“Hudson made clear that as long as some adequate post-deprivation remedy is available, no due process violation has occurred.” (emphasis in original)
How later courts described this case
- “Hudson made clear that as long as some adequate post-deprivation remedy is available, no due process violation has occurred.” (emphasis in original)
- showing a defendant who falsely subscribed to statements in a habeas petition resulted in a perjury prosecution
- explaining that dismissal of the action may be severe but warranted when the grounds for dismissal were previously notified
- “The allegation that prison officials seized Wright’s pleadings and law book and destroyed other legal papers clearly states a claim of denial of access to the courts. Prison officials may not deny or obstruct an inmate’s access to the courts.” (citation omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-CV-14134-RAR
PHILLIP S. WRIGHT, JR.,
Plaintiff,
v.
CAPTAIN A. ZAVELGHOUN, et al.,
Defendants.
_____________________________________/
ORDER TO AMEND
THIS CAUSE comes before the Court on Plaintiff Phillip S. Wright’s pro se Complaint
for Violation of Civil Rights, [ECF No. 1], and Application to Proceed in District Court Without
Prepaying Fees or Costs, [ECF No. 3]. Plaintiff, who is incarcerated at Florida State Prison in
Raiford, Florida, alleges that Defendants—three state correctional officers—deprived him of his
legal paperwork from November 29, 2024, to March 4, 2025. See Compl. at 4. As a result, Plaintiff
missed his deadline to file a petition in the United States Supreme Court for a writ of certiorari in
his criminal case. See id. at 5. In the Complaint, Plaintiff now seeks compensatory and punitive
damages, claiming that Defendants violated his First Amendment right of access to court and his
Fourteenth Amendment due process rights. See id. at 4–5. After careful review, the Court finds
that the Complaint must be DISMISSED without prejudice for failure to state a claim upon which
relief can be granted, but Plaintiff is afforded one opportunity to amend.
BACKGROUND
Plaintiff purports to bring his claims under 42 U.S.C. § 1983. See Compl. at 3. His
allegations are as follows. On November 29, 2024, Plaintiff was incarcerated at Okeechobee
Correctional Institution in Okeechobee, Florida. See id. at 6. Though Plaintiff was not subject to
a property restriction, he “was not given his property, which contained his legal work.” Id. On or
around December 2, 2024, Plaintiff received an order from the United States Court of Appeals for
the Eleventh Circuit “denying his Motion for Reconsideration” in his criminal case. Id. On
December 3, 2024, Plaintiff filed an informal grievance with Okeechobee C.I. correctional officers
expressing “his need for his property” to, among other things, seek certiorari review in the U.S.
Supreme Court. Id.
An officer returned Plaintiff’s grievance, explaining to Plaintiff that he had failed to
comply with the prison’s grievance procedures. See id. Plaintiff was directed “to submit an Inmate
Request” to the Property Sergeant for proper resolution of his issue. Id. Plaintiff appealed the
return of his grievance to the Warden. See id. On December 13, 2024, Defendant Colonel T.
Hawkins returned Plaintiff’s appeal and stated, as the previous officer had explained, that Plaintiff
“was required to submit a request in writing using the Inmate Request form and send it to the
appropriate department for review and processing[.]” Id. at 7 (alteration added). The response
was signed by Defendant Assistant Warden J. Holtz.
On December 15, 2024, Plaintiff submitted an Inmate Request to the Property Sergeant,
“requesting to be given his property as soon as possible” and referencing his “court proceedings
and deadlines.” Id. Four days later, when asked by Defendant Hawkins if “everything [was] all
right,” Plaintiff responded negatively, as “he had not received his property yet.” Id. (alteration
added). Defendant Hawkins responded, “You should not have showed your ass[,]” and walked
away. Id. (alteration added). On December 26, 2024, Plaintiff filed a grievance with the Secretary
of the Florida Department of Corrections, explaining that Hawkins’s comment “was proof that the
Institution was deliberately depriving [Plaintiff] of his property.” Id. (alteration added).
Plaintiff filed another grievance on December 27, 2024, explaining that he “had not
received a response” to his Inmate Request. Id. at 8. On January 1, 2025, Defendant Captain A.
Zavelghoun denied his grievance, writing that prison staff had already recovered and returned
Plaintiff’s inventoried property. See id. Plaintiff appealed Defendant Zavelghoun’s response on
January 9, 2025 to the Warden, “stating that the response given did not address his problem[.]”
Id. (alteration added). On January 21, 2025, Defendant Hawkins “responded to and approved”
Plaintiff’s grievance, stating that Plaintiff’s request “ha[d] been forward[ed] to the library to have
[his] stored legal documentation brought to [him].” Id. at 9 (cleaned up). Defendant Holtz signed
the response. See id. Later that month, Plaintiff confronted both Defendants Holtz and Hawkins
about his still-missing paperwork. See id. Plaintiff’s time to seek certiorari review expired in early
March 2025, when he still had not received his legal papers—even upon Plaintiff’s March 4, 2025
transfer from Okeechobee C.I. to Florida State Prison, Main Unit. See id.
LEGAL STANDARDS
The Court “shall review . . . a complaint in a civil action in which a prisoner seeks redress
from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A
(emphasis added). The definition of a “prisoner” includes “any person incarcerated or detained in
any facility who is . . . accused of [or] convicted of . . . violations of criminal law.” Id. §
1915A(c). In conducting its screening of a prisoner’s complaint, the Court must “dismiss the
complaint[] or any portion of the complaint,” when it is (1) “frivolous, malicious, or fails to state
a claim upon which relief may be granted[;]” or (2) “seeks monetary relief from a defendant who
is immune from such relief.” Id. § 1915A(b). Similarly, if a plaintiff wishes to proceed in forma
pauperis rather than prepaying the filing fee, § 1915(e)(2) requires the court to “dismiss [a] case
at any time if the court determines that . . . the action” fails for the same enumerated reasons
articulated under § 1915A. Id. § 1915(e)(2)(B) (emphasis added).
To state a claim upon which relief may be granted, a complaint’s factual allegations “must
be enough to raise a right to relief above the speculative level”—with “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
Under this standard, legal conclusions “are not entitled to the assumption of truth” and are
insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Moreover, “[w]here 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. at 678 (internal quotation
marks omitted).
Although the Court must hold the allegations in a pro se civil rights complaint “to a less
stringent standard than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520
(1972), pro se litigants are still required to comply with the Federal Rules of Civil Procedure and
the Local Rules of the Southern District of Florida, see Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989) (“[A pro se litigant] is subject to the relevant law and rules of court, including the
Federal Rules of Civil Procedure.”); see also S.D. FLA. L.R. 1.1 (explaining the Local Rules apply
in all proceedings unless otherwise indicated and that the word “counsel” shall apply to a party
that is proceeding pro se). The Federal Rules of Civil Procedure require, in pertinent part, that a
pleading that states a claim for relief contain “a short and plain statement of the grounds for a
court’s jurisdiction,” “a short and plain statement of the claim showing that the pleader is entitled
to relief,” and “a demand for the relief sought[.]” FED. R. CIV. P. 8(a). “A party must state its
claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of
circumstances[,]” and “each claim founded on a separate transaction or occurrence—and each
defense other than a denial—must be stated in a separate count or defense.” Id. 10(b).
Pro se litigants should ordinarily be afforded an opportunity to amend. See Mederos v.
United States, 218 F.3d 1252, 1254 (11th Cir. 2000). However, failure to adhere to procedural
rules or court orders, of course, provides grounds for dismissal. See Brutus v. Int’l Equity Lifestyle
Props, Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232, 1240–41 (11th Cir. 2009)
(explaining that dismissal of the action may be severe but warranted when the grounds for
dismissal were previously notified). Indeed, pro se litigants are not exempt from procedural rules.
See McLeod, 679 F. App’x at 843. Furthermore, pleadings must be verified—which is to say,
signed and dated under penalty of perjury—pursuant to Local Rule 88.2. Lying under oath, either
live or “on paper,” can subject plaintiffs to future criminal prosecution for giving a false statement.
See generally United States v. Roberts, 308 F.3d 1147, 1155 (11th Cir. 2002) (showing a defendant
who falsely subscribed to statements in a habeas petition resulted in a perjury prosecution).
ANALYSIS
Turning to the Complaint, the Court finds that it contains two deficiencies which Plaintiff
must correct before he can proceed to service of process. First, Plaintiff fails to state a claim upon
which relief can be granted under the First and Fourteenth Amendments. Second, the Complaint
was not signed under penalty of perjury and thus violates this District’s Local Rules.
I. Access-to-Court Claim
Plaintiff falls short of stating a plausible access-to-court claim under the First Amendment.
To state an access-to-courts claim under the First Amendment, “a plaintiff cannot merely allege a
denial of access to a law library or adequate attorney, even if the denial is systemic.” Wilson v.
Blankenship, 163 F.3d 1284, 1291 (11th Cir. 1998) (cleaned up). Rather, the plaintiff must allege
an “actual injury” deriving from the alleged lack of access to the courts; “that is, actual prejudice
with respect to contemplated or existing litigation, such as the inability to meet a filing deadline
or to present a claim.” Lewis v. Casey, 518 U.S. 343, 348 (1996) (internal quotation marks and
citation omitted). In other words, he or she must demonstrate that inadequate access to counsel or
legal materials “hindered his efforts to proceed with a legal claim in a criminal appeal,
postconviction matter, or civil rights action seeking to vindicate basic constitutional rights.” Id.
(internal quotation marks and citation omitted). The plaintiff “must provide evidence of such
deterrence, such as a denial or dismissal of a direct appeal, habeas petition, or civil rights case that
results from actions of prison officials.” Id. at 1290–91.
This essential requirement means that “the [defendant’s] actions which allegedly infringed
an inmate’s right of access to the courts must have frustrated or impeded the inmate’s efforts to
pursue a nonfrivolous legal claim.” Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998)
(alteration and emphasis added); see also Lewis, 518 U.S. at 353 n.3 (“Depriving someone of an
arguable (though not yet established) claim inflicts actual injury because it deprives him of
something of value—arguable claims are settled, bought, and sold. Depriving someone of a
frivolous claim, on the other hand, deprives him of nothing at all, except perhaps the punishment
of Federal Rule of Civil Procedure 11 sanctions.”). The plaintiff must describe his or her frustrated
predicate claim “well enough to apply the ‘nonfrivolous’ test and to show that the ‘arguable’ nature
of the underlying claim is more than hope.” Christopher v. Harbury, 536 U.S. 403, 416 (2002);
see also Barbour v. Haley, 471 F.3d 1222, 1226 (11th Cir. 2006) (providing that the actual-injury
element requires the plaintiff to “identify within his complaint[] a nonfrivolous, arguable
underlying claim” (alteration added)).
Here, Plaintiff alleges that Defendants, over the course of several months, refused to
provide him with his legal papers necessary to file a petition for a writ of certiorari with the U.S.
Supreme Court, thus denying his right of access to the courts. At the outset, the Court will assume
that Defendants’ acts of deterrence, if true, are actionable. See, e.g., Wright v. Newsome, 795 F.2d
964, 968 (11th Cir. 1986) (“The allegation that prison officials seized Wright’s pleadings and law
book and destroyed other legal papers clearly states a claim of denial of access to the courts. Prison
officials may not deny or obstruct an inmate’s access to the courts.” (citation omitted)); Bass, 143
F.3d at 1445 (recognizing that the prisoner in Wright “sufficiently asserted that confiscation of the
legal papers impaired his ability to challenge his conviction” and that a “district court therefore
could not have dismissed [his] access-to-courts claim based upon a failure to allege actual injury”
(alteration added)).
The core dilemma with Plaintiff’s Complaint, however, is that “he provides no specific
cases or claims being pursued[.]” Al-Amin v. Smith, 511 F.3d 1317, 1333 (11th Cir. 2008).
Plaintiff merely states that he “received legal mail from the United States Court of Appeals for the
Eleventh Circuit, denying his Motion for Reconsideration,” from which he desired to appeal.
Compl. at 6 (alteration added). Plaintiff adds that he “was challenging his conviction and
sentences[,]” and the last court judgment—presumably the Eleventh Circuit’s denial order—was
entered on November 26, 2024. Id. at 5 (alteration added). But he has plainly failed to identify
the underlying criminal case or any potential grounds he sought to raise in his petition for a writ
of certiorari; thus, it is impossible for this Court to determine whether Plaintiff’s predicate claim
would have presented a nonfrivolous issue. See, e.g., Cranford v. Nevada Dep’t of Corr., 398 F.
App’x 540, 548 (11th Cir. 2010) (“Cranford’s assertions to this effect were conclusory, as he failed
to describe any nonfrivolous claims that he presented in these motions and petitions[.]” (alteration
added)).
It is a different question entirely whether one’s ability to petition the U.S. Supreme Court
for certiorari review is covered by the right of access to courts in the first place. Although such
claims have not been expressly foreclosed, the Eleventh Circuit has stated that “only the
prosecution of a direct appeal of a conviction, a habeas corpus petition, or a civil rights suit are
protected by the constitutional right to access the courts.” Elmore v. Cooper, 476 F. App’x 700,
702 (11th Cir. 2012) (citation omitted). Considering the posture of this case, the Court expresses
no opinion on the issue. Rather, in his Amended Complaint, Plaintiff must plead facts
demonstrating that the claim he would have raised in the U.S. Supreme Court was a non-frivolous
challenge to the Eleventh Circuit order he sought to be reviewed and/or Plaintiff’s underlying
conviction and sentence. For now, Plaintiff fails to state a valid access-to-court claim under the
First Amendment.
II. Procedural Due Process Claim
Plaintiff’s second claim—that the deprivation of his property violated his due process
rights under the Fourteenth Amendment—fares no better. “The Due Process Clause of the
Fourteenth Amendment protects inmates from being deprived of personal property without due
process of law.” Surdakowski v. Dixon, No. 22-cv-00468, 2023 WL 4033603, at *5 (N.D. Fla.
Apr. 27, 2023), report and recommendation adopted, 2023 WL 4029658 (N.D. Fla. June 15, 2023)
(citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)). But an “intentional deprivation of an
inmate’s personal property . . . ‘does not constitute a violation of Due Process’”—and therefore
fails as a § 1983 claim—where “‘a meaningful [state] post-deprivation remedy for the loss is
available.’” Id. (alterations added; quoting Hudson v. Palmer, 468 U.S. 517, 533 (1984)); see
also Lindsey v. Storey, 936 F.2d 554, 561 (11th Cir. 1991) (“Hudson made clear that as long as
some adequate post-deprivation remedy is available, no due process violation has occurred.”
(emphasis in original)). However, where a plaintiff alleges facts “demonstrating that the
deprivation was the result of established state procedure”—in other words, that the deprivation
was not “random or unauthorized”—then he cannot be expected to resort to state post-deprivation
remedies. Wright, 795 F.2d at 967 (discussing Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982); Hudson v. Palmer, 468 U.S. 517 (1984)).
Plaintiff fails to plead any facts reflecting that the officers’ deprivation of his legal
materials was the result of an established state procedure. It appears that officers routinely
neglected Plaintiff’s request for his legal work until his time to seek certiorari review expired, even
after his December 15, 2024 grievance had been approved. He also insists that he was not subject
to “any property restriction” which may have otherwise permitted the deprivation. Compl. at 6.
Since nothing suggests, under these circumstances, that the alleged misconduct was permitted by
established state procedures, Plaintiff can resort to available state post-deprivation remedies. For
instance, Plaintiff can sue correctional officers for conversion of his personal property under
Florida law. See Jackson v. Hill, 569 F. App’x 697, 698 (11th Cir. 2014) (citing Case v. Eslinger,
555 F.3d 1317, 1331 (11th Cir. 2009)); see also Maldonado v. Nassau Cnty. Sheriff’s Off., No. 20-
cv-1109, 2022 WL 11771011, at *10 (M.D. Fla. Oct. 20, 2022) (holding that “an available,
adequate post-deprivation remedy” existed under Florida law for an inmate alleging that jailers
confiscated his USB drive). Accordingly, Plaintiff fails to state a plausible due process claim.
III. Penalty of Perjury
Lastly, Plaintiff must cure a procedural defect in his Complaint, namely, that he failed to
sign it under penalty of perjury. This District’s Local Rules provide that a civil-rights complaint
submitted by a pro se prisoner “must be signed under penalty of perjury.” S.D. FLA. L.R. 88.2(a)
(emphasis added); see also FED. R. CIV. P. 11(a) (“Unless a rule or statute specifically states
otherwise, a pleading need not be verified or accompanied by an affidavit.” (emphasis added)).
Therefore, in drafting his Amended Complaint, Plaintiff must sign it under penalty of perjury or
risk dismissal of this case. See Molina v. Satz, No. 20-60121-Civ, 2020 WL 4381411, at *2 (S.D.
Fla. July 31, 2020) (dismissing pro se prisoner’s amended § 1983 complaint where, “despite
multiple warnings,” the prisoner “failed to follow the Local Rules” and comply with court
directives to sign his complaint “under penalty of perjury”); Moon, 863 F.2d at 837 (“While
dismissal is an extraordinary remedy, dismissal upon disregard of an order, especially where the
litigant has been forewarned, generally is not an abuse of discretion.”). Plaintiff is further warned
that “[l]ying under oath, either live or ‘on paper,’ can subject plaintiffs to future criminal
prosecution for giving a false statement.” Hrejn v. Centurion Med. Grp., No. 24-cv-14287, 2024
WL 4527434, at *1 (S.D. Fla. Oct. 18, 2024) (citing Roberts, 308 F.3d at 1155).
CONCLUSION
Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:
1. Consistent with the purpose of FED. R. CIV. P. 8, Plaintiff is granted leave to file an
Amended Complaint not to exceed twenty (20) pages in length. Moreover, the Court encourages
Plaintiff to make every effort to keep his allegations within the four corners of the complaint form
and to keep attached additional pages at a minimum to better adhere to the page limitations set by
this Order. If applicable, the Amended Complaint must contain a separate paragraph as to each
Defendant explaining what that Defendant did and the supporting facts to show why that person
or entity is being sued. The Clerk is further INSTRUCTED to provide Plaintiff with the Court’s
approved civil-rights complaint form entitled “Complaint for Violation of Civil Rights (Prisoner).”
2. On or before June 2, 2025, the Amended Complaint must be docketed, signed
under the penalty of perjury, and contain a short and plain statement of a claim for relief, a basis
for federal jurisdiction, and a demand for judgment. Plaintiff is reminded that the Amended
Complaint must cure the deficiencies identified within this Order—it must be completed on the
form, include a complete list of his prior litigation history, and provide all aliases by which he has
been known. The Court will only consider claims raised in the Amended Complaint, and the
Amended Complaint will be the operative document for the remainder of this action.
3. The Amended Complaint must be labeled “Amended Complaint” and must show
the case number referenced above, so that it will be filed in this case.
4. Plaintiff is warned that failure to file the Amended Complaint on time and in
compliance with this Court’s Orders shall result in dismissal of this case for failure to prosecute
or failure to comply with court orders. See FED. R. Civ. P. 41(b).
5. The Clerk’s Office is instructed to administratively CLOSE this case.
DONE AND ORDERED in Miami, Florida, this 6th day of May, 2025.
RODOLFO A. RUIZ
UNITED STATES DISTRICT JUDGE
cc: Phillip S. Wright, Jr.
S17363
Florida State Prison
Inmate Mail/Parcels
23916 N.W. 83rd Ave.
Raiford, FL 32083
PRO SE
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