3d 1232, 1235 (7 Cir. 1988) (5 day neglect of a prisoner's need for toilet paper, soap, tooth brush, and toothpaste was not unconstitutional), and that where longer deprivations were alleged, a plaintiff's showing of harm or injury was a necessary element, see Penrod v. Zavaras, 94 F.3d 1399, 1404 (10 Cir. 1996) (finding that denial of toothpaste gave rise to an issue of material fact regarding an alleged Eighth Amendment violation, because the plaintiff alleged he was deprived of toothpaste from July to September, and showed that serious harm stemmed from the deprivation: he had been treated by a dentist for bleeding and receding gums as well as for tooth decay).
In this case, there is no allegation by Robertson, whatsoever, or evidence of record [such as medical documents], to suggest that as a result of not receiving, free of charge on a weekly basis, a Kit containing such hygiene items [deodorant, razor, shampoo, toothpaste, and soap] he was subjected to any pain or medical problems which would give rise to a constitutional deprivation as contemplated by the Supreme Court in Estelle and the Eleventh Circuit in Hamm.
IV. Keefe's Motion to Dismiss (DE# 103)
Keefe's motion to dismiss (DE# 103), to which the plaintiff Robertson has filed no response, was served upon Robertson before his May 16, 2006 transfer from OCI.
The defendant Keefe, citing George v. Pacific-CSC Work Furlough, 91 F.3d 1227 (9 Cir. 1996), argues that, generally, a private contractor performing government functions does not become a "state actor," and that the plaintiff has made no allegation that Keefe is anything other than a private company. Eleventh Circuit precedent exists, however, which states that when a private corporation contracts with a state to perform a function traditionally within the province of the state government, then that corporation is to be treated like a governmental entity acting under color of state law within the meaning of § 1983. Buckner v. Toro, 116 F.3d 450, 452 (11 Cir. 1997) ("When a private entity . . . contracts with a county to provide medical services to inmates, it performs a function traditionally within the exclusive prerogative of the state. In so doing, it becomes the functional equivalent of the municipality").
In light of the holding in Buckner v. Toro, it does not appear that based on the ground for relief asserted by Keefe [i.e., that it was not a "person" acting under color of state law], the amended complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6).
Here, however, where the plaintiff, in the face of the other defendants' [McCray's and Blake's] motion for summary judgment has failed to establish that there was any underlying constitutional deprivation [either denial of access to the courts, or any hygiene-related deprivation; or abridgement of his constitutional right to non-legal communication] occasioned by Robertson's failure to receive all free Indigent Kits he had requested, it appears that the complaint against Keefe [the corporation contracted to assemble and provide Indigent Kits at a modest cost to the MDC-DCR] should be dismissed pursuant to 42 U.S.C. § 1915(e)(2)(B)(ii), and Keefe's outstanding motion (DE# 103) should be dismissed, as moot.
Although the complaint against Keefe was sufficient to survive initial screening, for reasons discussed below in this Report it has now become apparent, after further development of the record, that the complaint against Keefe is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and Moreland v. Wharton, 899 F.2d 1168, 1170-71 (11 Cir. 1990). Cf See Al-Hashimi v. Scott, 756 F.Supp. 1567, 1569 (S.D.Ga. 1991) (stating that "[a]lthough the other defendants . . . did not join in the motion for summary judgment, the rationale for granting [the moving defendant's] motion applies equally to them" and, thus, granting summary judgment as to all defendants); Hayes v. Rule, No. 1:03 CV 1196, 2005 WL 2136946, at *3 (M.D.N.C. Aug. 19, 2005) (courts have held that if one defendant is granted a motion for summary judgment, the district court may sua sponte enter summary judgment in favor of nonmoving, additional defendants "if the motion raised by the first defendant is equally effective in barring the claim against the other defendants, and the plaintiff had an adequate opportunity to argue in opposition to the motion") (quoting Colan v. Cutler-Hammer, Inc., 812 F.2d 357, 360, n. 2 (7 Cir. 1987));Hannczar v. Tarpey, No. 87 C 9421, 1987 WL 31422, at *1-2 (N.D.Ill. Dec. 30, 1987) (in case where the plaintiff has suffered no injury, and there could be no constitutional tort, the court held that "since there was no constitutional deprivation there cannot be any Section 1983 claims against any of the defendants;" and further held under those circumstances that where the motion for summary judgment joined by some defendants was "equally effective in barring the claim against the other defendants," it was unnecessary for the Court to "deal with" a Rule 12(b)(6) motion to dismiss for failure to state a claim which was filed by a defendant who did not join in the others' motion for summary judgment).
On April 26, 1996, the Prison Litigation Reform Act of 1995 (" PLRA") was signed into law, modifying the requirements for proceeding in forma pauperis in federal courts. Statutory provisions of the PLRA, which pertain to screening of prisoner complaints, and dismissal of claims at initial screening or thereafter, are codified under 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A, as follows.
Under the April 26, 1996 enactments, 28 U.S.C. § 1915 was amended. As amended, this portion of the PLRA reads in pertinent part, as follows:
Sec. 1915 Proceedings in Forma Pauperis
* * *
(e)(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that —
* * *
(B) the action or appeal —
* * *
(I) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief from a defendant who is immune from such relief.
Prior to the amendment of the Statute in April of 1996, dismissal of such a claim was pursuant to 28 U S C. § 1915(d). The Supreme Court had identified two classes of cases in which 28 U.S.C. § 1915(d) authorized courts to dismiss cases sua sponte: (i) "claim[s] based on an indisputably meritless legal theory," and (ii) "those claims whose factual contentions are clearly baseless." Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11 Cir. 1990), quoting Neitzke v. Williams, 490 U.S. 319 (1989).
Subsequent to the decision in Neitzke v. Williams, supra, the Eleventh Circuit reviewed the law in this area in Moreland v. Wharton, 899 F.2d 1168 (11 Cir. 1990). The Court noted the following:
"[D]rawing from his years of experience in reading complaints and living lawsuits from start to finish," a district judge is uniquely qualified to decide the likelihood that a lawsuit will succeed on the merits. Spencer v. Rhodes, 656 F.Supp. 458, 461 (E.D. N.C.), aff'd without opinion, 826 F.2d 1061 (4th Cir. 1987).Moreland v. Wharton, supra at 1170. The Eleventh Circuit went on to cite Harris v. Menendez, 817 F.2d 737, 740 (11 Cir. 1987), a pre-Neitzke case, to reaffirm the proposition that even post-Neitzke a Court may dismiss a case after it has conducted a "sufficient inquiry" to determine whether the plaintiff's realistic chances of ultimate success are slight. Moreland, supra at 1171.
Here, the "sufficient inquiry" was provided by the summary judgment proceedings in this case, to which the plaintiff Robertson was a party, including the Cross Motion for Summary Judgment by McCray and Blake, as to which the plaintiff was advised of his right to respond, and did not do so.
V. Conclusion
It is therefore recommended that: 1) the joint motion for summary judgment by defendants McCray and Blake (DE# 84) be granted, as to all claims; 2) McCray's and Blake's Motion for Judgment by Default (DE# 114) be denied; 3) as to the defendant Keefe Commissary Network, the amended complaint be dismissed, as to all claims, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), andMoreland v. Wharton, 899 F.2d 1168, 1170-71 (11 Cir. 1990); 4) the defendant Keefe's motion to dismiss (DE# 103) be dismissed, as moot; and 5) this case be closed.
Objections to this report may be filed with the District Judge within ten days of receipt of a copy of the report.