Downey v. Perkins

United States District Court

Middle District of Florida

Jacksonville Division

BRYAN DOWNEY,

Plaintiff,

v. NO. 3:24-cv-508-MMH-LLL

DUVAL COUNTY JAIL, ET AL.,

Defendants.

________________________________________________________________________

Order

Plaintiff, a prisoner proceeding on a pro se complaint for the violation of civil

rights against the Duval County Jail and six officers, doc. 1, moves to amend his

complaint, doc. 12, for appointment of counsel, doc. 13, and for service of the

summons and amended complaint, doc. 14.1 In his motion to amend, doc. 12, plaintiff

explains he seeks to add the following: “another claim of legal mail violations”; a Sixth

Amendment ineffective assistance of counsel claim; and a request for declaratory

judgement. Upon review of the motion to amend and the proposed amended

complaint, doc. 12-1, the Court concludes the motion is due to be denied. Plaintiff’s

1 Plaintiff previously moved to amend his complaint, doc. 10, but he failed to sign the

proposed amended complaint, doc. 10-1. On August 26, 2024, the Court granted plaintiff’s

first motion to amend but directed him to submit a signed amended complaint for docketing.

See Order, doc. 11. Before the Court issued that Order, however, plaintiff submitted a second

motion to amend, doc. 12, with a signed proposed amended complaint, doc. 12-1, which he

mailed on August 23, 2024. Under the mailbox rule, plaintiff filed his second motion to

amend before the Court issued its Order on his first motion to amend. As such, the Court will

vacate the portion of its August 26, 2024 Order granting plaintiff’s first motion to amend.

original complaint, doc. 1, is deficient, and the proposed amended complaint, doc. 12-

1, which incorporates all original claims and allegations, does not cure the deficiencies.

The Federal Rules of Civil Procedure provide in pertinent part, “[a] pleading

that states a claim for relief must contain . . . a short and plain statement of the claim

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and “[a] party

must state [his] claims in numbered paragraphs, each limited as far as practicable to a

single set of circumstances,” Fed. R. Civ. P. 10(b). Additionally, a plaintiff may set

forth only related claims in one civil rights complaint; he may not join unrelated claims

and various defendants unless the claims arise “out of the same transaction,

occurrence, or series of transactions or occurrences” and if “any question of law or fact

common to all defendants will arise in the action.” Fed. R. Civ. P. 20(a)(2). As

recognized by the Eleventh Circuit, “a claim arises out of the same transaction or

occurrence if there is a ‘logical relationship’ between the claims.” Constr. Aggregates,

Ltd. v. Forest Commodities Corp., 147 F. 3d 1334, 1337 n.6 (11th Cir. 1998) (quoting

Republic Health Corp. v. Lifemark Hosps. of Florida, Inc., 755 F.2d 1453, 1455 (11th Cir.

1985)).

A complaint must allege facts that, accepted as true, state a claim “that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard asks for

less than a probability but “more than a sheer possibility that a defendant has acted

unlawfully.” Id. Though a plaintiff is not required to provide “detailed factual

allegations,” he must offer more than “naked assertion[s] devoid of further factual

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enhancement.” Id. (internal quotation marks omitted). He should provide enough

detail to “give the defendant fair notice of what the . . . claim is and the grounds upon

which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in

original). A court must hold a pro se plaintiff to a less stringent standard than a lawyer,

Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998), but may not rewrite

a deficient complaint for a pro se plaintiff or otherwise serve as his de facto counsel,

GJR Invs., Inc. v. Cnty. of Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on

other grounds by Iqbal, 556 U.S. 662.

To state a claim under § 1983, a plaintiff must allege the conduct complained of

was committed by a person acting under color of state law, and the conduct deprived

the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of

the United States. A sheriff’s office or jail is not a legal entity subject to suit under §

1983. Faulkner v. Monroe Cnty. Sheriff’s Dep’t, 523 F. App’x 696, 701 (11th Cir. 2013)

(affirming dismissal of the sheriff’s office because that entity did not have “the capacity

to be sued”).2 To state a claim for a denial of access to the courts, a plaintiff must allege

an “actual injury.” Lewis v. Casey, 518 U.S. 343, 349 (1996); see also 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

2 Unpublished decisions are not binding. See McNamara v. GEICO, 30 F.4th 1055, 1061 (11th

Cir. 2022). Any unpublished decisions cited in this order are deemed persuasive on the

relevant point of law.

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or impeded by . . . an official’s action.” Barbour, 471 F.3d at 1225 (citations omitted).

The Eleventh Circuit has held a prisoner asserting an access-to-courts violation must

allege the defendant’s conduct interfered with a criminal appeal, a petition for habeas

corpus, or a civil rights action. Al-Amin v. Smith, 511 F.3d 1317, 1332 (11th Cir. 2008)

(“[P]rison officials’ actions that allegedly violate an inmate’s right of access to the

courts must have impeded the inmate’s pursuit of a nonfrivolous, post-conviction

claim or civil rights action.” (quoting Wilson v. Blankenship, 163 F.3d 1284, 1290 (11th

Cir. 1998))).

With respect to inmates’ privacy rights, the Supreme Court has held that cell

searches do not violate the Fourth Amendment. Bell v. Wolfish, 441 U.S. 520, 557

(1979) (“No one can rationally doubt that [cell] searches represent an appropriate

security measure.”). Finally, claims challenging criminal proceedings, including

claims of ineffective assistance of trial counsel, are not cognizable in a civil rights

action. Rather, such claims should be pursued through a habeas corpus action after

available state remedies are exhausted. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)

(“[W]hen a state prisoner is challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to

immediate release or a speedier release from that imprisonment, his sole federal

remedy is a writ of habeas corpus.”).

Plaintiff’s original and proposed amended complaints are deficient in the

following ways: Plaintiff seeks to proceed against an entity not amenable to suit under

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§ 1983 (the Jail); he joins multiple, unrelated claims (e.g., separate incidents of

interference with legal mail); and he seeks to proceed on claims that are not cognizable

or plausible as alleged (e.g., a denial of access to courts, invasion of privacy, and

ineffective assistance of counsel). Accordingly, the Court will deny plaintiff’s motion

to amend, doc. 12, but nevertheless will direct him to file an amended complaint if he

wants to proceed with this action. In amending his complaint, plaintiff must comply

with the federal pleading standards discussed in this Order and the following

instructions:

1. The amended complaint must be marked, “Amended Complaint,” and

include this case number (3:24-cv-508-MMH-LLL).

2. The amended complaint must name as defendants only those who had

been acting under color of state law and are responsible for the alleged

constitutional violation(s).

3. The amended complaint must state the full names of each defendant (to

the extent plaintiff knows them) in the style of the case on the first page

and in section I.B.

4. The list of defendants named on the first page must match the list of

named defendants in section I.B.

5. The amended complaint (or a separate filing) must include current

addresses for each defendant so the Court can direct service of process.

6. In section IV, “Statement of Claim,” there must be a clear description of

how each defendant was involved in the alleged violation(s). The

allegations should be stated in numbered paragraphs, each limited to a

single set of circumstances. Plaintiff should separately explain the facts

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giving rise to his individual claims for relief, and he should clearly state

how each defendant is responsible for each alleged violation.3

7. In section V, “Injuries,” there must be a statement concerning how each

defendant’s action(s) or omission(s) injured plaintiff.

8. In section VI, “Relief,” there must be a statement of what plaintiff seeks

through this action, keeping in mind that the Prison Litigation Reform

Act “places substantial restrictions on the judicial relief that prisoners can

seek . . . .” Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015)

(quoting Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011)).

9. In section VII, “Exhaustion,” plaintiff must explain the steps he took to

exhaust his administrative remedies, keeping in mind that “[a] prisoner

[or detainee] must exhaust each claim that he seeks to present in court.”

Arias v. Perez, 758 F. App’x 878, 881 (11th Cir. 2019) (citing Jones v. Bock,

549 U.S. 199, 219–20 (2007)).

Plaintiff must sign and date the amended complaint after the following

statement on the form:

Under Federal Rule of Civil Procedure 11, by signing

below, I certify to the best of my knowledge, information,

and belief that this complaint: (1) is not being presented for

an improper purpose, such as to harass, cause unnecessary

delay, or needlessly increase the cost of litigation; (2) is

supported by existing law or by a nonfrivolous argument for

extending, modifying, or reversing existing law; (3) the

factual contentions have evidentiary support or, if

specifically so identified, will likely have evidentiary

support after a reasonable opportunity for further

investigation or discovery; and (4) the complaint otherwise

complies with the requirements of Rule 11.

3 Plaintiff may attach additional pages, if necessary, but he should continue to number the

paragraphs for a clear presentation of his factual allegations supporting each claim.

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Before signing the amended complaint, plaintiff must ensure his assertions are

truthful and that he has not knowingly made false material declarations. He must

neither exaggerate nor distort the facts but truthfully state the facts underlying his

claims. Knowingly making a false material declaration in violation of 18 U.S.C. § 1623

is punishable by a fine, imprisonment, or both. An amended complaint supersedes the

filing of the initial complaint and becomes the operative pleading. Krinsk v. SunTrust

Banks, Inc., 654 F.3d 1194, 1202 (11th Cir. 2011). Thus, plaintiff’s amended complaint

must be complete, including all related claims he wishes to raise, and must not refer

back to his original complaint.

The Court also will deny plaintiff’s motions requesting service of process and

appointment of counsel, docs. 13, 14. First, the request for service of process is moot

given plaintiff has not filed a sufficient complaint. Second, a plaintiff in a civil case has

no constitutional right to counsel, and courts have broad discretion in deciding

whether to appoint counsel. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). A

court should appoint counsel in a civil case only in “exceptional circumstances.” Id.

In determining whether to appoint counsel, a court may consider the type and

complexity of the case, whether the plaintiff can adequately investigate and present his

case, and whether the case will require skill in presenting evidence and in conducting

cross-examination. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (cited with

approval in Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1065 n.11 (11th Cir. 2013)).

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This case does not appear more complex than most civil rights cases litigated by

prisoners who are untrained in the law and have limited resources available to them.

Moreover, plaintiff’s filings indicate he can present his positions and litigate on his

own behalf. The Court may sua sponte reconsider plaintiff’s request for appointment of

counsel if the circumstances of the case change (for example, if the case proceeds to a

settlement conference or trial).

It is ordered:

1. The Clerk shall send plaintiff a Civil Rights Complaint form.

2. The Court denies plaintiff’s motion to amend, doc. 12.

3. Plaintiff must file an amended complaint in compliance with this Order

and the instructions on the Civil Rights Complaint form by November 1, 2024.

Plaintiff’s failure to comply with this Order may result in the dismissal of this case.

4. The Court denies without prejudice plaintiff’s motion for appointment

of counsel, doc. 13.

5. The Court denies as moot plaintiff’s motion for service of summons and

complaint, doc. 14.

6. The Court vacates the portion of its Order granting plaintiff’s first motion

to amend, doc. 10. See Order, doc. 11 (¶¶ 2–4).

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Ordered in Jacksonville, Florida on October 4, 2024.

LAURA LOTHMAN LAMBERT

United States Magistrate Judge

Bryan Downey, #Y72316, pro se

Lake Correctional Institution

19225 U.S. Highway 27

Clermont, FL 34715-9025