Heaven v. Davis

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

TERRENCE L. HEAVEN,

Plaintiff,

v.

Case No. 3:21-cv-710-MMH-MCR

FLORIDA DEPARTMENT

OF CORRECTIONS, et al.,

Defendants.

ORDER

Plaintiff Terrence L. Heaven, an inmate of the Florida penal system,

initiated this action on July 19, 2021, by filing a pro se Complaint for Violation

of Civil Rights (Complaint; Doc. 1).1 In the Complaint, Heaven names the

following Defendants: (1) the Florida Department of Corrections (FDOC); (2)

Warden Don Davis; (3) Assistant Warden Jeffrey McClellan; (4) Lieutenant

(retired) D. Cauwenberghs; (5) Sergeant T. Alexander; (6) FDOC Secretary

Mark Inch; (7) Sergeant W. Rogers; (8) L. Thompson, a grievance coordinator;

1 For all referenced documents, the Court cites to the document and page

numbers as assigned by the Court’s Electronic Case Filing System.

and (9) Armbrust, a legal mail officer. He asserts that Defendants violated his

federal constitutional rights when they engaged in criminal activity and

terrorized him from August 14, 2019, through April 23, 2020, when he was

housed on maximum management at Florida State Prison (FSP) as a

retaliatory measure for filing grievances. As relief, he seeks “justice” against

Defendants and FSP officers “who commit crimes against the inmate

population daily without any worry of accountability.” Complaint at 16.

The Prison Litigation Reform Act requires the Court to dismiss this 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.2 See 28 U.S.C. §§

1915(e)(2)(B); 1915A. “A claim is frivolous if it is without arguable merit either

in law or fact.” Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001) (citing

Battle v. Cent. State Hosp., 898 F.2d 126, 129 (11th Cir. 1990)). A complaint

filed in forma pauperis which fails to state a claim under Federal Rule of Civil

Procedure 12(b)(6) is not automatically frivolous. Neitzke v. Williams, 490 U.S.

319, 328 (1989). Section 1915(e)(2)(B)(i) dismissals should only be ordered

2 Heaven has neither paid the filing fee nor filed an application to

proceed as a pauper. As such, for purposes of the Court’s required screening,

the Court will assume Heaven intends to proceed as a pauper.

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when the legal theories are “indisputably meritless,” id. at 327, or when the

claims rely on factual allegations which are “clearly baseless.” Denton v.

Hernandez, 504 U.S. 25, 32 (1992). “Frivolous claims include claims ‘describing

fantastic or delusional scenarios, claims with which federal district judges are

all too familiar.’” Bilal, 251 F.3d at 1349 (quoting Neitzke, 490 U.S. at 328).

Additionally, a claim may be dismissed as frivolous when it appears that a

plaintiff has little or no chance of success. Id. As to whether a complaint “fails

to state a claim on which relief may be granted,” the language of the Prison

Litigation Reform Act mirrors the language of Rule 12(b)(6), Federal Rules of

Civil Procedure, and therefore courts apply the same standard in both

contexts.3 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 state a claim under 42 U.S.C. § 1983, a plaintiff must allege that (1)

the defendant deprived him of a right secured under the United States

3 “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 (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 suffice. 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).

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Constitution or federal law, and (2) such deprivation occurred under color of

state law. Salvato v. Miley, 790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v.

Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);

Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per curiam)

(citations omitted). Moreover, the Eleventh Circuit “requires proof of an

affirmative causal connection between the official’s acts or omissions and the

alleged constitutional deprivation” in § 1983 cases. Zatler v. Wainwright, 802

F.2d 397, 401 (11th Cir. 1986) (citation omitted). More than conclusory and

vague allegations are required to state a cause of action under 42 U.S.C. § 1983.

See L.S.T., Inc., v. Crow, 49 F.3d 679, 684 (11th Cir. 1995) (per curiam);

Fullman v. Graddick, 739 F.2d 553, 556 57 (11th Cir. 1984). As such,

“‘conclusory allegations, unwarranted deductions of facts, or legal conclusions

masquerading as facts will not prevent dismissal.’” Rehberger v. Henry Cnty.,

Ga., 577 F. App’x 937, 938 (11th Cir. 2014) (per curiam) (citation omitted). In

the absence of well-pled facts suggesting a federal constitutional deprivation

or violation of a federal right, a plaintiff cannot sustain a cause of action

against the defendant.

In assessing the Complaint, the Court must read Plaintiff’s pro se

allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

Bingham, 654 F.3d at 1175. And, while “[p]ro se pleadings are held to a less

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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), “‘this leniency does not give the court a license to serve as de facto

counsel for a party or to rewrite an otherwise deficient pleading in order to

sustain an action.’” Alford v. Consol. Gov’t of Columbus, Ga., 438 F. App’x 837,

839 (11th Cir. 2011) (quoting GJR Invs., Inc. v. Cnty. of Escambia, Fla., 132

F.3d 1359, 1369 (11th Cir. 1998) (internal citation omitted), overruled in part

on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir.

2010)); Freeman v. Sec’y, Dept. of Corr., 679 F. App’x 982, 982 (11th Cir. 2017).

To the extent Heaven asserts any claims against the FDOC, state and

governmental entities that are considered “arms of the state” are not “persons”

subject to liability for purposes of 42 U.S.C § 1983 action. Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 70 (1989). The FDOC is an arm of the

executive branch of state government, see Fla. Stat. § 20.315, and thus is not

a person for purposes of § 1983 litigation.

According to Heaven, Defendants and other FSP officers engage in

criminal activity against inmates “daily without any worry of accountability.”

Complaint at 16. Insofar as Heaven complains that other inmates suffered the

same injustices that he experienced as a result of Defendants’ actions, the

general provision permitting parties to proceed pro se, see 28 U.S.C. § 1654,

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provides “a personal right that does not extend to the representation of the

interests of others.” Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008);

Johnson v. Brown, 581 F. App’x 777, 781 (11th Cir. 2014). Plaintiff may

represent his own interests. However, he may not represent other inmates’

interests.

Additionally, a complaint must include a short and plain statement of

the claim showing that the plaintiff is entitled to relief. Fed. R. Civil P. 8(a)(2).

While not required to include detailed factual allegations, a complaint must

allege “more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, a complaint is

insufficient “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557

(2007)). A plaintiff must allege sufficient facts “that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

Plaintiff’s Complaint is subject to dismissal under this Court’s screening

obligation because he fails to state a claim to relief that is plausible on its face.

It is well-established that inmates have a constitutional right of access to the

courts. Bounds v. Smith, 430 U.S. 817, 821 (1977); see Chappell v. Rich, 340

F.3d 1279, 1282 (11th Cir. 2003). To state a claim for denial of access to the

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courts, a plaintiff must allege an actual injury. Lewis v. Casey, 518 U.S. 343,

349-50 (1996); Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). “Actual

injury may be established by demonstrating that an inmate’s efforts to pursue

a nonfrivolous claim were frustrated or impeded by . . . an official’s action.”

Barbour, 471 F.3d at 1225 (citations omitted). Therefore, “the plaintiff must

identify within his complaint, a ‘nonfrivolous, arguable underlying claim.’” Id.

at 1226 (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)).

Additionally, the plaintiff must show that the underlying nonfrivolous claim

was raised, or would have been raised, in connection with a direct appeal, a

collateral attack on his conviction, or a civil rights action. Lewis, 518 U.S. at

354 57; Cranford v. Nev. Dep’t of Corr., 398 F. App’x 540, 546-47 (11th Cir.

2010).

Here, Heaven fails to assert that Defendants’ conduct resulted in an

“actual injury,” as defined by the Eleventh Circuit. He has not provided any

facts suggesting that Defendants’ conduct frustrated or impeded his ability to

pursue a nonfrivolous claim in connection with a direct appeal, a collateral

attack on his conviction, or in a civil rights action. As to any complaints about

unprofessional or negligent conduct by Defendants in failing to timely provide

his property, the law is well-settled that the Constitution is not implicated by

the negligent acts of corrections officials. See Daniels v. Williams, 474 U.S. 327,

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330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348 (1986) (“As we held in

Daniels, the protections of the Due Process Clause, whether procedural or

substantive, are just not triggered by lack of due care by prison officials.”).

To the extent Heaven complains that some of his property is missing, he

does not allege any facts suggesting how the institution failed to provide him

with due process. Regardless, the Due Process Clause is not offended when a

state employee intentionally deprives an individual of his property if the State

provides him with a meaningful post-deprivation remedy. See Hudson v.

Palmer, 468 U.S. 517, 533 (1984); Jackson v. Hill, 569 F. App’x 697, 698 (11th

Cir. 2014) (per curiam); Taylor v. McSwain, 335 F. App’x 32, 34 (11th Cir.

2009). For a deprivation of property, Heaven has an available, adequate post-

deprivation remedy under state law. “Under Florida law, [a plaintiff] can sue

the officer[] for the conversion of his personal property.” Jackson, 569 F. App’x

at 698 (citing Case v. Eslinger, 555 F.3d 1317, 1331 (11th Cir. 2009)).

According to Heaven, Defendants engaged in criminal activity, including

property theft, mail fraud, forgery, aiding and abetting others in criminal acts,

and being accessories after-the-fact to crimes associated with a campaign of

harassment. Insofar as Heaven is requesting that this Court criminally charge

Defendants for subjecting him and his fellow inmates to alleged injustices, this

Court has no authority to file criminal charges or to direct that charges be filed.

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Finally, to the extent Heaven requests that this Court reprimand the

Defendants and/or terminate their employment, this Court does not have the

authority to reprimand state employees and/or terminate their employment.

Additionally, Heaven describes an environment where officers bugged

his cell and whispered threats, which ultimately resulted in nightmares and

mental instability. See Complaint at 15-17. According to Heaven, he felt as if

Defendants and their fellow officers “were hunting down and murdering [his]

family.” Id. As to any alleged verbal abuse (including threatening or demeaning

comments) or insulting gestures on the part of Defendants, such allegations do

not state a claim of federal constitutional dimension. Hernandez v. Fla. Dep’t

of Corr., 281 F. App’x 862, 866 (11th Cir. 2008) (per curiam). To the extent

Heaven alleges that Defendants belittled him, verbal taunts without more do

not deprive an inmate of his federal constitutional rights. See Paylan v. Dirks,

847 F. App’x 595, 601 (11th Cir. 2021) (citation omitted). Nor can Heaven’s

assessment of comments made about Heaven’s father’s death support an

inference of deliberate indifference. See Bismark v. Fisher, 213 F. App'x 892,

897 (11th Cir. 2007) (“It is not a violation of the Eighth Amendment for a prison

physician to consult with a prisoner concerning a medical condition in an aloof

or unfriendly way. Much more is required.”) (citation and footnote omitted). As

to Heaven’s interest in addressing any ongoing violations related to his mental

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health, including any paranoia, he may contact his classification officer to

inquire about any concerns he may have about access to sick call and/or

physicians, including mental health professionals, to evaluate his mental

health condition and determine if he needs any remedial treatments.

In light of the foregoing, this case will be dismissed, pursuant to 28

U.S.C. § 1915(e)(2)(B), without prejudice to Heaven’s right to refile his claims

under 42 U.S.C. § l983 with factual allegations sufficient to support a claim

under § 1983 against the proper Defendants, if he elects to do so. Notably, pro

se litigants are subject to the same law and rules of court that govern other

litigants who are represented by counsel. See Moon v. Newsome, 863 F.2d 835,

837 (11th Cir. 1989). All filings with the Court must be made in accordance

with the Federal Rules of Civil Procedure and the Local Rules of the United

States District Court for the Middle District of Florida. The Clerk of Court will

be directed to provide a civil rights complaint form and Affidavit of Indigency

form to Heaven. If Heaven chooses to refile a civil rights complaint in this

Court to address any alleged federal constitutional violations, he must submit

a fully completed civil rights complaint form with an original signature and

must submit a copy of the form for each Defendant for service of process.

Heaven either must pay the $402.00 filing fee or file a fully completed Affidavit

of Indigency form.

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Accordingly, it is now

ORDERED AND ADJUDGED:

1. This case is hereby DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B).

2. The Clerk shall enter judgment dismissing this case without

prejudice, terminating any pending motions, and closing the case.

3. The Clerk shall send a civil rights complaint form and an Affidavit

of Indigency form to Plaintiff. If he elects to refile his claims, he may complete

and submit the proper forms. Plaintiff should not place this case number on

the forms. The Clerk will assign a separate case number if Plaintiff elects to

refile his claims. In initiating such a case, Plaintiff should either file a fully

completed Affidavit of Indigency Gf he desires to proceed as a pauper) or pay

the $402.00 filing fee Gf he does not desire to proceed as a pauper).

DONE AND ORDERED at Jacksonville, Florida, this 26th day of July,

2021.

United States District Judge

Jax-1 7/23

C:

Terrence L. Heaven, FDOC # 621304

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