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Peterka v. Dixon

United States District Court, Northern District of Florida
Jun 14, 2023
4:21cv367-WS-MAF (N.D. Fla. Jun. 14, 2023)




DANIEL JON PETERKA, D.O.C. # 119773, Plaintiff, v. RICKY D. DIXON, in his official capacity as Secretary of the Florida Department of Corrections, and JPAY, LLC, Defendants.



The pro se Plaintiff brought this civil rights case against the Secretary of the Department of Corrections and JPay, LLC, a contractor providing services to Florida prisoners. Plaintiff's amended complaint, ECF No. 46, concerns the use of multimedia kiosks and tablets which are made available to Florida prisoners through the Department's contract with JPay. ECF No. 46 at 5. Kiosks and tablets enable Florida prisoners to access an electronic messaging system, identified as “Secure Mail.” Id. at 6. Prison officials screen those eCommunications pursuant to Administrative Rule Page 2 of 9 33-602.900(7). Id. at 7-8. Plaintiff alleged that his eCommunications were censored without explanation and he challenged his inability to appeal rejection of eCommunications. Count I of the amended complaint was brought against the Department of Corrections (Defendant Dixon in his official capacity), asserting a procedural due process claim in violation of his First and Fourteenth Amendment rights. Id. at 6-9. Count II challenged charges assessed to print out the eCommunications and was brought against JPay and the Department, asserting a violation of the Fifth Amendment's Takings Clause. Id. at 10-12. Count III was also brought against both the Department and Jpay. Id. at 12-14. He claimed the taking of his money amounted to “deliberate indifference,” shocked the conscience, and was “outright theft,” in violation of the Fourteenth Amendment. Id. at 13.

The Secretary filed a motion to dismiss, ECF No. 52, and JPay filed a separate motion to dismiss. ECF No. 54. Plaintiff filed responses in opposition to those motions. ECF Nos. 56-57. A Report and Recommendation was entered in mid-March 2023, ECF No. 58, recommending granting Jpay's motion to dismiss and granting the Secretary's motion in part. More specifically, it was recommended that Counts II and III of Plaintiff's amended complaint, ECF No. 46, be dismissed, but the First Amendment claim presented in Count I should continue as to Defendant Dixon only for declaratory and injunctive relief. ECF No. 48.

Defendant Dixon argued that Plaintiff failed to exhaust his claim because he did not file a Petition to Initiate Rulemaking (‘PIRM') pursuant to FLA. STAT. § 120.54(7). THE UNDERSIGNED MAGISTRATE JUDGE RECOMMENDED THAT DEFENDANT'S ARGUMENT BE REJECTED. Case No. 4:21cv367-WS-MAF

On April 27, 2023, Senior United States District Judge William Stafford adopted the Report and Recommendation in part. ECF No. 61. His Order dismissed Counts II and III, which effectively dismissed JPay from this action. Id. at 4. However, Judge Stafford deferred ruling on the recommendation to proceed with Count I, finding that a pending decision from the Eleventh Circuit in Sims v. Sec'y, Fla. Dep't of Corr., case number 19-13745, would likely have a “controlling effect” as it relates to the issue of exhaustion of administrative remedies. Id. at 3. The effect of Judge Stafford's Order is to stay this case until a decision is rendered in Sims.

On May 9, 2023, the pro se Plaintiff filed a motion requesting leave to file a second amended complaint. ECF No. 62. Plaintiff explains that his proposed second amended complaint seeks to cure the deficiency identified in Count II of his amended complaint. Id. He simultaneously provided a copy of his second amended complaint, ECF No. 63, with the motion, ECF No. 62.

Local Rule 15.1 states that “if, in a definitive ruling, the Court has dismissed a claim or struck a defense without leave to amend, the claim or defense must not be included in a later amended pleading.” N.D. Fla. Loc. R. 15.1(A). Judge Stafford's Order dismissed Count II of Plaintiff's amended complaint, although it did not state that it was dismissed without leave to amend. Even though it did not, Plaintiff's motion to amend should be denied because he is seeking to reassert a claim already dismissed from this case.

In the event this recommendation is rejected, Plaintiff's proposed second amended complaint has been reviewed as required by 28 U.S.C. § 1915A. Plaintiff retains JPay as a Defendant in addition to the Department. ECF No. 63. Count I is once again brought against the Department, asserting a procedural due process violation under the First and Fourteenth Amendments. Id. at 6. He again argues that his inability to challenge rejections is unconstitutional. Id. at 9.

Count II of the proposed pleading is brought against the Department and JPay, once again asserting a Takings Clause violation of the Fifth Amendment. Id. at 10. Plaintiff alleges that he is a “Special Housing Unit” prisoner, housed on death row, who is supposed to be “exempt” for charges for printouts of Secure Mail messages. Id. at 10-11. Plaintiff further alleges that the “money taken (profit generated) is being used, at least in part, to provide goods and services to the FDOC, and in that way” the money is converted “for public use.” Id. at 12. Plaintiff states that JPay provides “tablets for the FDOC's education department, wellness equipment for prisoners, and iPads and computers for Department staff.” Id.

As noted in the prior Report and Recommendation, the Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” Knick v. Twp. of Scott, Pennsylvania, 204 L.Ed.2d 558, 139 S.Ct. 2162, 2167 (2019); see also Brown v. Legal Found. of Washington, 538 U.S. 216, 231-32, 123 S.Ct. 1406, 1417, 155 L.Ed.2d 376 (2003) (noting that a State has “authority to confiscate private property” but “the Fifth Amendment imposes two conditions on the exercise of such authority: the taking must be for a ‘public use' and ‘just compensation' must be paid to the owner”). It does not matter whether the property taken is “real or personal,” people do not expect their property to be taken away. Cedar Point Nursery v. Hassid, 210 L.Ed.2d 369, 141 S.Ct. 2063, 2074 (2021) (citing to Horne v. Dep't of Agric., 576 U.S. 350, 361, 135 S.Ct. 2419, 2427, 192 L.Ed.2d 388 (2015)).

Although a Fifth Amendment “Takings Clause” claim applies to federal officials, and Plaintiff has only named state actors, the “Clause is made applicable to the States through the Fourteenth Amendment.” Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 17 S.Ct. 581,41 L.Ed. 979 (1897) (cited in Murr v. Wisconsin, 198 L.Ed.2d 497, 137 S.Ct. 1933, 1942 (2017)). Thus, Plaintiff's claim is reviewed as though properly alleged under the Fourteenth Amendment.

Previously, Defendant JPay argued that the “Takings Clause does not require compensation unless private property has been taken ‘for public use.'” U.S. Const. amend. V. (cited in Support Working Animals, Inc. v. DeSantis, 457 F.Supp.3d 1193, 1215 (N.D. Fla. 2020)). Plaintiff's amended complaint alleged that he should not have been charged to receive printouts because he is in Special Housing, but that $345.25 was wrongfully taken from his account. ECF No. 46 at 10-11. The amended complaint did not include any allegations of a taking for public use. It was concluded that Plaintiff's assertion of the FDOC and JPay's “profit” was insufficient to show a taking for “public use.” However, another reason also existed to support the dismissal of Plaintiff's Takings Clause claim.

Judicial notice was taken of Plaintiff's grievances, submitted with his initial complaint. ECF No. 1-1 (Appendix 1). Review of those grievances provided clarification of Plaintiff's “takings” claim and show he did not suffer a “taking” without compensation. Plaintiff's grievances reveal that he sought a refund of charges for printouts of email messages. See ECF No. 1-1 at 13-22. The responses to Plaintiff's grievances reveal that Plaintiff claimed he was charged for printouts, but he argued that as a “death row/special housing” inmate, he was not supposed to be charged for those copies. Id. at 14-15. The responses to his grievances explain that printouts are given “free” to special housing inmates when the inmate cannot access his emails. Id. at 14. However, if the inmate has access to a tablet and kiosk where he can review his emails, he will be charged for printouts. Id. at 14, 18. That is reasonable. Plaintiff possessed a tablet and also had “regular access to a kiosk.” Id. at 18. Thus, Plaintiff was charged for obtaining a printed copy, because it was a cost associated with his request. It was not a “taking” because it was not government derived. Plaintiff was not required to have a print out of his emails; it was his choice, which came with a charge. Put another way, it was an exchange; he was given something in exchange for his money and, thus, he suffered no pecuniary loss. The Supreme Court said that “pecuniary compensation must be measured by [one's] net losses rather than the value of the public's gain.” Brown, 538 U.S. at 237, 123 S.Ct. at 1419-20. Thus, Plaintiff's takings claim must fail because he did not suffer a loss. Plaintiff was simply charged for printouts he requested and he received something of value.

It is true that the Court “should freely give leave [to amend a complaint] when justice so requires.” Fed.R.Civ.P. 15(a)(2) (quoted in Rivas v. Bank of New York Mellon, 777 Fed.Appx. 958, 965 (11th Cir. 2019)). However, the Court “may deny a motion for leave to amend as futile ‘when the complaint as amended would still be properly dismissed or be immediately subject to summary judgment for the defendant.'” Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007) (quoted in Rivas, 777 Fed.Appx. at 965). In this case, Plaintiffs motion to amend should be denied as futile.


It is respectfully RECOMMENDED that Plaintiff's motion for leave to file a second amended complaint, ECF No. 62, be denied and this case proceed on Plaintiff's claim against Defendant Dixon in Count I of the amended complaint, ECF No. 46. It is also RECOMMENDED that this case be REMANDED for further proceedings.


Within fourteen (14) days after being served with a copy of this Report and Recommendation, a party may serve and file specific written objections to these proposed findings and recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the objections shall be served upon all other parties. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. Fed.R.Civ.P. 72(b)(2). Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. If a party fails to object to the Magistrate Judge's findings or recommendations as to any particular claim or issue contained in this Report and Recommendation, that party waives the right to challenge on appeal the District Court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.

Summaries of

Peterka v. Dixon

United States District Court, Northern District of Florida
Jun 14, 2023
4:21cv367-WS-MAF (N.D. Fla. Jun. 14, 2023)
Case details for

Peterka v. Dixon

Case Details

Full title:DANIEL JON PETERKA, D.O.C. # 119773, Plaintiff, v. RICKY D. DIXON, in his…

Court:United States District Court, Northern District of Florida

Date published: Jun 14, 2023


4:21cv367-WS-MAF (N.D. Fla. Jun. 14, 2023)