Plunkett v. Luttrell, 94-6512

• Citation: 52 F.3d 326
• Decision Date: 21 April 1995
• Docket Number: No. 94-6512,94-6512
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Noel Edward PLUNKETT, Plaintiff-Appellant, v. Mark H. LUTTRELL, Warden; M.F. Willis; D. Mills, Officer; Jane Doe; John Doe, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 326

52 F.3d 326

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Noel Edward PLUNKETT, Plaintiff-Appellant, v. Mark H. LUTTRELL, Warden; M.F. Willis; D. Mills, Officer Jane Doe; John Doe, Defendants-Appellees.

No. 94-6512.

United States Court of Appeals, Sixth Circuit.

April 21, 1995.

Before: MERRITT, Chief Judge; LIVELY and KEITH, Circuit Judges.

ORDER

Noel Edward Plunkett, a federal prisoner presently confined at the Federal Correctional Institution (FCI) in Manchester, Kentucky, moves for counsel on appeal from a district court order dismissing his civil rights case filed under the authority of Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Seeking monetary, declaratory and injunctive relief, Plunkett sued the Warden at FCI-Manchester, the Inmate Systems Manager, an Inmate Systems Officer, and other Jane and John Doe defendants, in their individual and official capacities. A summation of the factual allegations underlying Plunkett's complaint is set forth in the magistrate judge's report and recommendation and will not be repeated here. Suffice it to say that Plunkett alleged that his rights pursuant to the First and Fifth Amendments, his rights pursuant to unspecified sections of the Kentucky Constitution, and his rights pursuant to Kentucky law involving intentional infliction of emotional distress, were violated generally because of the manner in which his legal mail has been handled while he has been confined at FCI-Manchester.

The magistrate judge recommended that the complaint be dismissed as frivolous pursuant to 28 U.S.C. Sec. 1915(d) and Fed.R.Civ.P. 12(b)(6). Plunkett filed objections in the form of a motion to amend his complaint. Thereafter, the district court adopted the report and recommendation as the opinion of the court and dismissed Plunkett's complaint.

Upon review, we conclude that the district court did not abuse its discretion when it dismissed as frivolous, Plunkett's right of access to the courts claim relative to his outgoing legal mail. See Denton v. Hernandez, 112 S.Ct. 1728, 1734 (1992). Plunkett's claim lacks an arguable or rational basis in fact because, as pointed out by the magistrate judge, the filing date does not always indicate the actual date that an item was received by a court. Because there is a plausible possibility why the June 24 letter, postmarked June 28, did not appear in the record of London Civil Action No. 93-194 until July 5, Plunkett's claim lacks an arguable or rational basis in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Upon further review, we affirm the district court's decision as to the remaining claims because Plunkett undoubtedly can prove no set of facts in support of his claims that would entitle him to relief. Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993); Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

The district court properly dismissed the Bivens claim against all of the named defendants for lack of specificity. Plunkett failed to set forth with any degree of specificity which of the complained of acts were committed by which of the named defendants. In order to state a claim for relief, Plunkett must allege that the defendants are accountable because they were personally involved in opening his incoming legal mail outside his presence or in delaying the court's receipt of his emergency injunction. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976). In this case, Plunkett's complaint failed to allege any factual connection between the actions challenged and the named defendants. Bare and conclusory allegations that a defendant...