O'Connor v. Carnahan

• Decision Date: 21 October 2015
• Docket Number: Case No.: 3:09cv224/WS/EMT
• Court: U.S. District Court — Northern District of Florida
• Parties: NYKA O'CONNOR, Plaintiff, v. M.L. CARNAHAN, et al., Defendants.

NYKA O'CONNOR, Plaintiff, v. M.L. CARNAHAN, et al., Defendants.

Case No.: 3:09cv224/WS/EMT

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PENSACOLA DIVISION

October 21, 2015

REPORT AND RECOMMENDATION

This is an action filed pursuant to 42 U.S.C. § 1983 by Plaintiff Nyka O'Connor ("Plaintiff"), a Florida Department of Corrections ("FDOC") inmate who proceeds pro se and prepaid the filing fee in full. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(C); see also 28 U.S.C. § 636(b)(1)(B)(C), and Fed. R. Civ. P. 72(b). Now before the court is the motion for summary judgment and related exhibits filed by Defendants Randy Agerton ("Agerton"), Shannon Milliken ("Milliken"), Marty Morrison ("Morrison"), Jeannine Moore ("Moore"), Frank Ontko ("Ontko"), and Wayne Green ("Green") (together, "Defendants") (see docs. 298, 299, 306 (sealed), & 327; see also doc. 336). Plaintiff has responded (docs. 364, 364-1). Plaintiff has also filed a motion for partial summary judgment (docs. 302), to which Defendants have responded (doc. 333). Upon consideration, for the reasons given below the court recommends that Defendants' motion for summary judgment be granted and that Plaintiff's motion for partial summary judgment be denied.

I. PROCEDURAL HISTORY

The procedural history of this aged case is outlined in Reports entered March 27, 2012, and November 18, 2013, and need not be repeated at length here (see docs. 95 and 173, respectively adopted by district court on June 15, 2012, at doc. 103, and January 27, 2014, at doc. 183).¹ In brief, Plaintiff is currently incarcerated at Union Correctional Institution but was housed at Santa Rosa Correctional Institution ("SRCI") in 2008 when the events giving rise to this action occurred. The court permitted Plaintiff to amend his complaint three times in an effort to state a viable claim for relief (docs. 7, 47, 86). On June 15, 2012, on this court's recommendation, the district court dismissed with prejudice the majority of Plaintiff's claims in his Fourth Amended Complaint and dismissed other claims without prejudice; it also authorized Plaintiff to file a Fifth Amended Complaint limited to free speech claims involving the treatment of his mail and related state law claims (docs. 95, 103). The undersigned rejected Plaintiff's proposed Fifth Amended Complaint (doc. 116), but ordered service of Plaintiff's Sixth Amended Complaint, which is dated October 31, 2012 (respectively, docs. 120, 123).

On January 27, 2014, adopting this court's recommendation, the district court dismissed Plaintiff's claims in the Sixth Amended Complaint as to ten of the named Defendants² (doc. 183). Such dismissal left Plaintiff's claims against the then-unidentified by name and unserved Defendants Agerton, Milliken, Morrison, Moore, Ontko, and Green, who are past and current members of the FDOC Literature Review Committee ("LRC").³ After these Defendants were identified and servedwith process and discovery concluded, the parties filed their motions for summary judgment and responses.⁴ Both motions are now ripe for review.

II. RELEVANT ALLEGATIONS AND CLAIMS OF THE SIXTH AMENDED COMPLAINT

Defendants Agerton, Milliken, and Morrison are the current members of the LRC, and Defendants Moore, Ontko, and Green were members of the LRC at the time Plaintiff's claims arose. With respect to these six Defendants, Plaintiff makes the following allegations and claims in the Sixth Amended Complaint.

In October 2008, the LRC approved the "banning" of two texts from The American's Bulletin ("TAB") which had been mailed to Plaintiff and impounded by SRCI mail room staff; the stated basis for the ban was that the publications included "information on how to file fraudulent papers against officials" (doc. 120 at 9, ¶¶ 2, 3). According to Plaintiff, Defendants' ban "affects ALL FDOC Institutions" (id., ¶ 6) (emphasis in original). Also, after correctional staff confiscated a TAB newspaper from Plaintiff's cell and impounded it, the LRC approved the "banning" of all incoming TAB materials, thereby prohibiting "ALL FDOC inmates from rec[ei]ving TAB materials" (id. at 10, ¶ 13) (emphasis in original). Plaintiff asserts generally that Defendants have acted "in bad faith, with malicious purpose, exhibited wanton [and] willful disregard for [his] rights and property" (id. at 11, ¶ 3). More specifically, Plaintiff claims that the LRC's ban on TAB materials constitutes an infringement of the rights to free speech under the First Amendment of the U.S. Constitution and under Article 1, § 4 of the Florida Constitution (id. at 13, ¶¶ 8a, 8b and at 15, ¶¶ 15a, 15b).⁵ Plaintiff further claims that the LRC's actions violate Fla. Stat. §§ 768.28, 943.13(7), 944.09, and 20.315, and Fla. Admin. Code Rules 33-208.002(3)(a) and 33-501.401 (id. at 13, ¶ 8a, ¶ 8b and at 15, ¶ 15b).As relief, Plaintiff seeks "damages including: punitive, compensatory, nominal[,] Mental/Emotional [sic]" (id. at 11). He also requests declaratory and injunctive relief, costs, attorneys' fees, the appointment of counsel, and any other relief the court deems appropriate (id. at 11, 17).

III. SUMMARY JUDGMENT STANDARD

In order to prevail on a motion for summary judgment, the moving party must show that the nonmoving party has no evidence to support his case or present affirmative evidence that the nonmoving party will be unable to prove his case at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2553-54, 91 L. Ed. 2d 265 (1986). If the moving party successfully negates an essential element of the nonmoving party's case, the burden shifts to the nonmoving party to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A dispute is "genuine" if the "evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id., 477 U.S. at 248. A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. The nonmoving party must show more than the existence of a "metaphysical doubt" regarding the material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Speculation or conjecture from a party cannot create a genuine issue of material fact. See Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). "A mere scintilla of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment." Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004); see also Celotex Corp., 477 U.S. at 324. The nonmoving party must either point to evidence in the record or present additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. See Celotex Corp., supra; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997) (Rule 56 requires the nonmoving party to go beyond the pleadings and by his or her own affidavits, or by the depositions, documents, affidavits or declarations, admissions, interrogatory answers or other materials on file designate specific facts showing that there is a genuine issue for trial); Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994).

Evidence presented by the nonmoving party in opposition to the motion for summary judgment, and all reasonable factual inferences arising from it, must be viewed in the light most favorable to him. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999). Nonetheless, the nonmoving party still bears the burden of coming forward with sufficient evidence of every element that he must prove. See Celotex Corp., 477 U.S. at 317. A motion for summary judgment should be granted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 322.

"Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally construed." Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998); see also Loren v. Sasser, 309 F.3d 1296, 1301 (11th Cir. 2002) (stating that "[i]n the summary-judgment context, we construe pro se pleadings more liberally than those of a represented party."). Nevertheless, "a pro se litigant does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to his case in order to avert summary judgment." Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Although courts should show leniency to pro se litigants, they should not serve as de facto counsel or "rewrite an otherwise deficient pleading in order to sustain an action." GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998).

On cross-motions for summary judgment, the court must construe facts and draw inferences "in favor of the party against whom the motion under consideration is made." Samuelson v. LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008) (internal quotation marks omitted); see also Shaw v. Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 538-39 (5th Cir. 2004) ("Cross-motions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law."); 10A Charles Alan Wright & Arthur R. Miller, ...