# Ash v. Daniel

> District Court, M.D. Florida · May 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10105211

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** May 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10105211

## How later opinions describe it (automated extraction)

- holding that district court did not err in taking judicial notice of the plaintiff’s state court docket when dismissing § 1983 action
- stating that when counsel is offered, the alternative of other legal assistance is not mandatory, citing Bounds, 430 U.S. at 828

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ISAAIH XAVIZER ASH,

Plaintiff,

v. Case No. 3:20-cv-229-J-32JRK

SGT. DANIEL et al.,

Defendant.

ORDER
I. Status
Plaintiff, a pretrial detainee at the Columbia County Jail,1 initiated this
action by filing a pro se Civil Rights Complaint. Doc. 1. He has also filed a
motion to proceed as a pauper.2 Doc. 2. In the Complaint, Plaintiff alleged that
on February 23, 2020, officers ordered “the pod” to get on their assigned bunks.
Doc. 1 at 5. Plaintiff stated that he then put a “sheet around [his] face because

1 Plaintiff is currently in pretrial custody for a pending state court
criminal case in which the state is prosecuting Plaintiff for attempted armed
robbery while masked. See State v. Ash, No. 12-2019-CF-000796 (Fla. 3d Cir.
Ct.).

2 Plaintiff’s request to proceed in forma pauperis (Doc. 2) is incomplete.
As such, the Court directed Plaintiff, by May 1, 2020, to provide a completed
request or pay the $400 filing fee. See Doc. 4. As of the date of this Order,
Plaintiff has not complied with that directive.
[he has] bad asthma and officers threaten[ed] to spray.”3 Id. Because Plaintiff
had a sheet around his face, see id., and “for disobeying a verbal order,” see id.
at 7, officers took Plaintiff out of his dorm and put him in confinement. Id. He
claimed that while he was being moved to confinement, Defendant Daniel

threatened to gas Plaintiff and made derogatory and offensive remarks.
According to Plaintiff, while housed in confinement, Defendants Daniel
and Geiger, along with Officers Brown and Gainey (who are not named as
defendants), searched Plaintiff’s cell and illegally seized his “legal paperwork

and legal . . . documents out of [his] motion of discovery,” hindering his ability
to represent himself in state court. Id. He also argued that they took his towel,
rag, soap, toothbrush, and toothpaste, which subjected him to cruel and unusual
punishment. Id. Finally, he averred that they confiscated his Bible and his

“Civilizations of Africa” book that he uses for his Islamic study, violating his
“freedom of religious belief.” Id. He asserted that he requested that the officers
return his belongings, to which they responded that they are “reviewing
cameras”; however, Plaintiff believes the property was thrown away. Id. at 9.

On April 8, 2020, the Court dismissed without prejudice Plaintiff’s claims
regarding freedom of religion, conditions of confinement, and return of personal

3 Plaintiff does not allege that the officers used chemical agents on him or
any other inmate.
2
property, as well as any claims regarding threatening comments. Doc. 4. The
Court, however, construed Plaintiff’s allegations regarding the seizure of his
legal material and discovery documents as a First Amendment access to courts
claim. Id. at 10. The Court advised Plaintiff that he may file an amended

complaint only as to his access to courts allegation. Id. Plaintiff has filed his
Amended Complaint. Doc. 5. For the reason stated below, Plaintiff’s access to
courts claim, as alleged in his Amended Complaint, is due to be dismissed.
II. Standard of Review

The Prison Litigation Reform Act requires the Court to dismiss a case at
any time if the Court determines that the action is frivolous, malicious, fails to
state a claim upon which relief can be granted, or seeks monetary relief against
a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). The

Court liberally construes the pro se plaintiff’s allegations. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Bingham v. Thomas, 654 F.3d 1171, 1175 (11th
Cir. 2011).
With respect to whether a complaint “fails to state a claim on which relief

may be granted,” § 1915(e)(2)(B)(ii) mirrors the language of Federal Rule of
Civil Procedure 12(b)(6), so courts apply the same standard in both contexts.
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997); see also Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). “To survive a motion to dismiss,

3
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
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Labels
and conclusions” or “a formulaic recitation of the elements of a cause of action”

that amount to “naked assertions” will not do. Id. (quotations, alteration, and
citation omitted). Moreover, a complaint must “contain either direct or
inferential allegations respecting all the material elements necessary to sustain
a recovery under some viable legal theory.” Roe v. Aware Woman Ctr. for

Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quotations and citations
omitted).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a
person acting under color of state law deprived him of a right secured under the

Constitution or laws of the United States. See Salvato v. Miley, 790 F.3d 1286,
1295 (11th Cir. 2015); Harvey v. Harvey, 949 F.2d 1127, 1130 (11th Cir. 1992).
Moreover, “conclusory allegations, unwarranted deductions of facts, or legal
conclusions masquerading as facts will not prevent dismissal.” Rehberger v.

Henry Cty., Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (per curiam) (quotations
and citation omitted). In the absence of a federal constitutional deprivation or
violation of a federal right, a plaintiff cannot sustain a cause of action against
a defendant.

4
III. Analysis
In his Amended Complaint, Plaintiff generally realleges the same facts
as those set forth in his Complaint. However, he now claims that when he was
moved to confinement on February 23, 2020, all three Defendants (Daniel,

Geiger, and Dampeire) searched Plaintiff’s cell and “purposely knowing
[Plaintiff is] pro se and represent[ing] [himself] they deprived [him] of [his] legal
work[,] legal documents[,] pre-wrote motions[,] and took witnesses[’] statements
out of [his] motion of discovery.” Doc. 5 at 5. He also claims for the first time

that Defendants violated his right to access to courts, “because [he is] a young
black man only 18 thinking [Plaintiff] [doesn’t] know [his] rights.”4 He argues
that he has “suffered psychological trauma due to these events and still cannot
represent [himself] properly.” Id. at 6. He requests monetary damages and the

appointment of a “paid for attorney” to diligently represent him in his criminal
case. Id.

4 To the extent Plaintiff is attempting to allege an equal protection
violation, such claim is insufficiently pled. See Jones v. Ray, 279 F.3d 944, 946-
47 (11th Cir. 2001) (quoting Damiano v. Fla. Parole & Prob. Comm’n, 785 F.2d
929, 932-33 (11th Cir. 1986) (“To establish an equal protection claim, a prisoner
must demonstrate that (1) ‘he is similarly situated with other prisoners who
received’ more favorable treatment; and (2) his discriminatory treatment was
based on some constitutionally protected interest such as race.”)).

5
While Plaintiff has always alleged that he is proceeding pro se in his state
court criminal proceeding, his original Complaint did not clarify if Plaintiff had
been offered court-appointed representation and if he voluntarily declined that
assistance. As such, in its Order directing Plaintiff to file an amended

complaint, the Court directed Plaintiff to explain the circumstances of his
criminal representation. Doc. 4. In conformance with the Court’s instruction,
Plaintiff alleged the following in his Amended Complaint:
The state appointed me counsel Kimberly Mears
which we had a[n] irreconcilable conflict[.] [S]he was
also ineffective[.] I filed a motion and had a Nelson
inquiry which the Judge gave two solutions because he
denied [m]y ineffective assistance of counsel [claim,]
saying he didn’t see grounds[.] Judge Brian [said] my
solutions were keep a[n] ineffective attorney public
defender or represent myself so the outcome was I
became pro se.

Doc. 5 at 13.
Plaintiff’s allegation that he was offered court-appointed counsel and
made the decision to proceed without an attorney is supported by his state court
criminal docket.5 See Ash, No. 12-2019-CF-000796. It shows that soon after

5 The Court takes judicial notice of Plaintiff’s state court docket. See
McDowell Bey v. Vega, 588 F. App’x 923, 927 (11th Cir. 2014) (holding that
district court did not err in taking judicial notice of the plaintiff’s state court
docket when dismissing § 1983 action); see also Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006) (“docket sheets are public records of which the court
could take judicial notice.”).
6
Plaintiff’s arrest, the state court appointed defense counsel for Plaintiff;
however, it appears that on or about January 28, 2020, Plaintiff requested the
state court to conduct a Nelson6 inquiry and discharge his court-appointed
counsel. Id. On February 5, 2020, after conducting the Nelson hearing, the trial

court granted Plaintiff’s request to discharge his attorney and allowed Plaintiff
to proceed pro se. Id.
Prisoners have a constitutional right of access to the courts. Bounds v.
Smith, 430 U.S. 817, 828 (1977). That right may be met “by providing prisoners

with adequate law libraries or adequate assistance from persons trained in the
law.” Id. at 828. When interpreting the right of access to courts outlined in
Bounds, the Eleventh Circuit has held that access to additional legal material
is not mandatory where legal counsel is provided as an alternative. Smith v.

Hutchins, 426 F. App’x 785, 789 (11th Cir. 2011) (citing Hooks v. Wainwright,
775 F.2d 1433, 1435 (11th Cir. 1985) (“concluding state need not provide
prisoners assistance of counsel in addition to libraries for purpose of filing

6 See Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). If a defendant
expresses a desire to discharge court appointed counsel because of counsel’s
ineffectiveness, the trial court will hold a Nelson hearing to determine whether
there is reasonable cause to believe that the court appointed counsel is not
rendering effective assistance to the defendant. Id. If the trial court finds that
counsel is acting ineffectively, the trial judge will appoint substitute counsel.
Id. If no such finding is made, the trial judge is to advise defendant that if he
discharges his original counsel, the state may not thereafter be required to
appoint a different attorney. Id.
7
collateral suits, stating, ‘it is noteworthy that Bounds refers to law libraries or
other forms of legal assistance, in the disjunctive, no fewer than five times.’”)).
Further, “[b]ecause Bounds addressed only the issue of access to courts in the
context of inmates filing civil actions or habeas petitions for post-conviction

relief, some courts have held that Bounds has no applicability to defendants
representing themselves in criminal proceedings.”7 Smith, 426 F. App’x at 789
n.5. Rather, where a pretrial detainee claims that his lack of access to legal
material has hindered his ability to represent himself in a pending criminal

7 In United States v. Chatman, 584 F.2d 1358 (4th Cir. 1978), the court
explained that the right of access to courts for pretrial detainees seeking
assistance with a pending criminal action is based on the Sixth Amendment
right to counsel. Id. at 1360. The court explained the following:

[Bounds] held that “the fundamental constitutional right of access
to the courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers by providing
prisoners with adequate law libraries or adequate assistance from
persons trained in the law.” 430 U.S. at 828. Bounds, of course, has
no direct application to defendant. He was accused of [a] crime and
had an absolute right to counsel, which he validly waived; he had
no present thought of pursuing post-conviction relief. But, even so,
we do not read Bounds to give an option to the [p]risoner as to the
form in which he elects to obtain legal assistance. The option rests
with the government which has the obligation to provide assistance
as to the form which that assistance will take. Thus, to the extent
that it may be said that Bounds has any application to the instant
case, the United States satisfied its obligation under the Sixth
Amendment when it offered defendant the assistance of counsel
which he declined. We so hold. Cf. United States v. West, 557 F.2d
151 (8th Cir. 1977).
8
proceeding, the constitutional right of access to courts may be satisfied if the
plaintiff has been provided the option of legal counsel and his decision to
represent himself was voluntarily made. Id. at 789 (citing Edwards v. United
States, 795 F.2d 958, 961, n. 1, 3 (11th Cir. 1986) (stating that when counsel is

offered, the alternative of other legal assistance is not mandatory, citing
Bounds, 430 U.S. at 828); see also Degrate v. Godwin, 84 F.3d 768, 769 (5th Cir.
1996) (agreeing with circuits holding that a defendant who rejects court
appointed counsel has no constitutional right to access a law library in

preparing a pro se defense at trial); Daker v. Warren, 660 F. App’x 737, 740
(11th Cir. 2016) (reiterating that under Eleventh Circuit precedent access to a
law library is not mandatory for a pro se defendant when counsel has been
offered); Singleton v. FS No. 7084, No. 3:11-cv-70-J-12TEM, 2011 WL 617942,

*3 (M.D. Fla. Feb. 15, 2011) (holding there is no constitutional right to access
legal materials in preparing a pro se defense in a criminal case where counsel
has been offered and the plaintiff has elected to represent himself).
Here, the Court need not decide whether Bounds applies to pretrial

detainees or whether Plaintiff has a right to access additional legal material,
because the requirements of Bounds are satisfied if Plaintiff has the option to
receive assistance from court-appointed counsel, but he is voluntarily
proceeding pro se. See Smith, 426 F. App’x at 790 n.5 (“Regardless of whether

9
Bounds applies to pretrial detainees, we conclude in this case Bounds does not
require access to a law library where Smith had the option of assistance of
appointed counsel.”). The claims in his Amended Complaint demonstrate that
Plaintiff has the option to be represented by court-appointed counsel, but he has

voluntarily and knowingly declined that assistance so he could represent
himself. While he appears to claim that he agreed to proceed pro se because his
only other option was to be represented by an incompetent attorney, Plaintiff
admits that the trial court conducted an inquiry into counsel’s effectiveness

under the purviews of Nelson and determined that she was providing adequate
representation. After the trial court found her to be acting effectively, Plaintiff
states he made the decision to proceed pro se. Indeed, a review of his state court
docket demonstrates that Plaintiff has been actively representing himself by

filing numerous pro se motions. See Ash, No. 12-2019-CF-000796.
Now, after voluntarily declining court-appointed counsel who has access
to legal material, and electing to represent himself, Plaintiff complains about
the difficulty of obtaining and securing legal documents while being housed in

a pretrial detention facility. These facts do not sufficiently set forth a
constitutional claim. Even if he has previously given up his right to counsel,
Plaintiff may request reappointment of his prior attorney to represent him in
his criminal case by filing a motion with the state court or voicing his concerns

10
at a scheduled hearing. This open and standing offer by the state satisfies
Plaintiffs First Amendment right of access to courts. See Smith, 426 F. App’x
at 789-90, 790 n.5 (“[b]ecause Smith voluntarily and intelligently waived his
right to counsel, Smith had no constitutional right to access . . . other legal
resources during his pre-trial detention” and the option of appointed counsel
satisfied the requirements of Bounds); Singleton, 2011 WL 617942 at *3 (“the
offer of court-appointed counsel satisfies the state’s obligation to provide
meaningful access to the courts.”).
Accordingly, it is
ORDERED AND ADJUDGED:
1. This case is DISMISSED without prejudice.
2. The Clerk of the Court shall enter judgment dismissing this case
without prejudice and close the case.
DONE AND ORDERED at Jacksonville, Florida, this 26th day of May,
2020.

TIMOTHY J. CORRIGAN
United States District Judge
Jax-7
C: Isaaih X. Ash, #CCSO19JBN002909
11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10105211. Public record. Not legal advice.