Grant v. Powell, Case No. 5:19-cv-45-TKW/MJF

CourtU.S. District Court — Northern District of Florida
Writing for the CourtMichael J. Frank United States Magistrate Judge
PartiesHEWITT A. GRANT, II, Plaintiff, v. EMMETT POWELL, Defendant.
Decision Date17 December 2019
Docket NumberCase No. 5:19-cv-45-TKW/MJF

HEWITT A. GRANT, II, Plaintiff,
v.
EMMETT POWELL, Defendant.

Case No. 5:19-cv-45-TKW/MJF

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

December 17, 2019


REPORT AND RECOMMENDATION

This section 1983 action is before this court on Defendant Emmett Powell's motion to dismiss, (ECF No. 17), and Plaintiff's response, (ECF No. 19). For the reasons set forth below, the undersigned respectfully recommends that Powell's motion to dismiss be granted.1

I. Background

On September 28, 2018, Plaintiff Hewitt A. Grant, II, while confined at Calhoun Correctional Institution, retrieved his legal mail pertaining to his habeas corpus proceeding pending in the Circuit Court of the Fourteenth Judicial Circuit in and for Calhoun County ("Florida Circuit Court"). (ECF No. 1 at p. 28, ECF No. 7

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at p. 8 ¶¶ 2-3).2 While Grant was returning to his dormitory, Sergeant Emmett Powell—who was a correctional officer at the Calhoun Correctional Institution—stopped Grant and escorted him to an office. (ECF No. 7 at p. 8 ¶ 4). Powell then conducted a strip search of Grant, confiscated Grant's legal mail, and placed Grant in confinement for a purported violation of Florida Department of Corrections ("FDC") rules. (Id. at p. 11 ¶ 13). Grant alleges that Powell did not properly store Grant's legal mail as required by FDC policy and never returned the legal mail to Grant. (Id. at p. 11 ¶ 13, p. 13 ¶ 19).

Grant states that this legal mail from the Florida Circuit Court was important insofar as it contained information regarding a pending deadline, the case number, important caselaw, and the Florida Circuit Court's mailing address. (Id. at p. 9 ¶ 10). On October 9, 2019, Grant filed a request with the Florida Circuit Court seeking a copy of the confiscated order. (ECF No. 7 at p. 13 ¶ 21). On October 22, 2018, Grant's request was docketed by that court. See Grant v. Jones, No. 2018-CA-45 (Fla. Cir. Ct. Oct. 22, 2018).

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At some point prior to November 28, 2018, the Florida Circuit Court sent Grant a copy of the order, which set a deadline for the FDC to respond to Grant's habeas petition. (ECF No. 1 at p. 28; ECF No. 7 at p. 13 ¶ 22). The order also provided Grant an opportunity to file a reply thirty days after the FDC filed its response. (Id.). Although Grant does not allege when he received a copy of this order, on November 28, 2018, Grant filed a motion for entry of default because the FDC purportedly failed to comply with that order. Grant, No. No. 2018-CA-45 at Doc. 6. The FDC filed a motion to dismiss Grant's habeas petition on December 19, 2018. (Id. at Doc. 9). Grant filed a response to the motion to dismiss on January 10, 2019. (Id. at Doc. 10).

In his amended complaint, Grant conceded that on January 28, 2019, the Florida Circuit Court dismissed his habeas petition because the issues raised were "outside the purview of the DOC, an executive branch." (ECF No. 7 at p. 6). Specifically, the Florida Circuit Court held:

[The issues raised by Grant in his state habeas petition] should have been raised in a criminal appeal before the Florida Second District Court of Appeal. They are all outside the purview of the Department, which is an executive branch agency and therefore, pursuant to Florida's constitutional separation of powers, "lacks the power to adjudicate the legality of the sentence or to add or delete sentencing conditions." Pearson v. Moore, 767 So. 2d 1235, 1239 (Fla. 1st DCA 2000), approved and remanded, 789 So. 2d 316 (Fla. 2001) (citing Art. II, § 3, Fla. Const.; Slay v. Singletary, 676 So. 2d 456, 457 (Fla. 1st DCA 1996) ("[The Department] lacks the authority to correct an illegal sentence or render the illegality harmless."); Wilson v. State, 603 So. 2d 93, 94 (Fla. 5th DCA 1992); Hudson v. State, 682 So. 2d 657, 658

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n.1 (Fla. 3d DCA 1996)). The Department simply has no constitutional authority to relitigate Petitioner's criminal trial.

(ECF No. 21-1 at 2). In light of this, the Florida Circuit Court dismissed Grant's habeas petition with prejudice.

The Florida Circuit Court decision was affirmed per curiam by the First District Court of Appeal without an opinion. (ECF No. 21-2 at 1). Despite the dismissal of his state habeas petition and the affirmance of the dismissal, Grant alleges that Powell's confiscation of his legal mail violated Grant's First, Fifth, and Fourteenth Amendment right to obtain access to the Florida Circuit Court that adjudicated his habeas petition. (ECF No. 7 at 12 ¶ 19).

II. Standard

Motions to dismiss for failure to state a claim are governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, "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) (quotation and citation omitted); Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1051 (11th Cir. 2015).

A claim is plausible on its face where "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 (citation omitted). Plausibility means "more than a sheer possibility that a defendant has acted

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unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quotation and citation omitted).

The determination of whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (citation omitted). The pleader is not entitled to relief "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct." Id. (citing Fed. R. Civ. P. 8(a)(2)). A court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 678, 129 S. Ct. at 1950 (quotation and citation omitted). And "bare assertions" that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Id. at 681, 129 S. Ct. at 1951 (quotation and citation omitted).

Courts hold a pro se complaint to "less stringent standards than formal pleadings drafted by lawyers" and accordingly construe it "liberally." Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014) (citation omitted). Courts must not, however, "serve as de facto counsel" or "rewrite an otherwise deficient pleading in order to sustain an action." Id. at 1168-69 (quoting GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998)).

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III. Discussion

A. Claim of Denial of Access to the Courts

Powell asserts that Grant has failed to sufficiently state a claim for denial of access to the courts because Grant has failed to allege an actual injury.

Prisoners enjoy "a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1997); Cruz v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 1081 (1972); Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). The precise source of this right currently is unsettled. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 2186 (2002) (describing "the basis of the constitutional right of access to courts" as "unsettled"). The Eleventh Circuit, however, has stated that this right is "grounded in the First Amendment, the Article IV Privileges and Immunities Clause, the Fifth Amendment, and/or the Fourteenth Amendment." Chappell v. Rich, 340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher, 536 U.S. at 415 n.12, 122 S. Ct. at 2186 n.12)); see Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S. Ct. 2161, 2169 (1983) ("[T]he right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances.").

In order to state a claim for a violation of the right of access to the courts, a prisoner must allege that he suffered an actual injury. Cunningham v. Dist. Attorney's Office for Escambia Cty., 592 F.3d 1237, 1271 (11th Cir. 2010) (citing

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Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 2179 (1996)); United States v. Stringer, 546 F. App'x 896, 897 (11th Cir. 2013) ("[T]he denial of access to legal materials does not violate the Fifth Amendment unless the deprivation impedes the prisoner from pursuing a nonfrivolous claim for relief.").3 This requirement "derives ultimately from the doctrine of standing," which requires a plaintiff to show that he "suffered, or will imminently suffer, actual harm" as a result of a defendant's conduct. Lewis, 518 U.S. at 349, 116 S. Ct. at 2179. The injury requirement also "reflects the fact that the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong." Cunningham, 592 F.3d at 1271 (internal quotation marks omitted).

Importantly, "the injury requirement is not satisfied by just any type of frustrated legal claim." Id. A plaintiff must show that he was prejudiced in a criminal appeal or post-conviction matter, or in a civil rights action seeking "to vindicate 'basic constitutional rights.'" Id. (quoting Wolff v. McDonnell, 418 U.S. 539, 579, 94 S. Ct. 2963, 2986 (1974)); see Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th Cir. 1998) (holding that "a prison officials' actions that allegedly violate an inmate's

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