Petition for Writ of Certiorari — Jesse Loor, Petitioner v. Jenny Bailey, et al.

Supreme Court briefJul 6, 2018

Ask Donna

What actually matters in this document.

Text

APPENDIX

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-11733-AA

[filed February 7, 2018]

JESSE LOOR,

Plaintiff- Appellant,

versus

JENNY BAILEY, EDWIN CAMBRIDGE,

MARYDELL GUEVARA, ENRIQUE

RODRIGUEZ, TRACEY WEATHERSPOON,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING AND

PETITION(S) FOR REHEARING EN BANC

BEFORE: WILSON, JULIE CARNES, and JILL

PRYOR, Circuit Judges.

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no

Judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure),

the Petition(s) for Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Charles R. Wilson

UNITED STATES CIRCUIT JUDGE

ORD-42

APPENDIX B

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 16-11733

Non-Argument Calendar

[filed September 14, 2017]

D.C. Docket No. 1:15-cv-24260-FAM

JESSE LOOR,

Plaintiff- Appellant,

versus

JENNY BAILEY, EDWIN CAMBRIDGE,

MARYDELL GUEVARA, ENRIQUE

RODRIGUEZ, TRACEY WEATHERSPOON,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(September 14, 2017)

Before WILSON, JULIE CARNES, and JILL PRYOR,

Circuit Judges. PER CURIAM:

Jesse Loor, a state prisoner proceeding pro se,

appeals the sua sponte dismissal of his 42 U.S.C. §

1983 action for violations of the First and Fourteenth

Amendments and Florida negligence law for failing

to state a claim. On appeal, Loor argues that the

district court erred by dismissing his complaint

because the mailed materials that were denied to

him were not obscene and were not in violation of

and the parties’ briefs, we affirm.

Background

Loor’s family mailed printed pages of a medical

textbook to Loor, but they were rejected by the Metro

West Detention Center because photocopies of

printed books are not permitted due to copyright

infringement law. Loor’s family then sent three

books to Loor, but they were impounded because

they depicted sexual conduct deemed obscene. Loor

sought to have the books placed with his property,

but the clerk had already returned the books. Loor

argues that the rejection of the materials was a

violation of the First and Fourteenth Amendments.

He argues that the materials were not in violation of

that the rejection of the materials hindered his

ability to become “a learned expert of child sex

abuse.” Loor also alleges that his due process rights

were violated when he was deprived of his property

interest in the books and his liberty interest in

educating himself on allegations of child sexual

abuse.

II.

Standard of Review

We review de novo a district court’s sua sponte

dismissal for failure to state a claim for relief under

28 U.S.C. § 1915A(b). Harden v. Pataki, 320 F.3d

1289, 1292 (11th Cir. 2003). To avoid dismissal for

failure to state a claim, a complaint must include

“factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.

662, 678, 129 S. Ct. 1937, 1949 (2009). The

complaint’s factual allegations, though not its legal

conclusions, must be accepted as true. Id.; see also

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.

Ct. 1955, 1965 (2007).

III.

Loor’s First Amendment Claim

When a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests. Turner v. Safley, 482 U.S. 78, 89, 107 S. Ct.

2254, 2261 (1987). Under Turner, we considers four

factors to determine the reasonableness of a

regulation: (1) whether a valid, rational connection

exists between the prison regulation and the

legitimate governmental interest put forward to

justify it; (2) whether alternative means of exercising

the right remains open to inmates; (3) the impact the

accomodation of the asserted right will have on

resources and other inmates and (4) whether a ready

alternative exists that fully accommodates prisoners’

rights at de minimis cost to valid penological

interests. Id. at 89–91. Where accommodation of an

asserted right would have a significant “ripple effect”

on fellow inmates or prison staff, courts should be

particularly deferential to the informed discretion of

corrections officials. Pope v. Hightower, 101 F.3d

1382, 1385 (11th Cir. 1996).

In Thornburgh v. Abbot, the Supreme Court

examined a set of regulations prohibiting incoming

publications to a prison that were detrimental to the

security, good order, or discipline of the institution or

might facilitate criminal activity. 490 U.S. 401, 416,

109 S. Ct. 1874, 1883 (1989). The Supreme Court

noted, “Once in the prison, material of this kind

reasonably may be expected to circulate among

prisoners, with the concomitant potential for

coordinated disruptive conduct.” Id. at 412.

Here, the district court did not err by dismissing

Loor’s complaint, pursuant to 28 U.S.C. § 1915A.

Loor failed to raise a First Amendment claim

because the regulation prohibiting copyrighted

material and obscene material was reasonable. There

is a valid, rational connection between the regulation

prohibiting obscene, explicit, or copyrighted

materials and the government’s interest in keeping

such materials from the hands of pretrial detainees.

See Thornburgh, 490 U.S. at 416. It is rational to

exclude materials that “create an intolerable risk of

disorder,” and textbooks containing explicit imagery

and nudity would be likely to circulate among

inmates. Id. at 417. Finally, as noted by the district

court, requiring prison officials to verify copyright

law compliance or redact books to omit obscene

materials would be costly and no obvious means exist

to give detainees access to obscene or copyrighted

material at a de minimis cost.

IV.

Loor’s Fourteenth Amendment Claim

The Fourteenth Amendment protects against

deprivation of a constitutionally protected interest in

“life, liberty, or property” without the due process of

law. Maddox v. Stephens, 727 F.3d 1109, 1118 (11th

Cir. 2013). “[A] § 1983 claim alleging a denial of

procedural due process requires proof of three

elements: (1) a deprivation of a constitutionallyprotected liberty or property interest; (2) state

action; and (3) constitutionally-inadequate process.”

Arrington v. Helms, 438 F.3d 1336, 1347 (11th Cir.

2006) (internal quotation marks omitted).

“Not every action by a state actor that results in a

loss of liberty under the Due Process Clause gives

rise to liability under § 1983.” Porter v. White, 483

F.3d 1294, 1307 (11th Cir. 2007). “[T]he Due Process

Clause is simply not implicated by a negligent act of

an official causing unintended loss of or injury to life,

liberty, or property.” Id. (internal quotation marks

omitted) (emphasis omitted). Additionally, “no

procedural due process violation [occurs] if a

meaningful postdeprivation remedy for the loss is

available.” Case v. Eslinger, 555 F.3d 1317, 1331

(11th Cir. 2009) (internal quotation marks omitted).

Loor failed to raise a procedural due process

claim. The clerk’s mistaken return of the textbooks,

in contravention to the facility’s policy to keep the

impounded materials at the facility for 30 days, does

not amount to a § 1983 violation. See Porter, 483

F.3d at 1307. Loor had a post-deprivation remedy to

challenge the loss of property under Florida law. See

Fla. Stat. § 768.28(1) (waiving sovereign immunity in

tort actions for the negligent or wrongful acts of

employees causing injury or loss of property). The

existence of § 768.28 provides Loor with a

meaningful, post-deprivation remedy to challenge

the loss of property. See Case, 55 F.3d at 1331.

AFFIRMED.

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA

Miami Division

[filed January 21, 2016]

Case Number: 15-24260-CIV-MORENO

JESSEE LOOR,

Plaintiff,

vs.

JENNY BAILEY, EDWIN CAMBRIDGE,

MARYDELL GUEVARA, ENRIQUE RODRIGUEZ,

and TRACEY WEATHERSPOON,

Defendants.

ORDER ADOPTING MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION TO

DISMISS PLAINTIFF’S COMPLAINT AND

REMAND REMAINING STATE LAW CLAIMS

TO STATE COURT

THE MATTER was assigned to the Honorable

Patrick A. White, United States Magistrate Judge for

a Report and Recommendation on Plaintiff’s 42

U.S.C. § 1983 Civil Rights Complaint (D.E. 1),

removed to this Court on November 16, 2015. The

Magistrate

Judge

filed

Report

and

Recommendation (D.E. 7) on November 23, 2015.

The Court has reviewed the entire file and record.

The Court has made a de novo review of the issues

that the Defendant's Limited Objection to Report of

Magistrate Judge presents (D.E. 11), filed on

December 7, 2015, and being otherwise fully advised

in the premises, it is

ADJUDGED that United States Magistrate

Judge

Patrick

White’s

Report

and

Recommendation is AFFIRMED and ADOPTED.

Accordingly, it is hereby

ADJUDGED that:

(1) Plaintiff’s

civil

rights

complaint

DISMISSED, pursuant to 28 U.S.C. Section

1915A(b)(1), for failure to state a claim upon which

relief may be granted.

(2) The remaining state law claims shall be

REMANDED to State Court.

(3) All pending motions in this case are

DENIED as MOOT.

(4) No Certificate of Appealability issue.

DONE AND ORDERED in Chambers at Miami,

Florida, this 28th day of January 2016.

/s/ Signature

FREDERICO A. MORENO

UNITED STATES DISTRICT JUDGE

Copies furnished to:

United States Magistrate Judge Patrick A. White

Jesse Loor

10-75184

Turner Guilford Knight Correctional Center

7000 NW 41st Street

Miami, FL 33166

Pro Se

Counsel of Record

10a

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

[filed November 23, 2015]

Case Number: 15-24260-CIV-MORENO

JESSE LOOR,

Plaintiff,

vs.

JENNY BAILEY, ET AL.,

Defendants.

REPORT OF MAGISTRATE JUDGE

Introduction

This cause is before the Court on the pro se

Plaintiff’s civil rights complaint pursuant to 42

U.S.C. § 1983.

The complaint was initially filed in the Circuit

Court for the Eleventh Judicial Circuit for MiamiDade County, case number 15-24181CA-01. The

Defendants, Jenny Bailey, Edwin Cambridge,

Marydell Guevara, Enrique Rodriguez, and Tracey

Weatherspoon, were served between October 26 and

29, 2015. They have filed a Notice of Removal based

on original jurisdiction and paid the requisite filing

fee. (DE# 1). The Defendants also filed a motion for

an extension of time to respond to the complaint

until December 7, 2015 (DE# 4), which was granted

in a paperless order.

The complaint is presently before the Court for

initial screening.

11a

II.

Screening Standard

Because the Plaintiff is a prisoner seeking redress

from governmental entities, employees or officers, his

complaint is subject to screening pursuant to 28

U.S.C. § 1915A, regardless of in forma pauperis

status. See 28 U.S.C. § 1915A; Thompson v. Hicks,

213 Fed. Appx. 939, 942 (11th Cir. 2007). Section

1915A instructs that the complaint or any portion of

the complaint shall be dismissed if it:

(1)

(2)

is frivolous, malicious, or fails to state a

claim upon which relief may be granted;

seeks monetary relief from a defendant

who is immune from such relief.

28 U.S.C. § 1915A(b).

Section 1983 civil rights actions require the

deprivation of a federally protected right by a person

acting under color of state law. 42 U.S.C. § 1983;

Polk County v. Dodson, 454 U.S. 312 (1981);

Whitehorn v. Harrelson, 758 F. 2d 1416, 1419 (11th

Cir. 1985). In order to state a claim, a plaintiff must

establish (1) he was deprived of a right secured by

the Constitution or laws of the United States, and (2)

the alleged deprivation was committed under color of

state law. 42 U.S.C. 1983; Dodson, 454 U.S. at 312;

see Almand v. DeKalb County, Ga., 103 F.3d 1510,

1513 (11th Cir. 1997). The standard for determining

whether a complaint states a claim upon which relief

may be granted is the same under Section

1915(e)(2)(B) or and Federal Rules of Civil Procedure

12(b)(6) and 12(c). See Mitchell v. Farcass, 112 F.3d

1483, 1490 (11th Cir. 1997)(“The language of section

1915(e)(2)(B)(ii) tracks the language of Federal Rule

of Civil Procedure 12(b)(6)”).

12a

A complaint need not contain detailed factual

allegations. See Fed. R. Civ. P. 8(a)(2) (pleading must

contain a “short and plain statement of the claim

showing that the pleader is entitled to relief....”).

However, a plaintiff’s obligation to provide the

grounds for his entitlement to relief requires more

than labels and conclusions; a “formulaic recitation

of the elements of a cause of action will not do....”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). The allegations must rise above the

speculative level and “state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. A

complaint is frivolous under section 1915(e) “where it

lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989); see

Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001).

Dismissals on this ground should only be ordered

when the legal theories are “indisputably meritless”

or when the claims rely on factual allegations that

are “clearly baseless.” Neitzke, 490 U.S. at 327.

To determine whether a complaint fails to state a

claim upon which relief can be granted, the Court

must engage in a two-step inquiry. See Twombly, 550

U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662 (2009).

First, the court must identify the complaint’s factual

allegations, which are entitled to an assumption of

truth, and identify and reject the legal conclusions to

which no assumption of truth applies. Iqbal, 556 U.S.

at 678. Second, the court must determine whether

these factual allegations, taken as true, plausibly

suggest an entitlement to relief. Id. This 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. If the well-pleaded

facts do not permit the court to infer more than the

13a

“mere possibility of misconduct,” the complaint is

insufficient. Id.

III.

Claims

The Plaintiff names as Defendants the Director of

Miami-Dade County Corrections Marydell Guevara,

Metro-West Detention Center Captain Enrique

Rodriguez, Metro-West Detention Center Lieutenant

Jenny Bailey, Metro-West Detention Center

Mailroom Clerk Tracey Weatherspoon, and Director

of Patient Care Center Services Edwin Cambridge.

Construing the allegations liberally and accepting

them as true, the Plaintiff’s family purchased a

medical textbook for him entitled “The Sexually

Abused Child,” copied 337 pages from the CD-ROM it

included, and mailed the copies to him in five manila

envelopes on November 3, 2014. Weatherspoon

rejected them because “photocopies of copyrighted

books are not permitted due to copyright

infringement law,” and an unknown supervisory

approved this action. (DE# 1-1 at 6). The Plaintiff

filed an inmate grievance which attached a cease and

desist letter the same day, informing the mailroom

staff that no copyright violation occurred due to the

“fair use doctrine.” Id. On November 17, 2014,

Rodriguez and Bailey approved the rejection “due to

grievance and letter. Id.

In December, 2014, the Plaintiff’s family

purchased three medical textbooks – “Evaluation of

the Sexually Abused Child,” “Obstetrics and

Gynecology” and “Dorlad’s/Gray’s Pocket Atlas of

Anatomy” – which Weatherspoon impounded on

December 29, 2014, because they “depict[] sexual

conduct.” Id. The Plaintiff submitted an inmate

14a

grievance on December 31, 2014, attaching another

cease and desist letter informing Weatherspoon of

the books’ probative value. (DE# 1-1 at 7). On

January 14, 2015, the Plaintiff received notice that

all three books had been rejected due to “obscene

material,” by Defendant Cambridge. Id. The same

day, the Plaintiff asked Weatherspoon to have his

books placed in property so his family could pick

them up. She responded that they had already been

sent back, which the Plaintiff informed her is

contrary to written facility policy.

The Plaintiff wrote Defendant Guevara a letter on

February

28,

2015,

about

the

foregoing

unconstitutional acts by Metro-West personnel.

Guevara did not respond.

Other individuals at Metro-West have been

subjected to similar misconduct.

The Plaintiff needs the returned material to

“become a learned expert in allegations of sex abuse.”

(DE# 1-1 at 9). He alleges that the deprivation of

incoming mail constitutes censorship in violation of

the First Amendment, and deprivation of liberty and

property under the Fourteenth Amendment for

which he has no adequate remedy at law. He further

alleges that the Defendants were placed on notice of

these violations by the Plaintiff’s grievances and

letters.

He seeks declaratory judgment, injunctive relief,

punitive and nominal damages, and any other relief

that is just, proper, and equitable.

IV.

(1)

Discussion

Jurisdiction

When an action is removed to this Court, one of

15a

the Court’s initial inquiries is whether its subject

matter jurisdiction over the removed action exists.

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 587–

88 (1999) (examining the existence of “subject-matter

jurisdiction at the outset of a case ... [is] often ... the

most efficient way of going”) (citation and quotation

marks omitted and alterations in the original). A

review of Plaintiff’s complaint reveals that it claims

federal constitutional violations, over which this

Court has concurrent jurisdiction with the state

court as a Section 1983 action, and a Florida

negligence claim over which this Court may exercise

supplemental jurisdiction. See 28 U.S.C. § 1441;

Felder v. Casey, 487 U.S. 131, 139 (1988) (state

courts possess concurrent jurisdiction with federal

courts over Section 1983 actions); 28 U.S.C. § 1367(a)

(a district court may exercise supplemental

jurisdiction over state law claims related to the

federal court action). Each of the Plaintiff’s claims,

liberally construed, will be addressed in turn.

(2)

First Amendment

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or of the

right of the people peaceably to assemble,

and to petition the Government for a redress

of grievances.

U.S. Const. Amend. I.

Although “prisoners do not shed all constitutional

rights at the prison gate, ... [l]awful incarceration

16a

brings about the necessary withdrawal or limitation

of many privileges and rights.” Sandin v. Conner,

515 U.S. 472, 485 (1995) (citation and quotations

omitted). Both inmates and noninmates have a First

Amendment interest in correspondence sent to one

another. Procunier v. Martinez, 416 U.S. 396, 408-09

(1974), overruled on other grounds by Thornburgh v.

Abbott, 490 U.S. 401 (1989). The Supreme Court’s

Martinez standard applies to a prisoner’s outgoing

mail while regulations affecting a prisoner’s

incoming mail is analyzed under the reasonableness

standard set forth in Turner v. Safley, 482 U.S. 78,

89 (1987). See Perry v. Sec’y, Fla. Dep’t of Corr., 664

F.3d 1359, 1364 (11th Cir. 2001). That is, “when a

prison

regulation

impinges

inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.” Turner, 482 U.S. at 89; see O’Lone v.

Estate of Shabazz, 482 U.S. 342 (1987) (a prison

regulation, even though it infringes the inmate’s

constitutional rights to some degree, is an actionable

constitutional violation only if the regulation is

unreasonable); Hakim v. Hicks, 223 F.3d 1244, 1247

(11th Cir. 2000).

Reasonableness is determined by applying

Turner’s four-part test. First, there must be a “valid,

rational connection” between the prison regulation

and the legitimate governmental interest put

forward to justify it, and this connection must not be

so remote as to render the policy arbitrary or

irrational. Turner, 482 U.S. at 89-90 (quoting Block

v. Rutherford, 468 U.S. 576, 586 (1984)). Second, a

court must consider whether inmates retain

alternative means of exercising the circumscribed

right. Turner, 482 U.S. at 90. Third, a court must

17a

take into account the costs that accommodating the

right would impose on other inmates, guards, and

prison resources generally. Id. And fourth, a court

must consider whether there are alternatives to the

regulation that “fully accommodate[ ] the prisoner’s

rights at de minimis cost to valid penological

interests.” Id.

The Supreme Court reaffirmed the Turner

standard in Thornburgh. It agreed that prison

officials could deny inmates incoming publication if

they were deemed “detrimental to institutional

security.” Thornburgh 490 U.S. at 403. Affording

officials with “broad discretion” is especially

appropriate where “the regulations at issue concern

the entry of materials into the prison.” Id. at 416-17.

The Court “accords substantial deference to the

professional judgment of prison administrators, who

bear a significant responsibility for defining a

corrections

system’s

legitimate

goals

and

determining the most appropriate means to

accomplish them.” Overton v. Bazzetta, 539 U.S. 126

(2003); see also Bell v. Wolfish, 441 U.S. 520, 547

(1979). Hence, courts should defer to the judgment of

prison officials given the “inordinately difficult

undertaking”

posed

modern

prison

administration. Turner, 482 U.S. at 85; see also

Lawson v. Singletary, 85 F.3d 502, 510 (11th Cir.

1996) (recognizing that management of prisons is

complex and courts are ill-equipped to deal with such

problems). This is particularly true where state

penal facilities are involved. Newman v. State of

Ala., 683 F.2d 1312 (11th Cir. 1982); Smith v.

Sullivan, 611 F.2d 1039 (5th Cir. 1980).

In the instant case, the Plaintiff concedes that

incoming mail was returned by the mailroom due to

18a

content. The Plaintiff contends that he needs the

material to “become a learned expert in allegations of

sex abuse.” (DE# 1-1 at 9).

There is a valid, rational connection between the

detention center’s prohibition of material that

violates copyrights, contains sexual content, or is

obscene, and the governmental interest of keeping

explicit material or material that violates copyright

law, out of the hands of pretrial detainees. Second,

the Plaintiff has alternate means of exercising his

rights through use of legal materials that are not in

apparent violation of copyright or contain sexual or

obscene content, or by using materials available at

the detention center or through defense counsel.

Third, the costs of verifying copyright law compliance

and redacting books to omit obscene or sexual

content, would be high. Fourth, there is no obvious

alternative to the regulation which would fully

accommodate detainees’ rights at de minimis cost.

See, e.g., Richards v. England, 2008 WL 5110793

(M.D. Fla. Dec. 1, 2008) (plaintiff failed to state a

claim where the Florida Department of Corrections

returned photographs which, the plaintiff admitted,

depicted scantily clad women).

The Plaintiff has, therefore, failed to state a First

Amendment claim and dismissal is warranted.

(3)

Due Process

The Due Process Clause protects against

deprivations of “life, liberty, or property without due

process of law.” U.S. Const. Amend XIV. An inmate

states a cognizable procedural due process claim

when he alleges a deprivation of a protected liberty

property

interest,

state

action,

and

19a

constitutionally inadequate process. Cryder v.

Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). The

allegation of an unauthorized deprivation of property

does not state a procedural due process claim where

an adequate state remedy exists to redress the

deprivation. Parratt v. Taylor, 451 U.S. 527 (1981),

overruled in part by Daniels v. Williams, 474 U.S.

327 (1986). Post-deprivation remedies do not satisfy

the due process requirement, however, where the

deprivation of property is effected pursuant to an

established state procedure rather than through

unauthorized, random action. Logan v. Zimmerman

Brush Co., 455 U.S. 422 (1982); see also Carcamo v.

Miami-Dade County, 375 F.3d 1104, 1106 n.4 (11th

Cir. 2004) (acceptability of post-deprivation process

turns on the feasibility of pre-deprivation process,

not the existence of a policy or practice). An

intentional deprivation of property by state

employees does not give rise to a violation of the Due

Process Clause if the state provides an adequate

postdeprivation remedy, so long as it was random or

unauthorized. Hudson v. Palmer, 468 U.S. 517, 533

(1984); see also Carcamo, 375 F.3d at 1105 (applying

Parratt and Hudson to a deprivation of property by a

county). To determine whether a constitutional

violation has occurred, it is necessary to ask what

process the state provided and whether it was

constitutionally adequate. Zinermon v. Burch, 494

U.S. 113, 126 (1990).

The Plaintiff alleges that the incoming mail sent

by his family was returned; not that it was

erroneously kept or discarded by the detention

center. Nor does he allege that he lacks any postdeprivation remedy. Therefore, assuming that the

detention center’s return of unacceptable mail could

20a

be considered a due process violation, the Plaintiff’s

claim is not cognizable under Section 1983. See, e.g.,

Poulin v. Jeter, 2010 WL 3701384 (M.D. Fla. Sept.

15, 2010) (no constitutional violation where the

plaintiff had access to a grievance procedure and

failed to allege he did not have an adequate postdeprivation remedy).

The Plaintiff’s due process claim should therefore

be dismissed.

(4)

Access to Courts

Prisoners and detainees have a constitutional

right to effective access to the courts. See Lewis v.

Casey, 518 U.S. 343 (1996); Bounds v. Smith, 430

U.S. 817 (1977); Wilson v. Blankenship, 163 F.3d

1284, 1290 (11th Cir. 1998); Wanninger v.

Davenport, 697 F.2d 992 (11th Cir. 1983); see also

Bell, 441 U.S. at 545 (pretrial detainees “retain at

least those constitutional right that [the Supreme

Court has] held are enjoyed by convicted prisoners.”).

To assert a claim arising from the denial of

meaningful access to courts, an inmate must first

establish actual injury. Lewis, 518 U.S. at 349-52.

Actual injury may be established by demonstrating

that an inmate’s efforts to pursue a nonfrivolous

claim were frustrated or impeded by a deficiency in

the prison library or in a legal assistance program or

by an official’s action. Id. at 351; Barbour v. Haley,

471 F.3d 1222, 1225 (11th Cir. 2006). For instance,

an inmate could show actual injury with proof that a

court dismissed his action for failure to comply with

a technical requirement unknown to the inmate due

to deficiencies in the prison’s assistance facilities, or

that a claim could not be presented to a court

because an inmate was so stymied by the law

21a

library’s inadequacies that he could not prepare a

complaint. Lewis, 518 U.S. at 351; Barbour, 471 F.3d

at 1225. The purpose of recognizing an access claim

is to provide vindication for a separate and distinct

right to seek judicial relief, therefore, a litigant

asserting such a claim must also identify within his

complaint a “nonfrivolous,” “arguable” underlying

claim. Christopher v. Harbury, 536 U.S. 403, 415

(2002); see Barbour, 471 F.3d at 1226. Further, the

injury requirement is not satisfied by just any type of

frustrated legal claim. Lewis, 518 U.S. at 354. The

plaintiff must show that he was prejudiced in a

criminal appeal, in a post-conviction proceeding, or

in a civil rights action in which he sought “to

vindicate ‘basic constitutional rights.’” Id. at 354

(quoting Wolff v. McDonnell, 418 U.S. 539, 579

(1974)).

The Plaintiff’s contention that he is attempting to

become an expert on sexual allegations fails to allege

actual injury by prejudicing one of the recognized

legal proceedings.

Therefore, to the extent that he asserts that his

right to access the courts has been violated, this

claim should be dismissed.

(5)

Florida Negligence

Under 28 U.S.C. § 1367(a), a district court may

exercise supplemental jurisdiction over state law

claims related to the federal court action. To exercise

supplemental jurisdiction over state law claims not

otherwise cognizable in federal court, “the court must

have jurisdiction over a substantial federal claim and

the federal and state claims must derive from a

‘common nucleus of operative fact.’” Jackson v.

Stinchcomb, 635 F.2d 462, 470 (5th Cir. 1981)

22a

(quoting United Mine Workers v. Gibbs, 383 U.S. 715

(1966)). 1 State law claims should ordinarily be

dismissed if all federal claims are eliminated before

trial. Gibbs 383 U.S. at 726.

Because the Plaintiff originally filed this action in

state court and it was subsequently removed to

federal court, the remaining Florida negligence

claims should be remanded back to state court. See

Cook v. Sheriff of Monroe County, 402 F.3d 1092,

1123 (11th Cir. 2005) (“Because this case was

originally filed in state court and removed to federal

court pursuant to 28 U.S.C. § 1441, if the district

court declines to continue to exercise supplemental

jurisdiction, [plaintiff’s] remaining claims should be

remanded to state court”); Lewis v. City of St.

Petersburg, 260 F.3d 1260, 1267 (11th Cir. 2001)

(after all federal claims have been dismissed, “[i]f the

district court does decline to exercise supplemental

jurisdiction, these [state] claims shall be remanded

to state court, rather than dismissed, because this

case was oiginally filed in state court and removed to

federal court”); May III v. Boyd Bros. Transportation,

241 Fed. Appx. 646 (11th Cir. 2007) (same).

Conclusion

It is therefore recommended that the Complaint

(DE# 1) be dismissed pursuant to Section

1915A(b)(1), for failure to state a claim upon which

relief can be granted, and that the remaining state

law claims be remanded to state court.

Objections to this report may be filed with the

1 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.

1981) (adopting as binding precedent all decisions of the former

Fifth Circuit handed down prior to the close of business on

September 30, 1981).

23a

District Judge within fourteen days of receipt of a

copy of the report.

DONE AND ORDERED at Miami, Florida, this

23 day of November, 2015.

cc: Jesse Loor

10-75184

Metro West Detention Center

13850 NW 41 Street

Miami, FL 33138

PRO SE

Daija Page Lifshitz

Miami-Dade County Attorney’s Office

111 NW 1st Street, Suite 2810

Miami, FL 33128

24a

APPENDIX E

IN THE CIRCUIT COURT OF THE

ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

[filed October 20, 2015]

Case Number: 15-24181CA30

JESSE LOOR,

Plaintiff,

vs.

JENNY BAILEY, EDWIN CAMBRIDGE,

MARYDELL GUEVARA, ENRIQUE RODRIGUEZ,

TRACEY WEATHERSPOON.

COMPLAINT

Now comes Jesse Loor, in propria persona, and hereby

files this complaint against the above named

defendant(s) for violations of his First and Fourteenth

Amendments to the United States Constitution. Mr.

Loor seeks declaratory, injunctive and other

appropriate relief.

1.)

PLAINTIFF

Plaintiff, Jesse Loor, is and was at all times

mentioned herein a pre-trial detainee in the

custody of Miami-Dade County Corrections and

Rehabilitation Department (MDCR). Mr. Loor

has been subjected to false allegations that lead

to an unlawful arrest, followed by an unlawful

prosecution; and is currently confined in Metro

West Detention Center unlawfully, located at

13850 N.W. 41 St. Miami, Florida 33178; and has

been unlawfully incarcerated since September

23, 2010; Mr. Loor willfully, intelligently, and

knowingly chooses to prepare his own defense

25a

against the unlawful prosecution he has been

subjected to; and has been acknowledged as pro

se by the Third District Court of Appeal of

Florida, the Federal District Court of Southern

Florida and the Eleventh Federal District Court

of Appeal.

II.

DEFENDANT(S)

2.)

Defendant Marydell Guevara is the director of

Miami-Dade

County

Corrections

and

Rehabilitation Department (MDCR). She is

legally responsible for the overall operation of the

department and each institution under its

jurisdiction. Including Metro West Detention

Center.

3.)

Defendant Rodriguez (first name unknown to

Plaintiff) is ranked as captain and was and/or is

assigned to Metro West Detention Center. He is

legally responsible for the operation of Metro

West Detention Center and for the welfare of all

the inmates in that facility.

4.)

Defendant Jenny Bailey is a correctional officer

of (MDCR) who, at all times mentioned in this

complaint, held the rank of lieutenant and was

and/or is assigned to Metro West Detention

Center.

5.)

Defendant Weatherspoon (first name unknown

to Plaintiff) is and was at all time mentioned

herein the mailclerk at Metro-West Detention

Center. She is responsible of the handling of the

incoming mail of inmates in Metrowest

Detention Center.

6.)

Defendant Edwin Cambridge who, according to

the inmate grievance appeal form is named

26a

Division Chief or Director, Patient Care Services

and who supports the rejection of Mr. Loor’s

medical text books and who finalized Mr. Loor’s

grievance appeal regarding his rejected medical

text books.

7.)

III.

Each defendant is sued individually and in

his/her official capacity. At all times mentioned

in this complaint, each defendant acted under

color of state law.

FACTS

8.)

Mr. Loor states the following under penalty of

perjury:

9.)

On October 20, 2014 Mr. Loor’s family purchased

Evaluation of the Sexually Abused Child; “A

Medical Text Book” with CD-ROM, by Astrid M.

Heger S. Jean-Emans and David Muram through

Amazon.com. Mr. Loor was reluctant to have the

pricey medical text book ($124.14) shipped to him

because it is only available in hardcover and the

hardcover would have been cut off upon delivery

and approval by Mr. Loor. Therefore, Mr. Loor’s

family printed single copies of 337 pages of the

medical text book from the CD-ROM and mailed

the single copies in (5) large manila envelopes to

Mr. Loor on November 3, 2014.

10.) On November 5, 2014 Defendant Weatherspoon

rejected all (5) manila envelopes alleging

“photocopies of copyrighted books are not

permitted due to copyright infringement law.” An

unknown facility supervisor approved the

rejection.

11.) That same day Mr. Loor submits a inmate

grievance and attaches a cease and desist letter

27a

to the grievance appeal form to inform mailroom

staff his single copies of his purchased medical

text book printed from a CD-ROM is protected by

the “fair use doctrine” and is not in violation of

purchase receipt and letter are enclosed and

made part to this complaint as Exhibit “A”.

12.) On November 17, 2014 Defendants Rodriguez

and Bailey approved and supports the rejections

of Mr. Loor’s medical literature “due to copyright

infringement law” disregarding the cease and

desist letter.

13.) During the month of December of 2014 Mr. Loor’s

family purchased Evaluation of the Sexually

Abused Child; “A Medical Text Book” through

Abebooks.com, and Obstetrics and Gynecology “A

Medical Text Book”; and Dorland’s/Gray’s Pocket

Atlas of Anatomy “A Medical Textbook” through

Barnes and Noble. Defendant Weatherspoon

impounded all (3) medical text books on

December 29, 2014 alleging that all (3) medical

text books “depicts sexual conduct.”

14.) On December 31, 2014 Mr. Loor submits a

inmate grievance in regards to the improper

impoundment of his purchased medical text

books and attaches a cease and desist to the

grievance to inform Defendant Weatherspoon the

probative value, authorative and empirical case

studies and serious and relevant research the

medical text books contain. Copy of purchase

receipt, grievance, appeal and letter are enclosed

and made part to this complaint as Exhibit “B”.

15.) On January 14, 2015 Mr. Loor receives notice

that all (3) medical text books has been rejected

28a

due to “obscene material” alleged by Defendant

Cambridge. That same day Mr. Loor spoke to

Defendant Weatherspoon to have his medical

text books be placed in his property so that his

family can pick up his medical text books.

Defendant Weatherspoon stated she had already

sent back the books. Mr. Loor replied; “According

to written facility policy impounded or rejected

publication shall be held at the institution for

(30) days. Defendant Weatherspoon replied; “My

bad, I didn’t know.” Please refer to Exhibit B

page 4 for (30) days written policy.

16.) On February 28, 2015 Mr. Loor sends a letter to

Defendant Guevara at 2525 N.W. 62 St. 2nd

Floor, Miami, Florida 33147 in regards to the

eminent unconstitutional acts of Metro West

personnel. As of date, no response has been

received from Defendant Guevara. A copy of the

letter is enclosed and made part to this complaint

as Exhibit “C”.

17.) Upon information and belief, similarly situated

individuals have been subjected to the same

misconduct by Metro West personnel. Copies of

similar rejection forms of similarly situated

individuals are enclosed and made part to this

complaint as Exhibit “D”. Mr. Loor wishes to

point out that the rejected incoming mail of the

similarly situated individuals were of relevant

legal materials.

18.) Each defendant is sued individually and in

his/her official capacity. At all time mentioned in

this complaint each defendant acted under color

of state law.

29a

IV. LEGAL CLAIM

Count One: Censorship and Rejection of Mr.

Loor’s Incoming Mail.

19.) Exceptions that do not constitute copyright

infringement are “fair use” “public domain,” and

“non-copyright works”. The “fair use” is a

doctrine which permits the reproduction of

copyrighted materials for a limited purpose of

teaching, reviewing, literary criticism, and the

like. 17 U.S. Code Section 107-Limitations on

exclusive rights provides; the “fair use” of a copy

righted work, including such use by reproduction

in copies for purposes such as criticism,

comment, news reporting, teaching, (including

multiple copies for classroom use) scholarship or

research is not an infringement of copyright.

20.) “The First Amendment, as incorporated by the

Fourteenth Amendment, prohibits States from

abridging the freedom of speech.” U.S. Const.

Amend. 1. Mail is one medium of free speech, and

“the right to send and receive mail exists under

the First Amendment.” Quoting Al-Min v. Smith,

511 F.3d 1317 (2008). “The right to receive

publication is … a fundamental right. The

dissemination of ideas can accomplish nothing, if

otherwise willing addressees are not free to

receive and consider them.” Lamont v.

Postmaster General of U.S., 381 U.S. 301, 308,

85 S.Ct. 1493, 14 L. Ed 398 (1965) Brennan, J.,

concurring). Prisoners retain their First

Amendment right to receive information while

incarcerated. Turner v. Safley, 482 U.S. 78, 84,

107 S.Ct. 2254, 96 L. Ed. 2d 64 (1987); (“Prison

walls do not form a barrier separating prison

30a

inmates

from

Constitution.”)

the

protections

the

21.) Defendants were put on notice through

grievances, appeals, (2) cease and desist letters

and a letter to the director that the rejected

single printed copy of his purchased medical text

book was not in violation of copyright; that the

medical literature are essential and relevant to

his defense and legal proceedings; that all (3)

medical textbooks are essential for research and

study to educate all fact finders and all trier of

facts; and that their precise conduct is unlawful

and unconstitutional and liable to civil law suit.

Please refer to Exhibit “B” pages 10-11 for

complete discussion on the probative value of Mr

Loor’s medical text books.

22.) Therefore, re-alleging and incorporating by

reference paragraphs 8-16, and 21, and applying

the applicaple laws in paragraphs 19-20

Defendants’ conduct was willful and negligent

when they ignored or failed to acknowledge Mr.

Loor’s fair and clear warning that their

censorship and arbitrarial rejection of his

incoming medical research materials comprises

his defense and legal proceedings; that the

rejection of his medical research materials

hinders Mr. Loor’s ability to become a learned

expert in allegations of child sex abuse (“A person

may qualify as expert by his or her study of

authoritative sources without any practical

experience in the subject matter.” 1 Fla. Prac.

Evidence § 702.1 (2013 Ed.); Fla. Stat. 90.702),

and thus in flagrant violation of not only one

constitutional right (the right to free speech) but

31a

also a second constitutional right (right to due

process).

Count Two, Mr. Loor’s Due Process Violation.

23.) The Due Process Clause of the Fourteenth

Amendment prohibits a State from depriving

“any person of life, liberty, or property without

due process of law.” There are two parts to this

clause:

“substantive

due

process”

and

“procedural due process”. Mr. Loor will be

applying procedural due process.

24.) Due Process Clause applies to Mr. Loor’s

property interest of his rejected medical

materials that were properly purchased through

reputable book stores, and a liberty interest in

educating himself of allegation of child sex abuse,

of which, he has been wrongfully subjected to.

Mr. Loor also has a liberty interest in educating

all fact finders and all trier of facts on the stepby-step discussion of how to interview and

clinically evaluate a child suspected of abuse.

And how officials must conduct themselves

during the interview and physical exam to make

a proper and untainted diagnosis. Absent of the

(3) medical text books that were improperly

rejected deprives Mr. Loor of this constitutionally

protected liberty and property interest.

25.) On the (MDCR) notice of rejection or

impoundment of publication form, it states as

follows: “Inmates are advised that this

impoundment or rejected publication shall be

held at the institution for (30) days. You you

must make arrangements to have the publication

picked up by an approved visitor or mailed to a

relative, friend or the sender at your expense

32a

within (30) days, or it shall be discarded or

destroyed. The (30)-day time period shall not

include anytime during which an appeal or

grievance proceeding is pending.” Please refer to

Exhibit “B” page 4 for complete notice.

26.) As stated in paragraph 15 Mr. Loor requested his

impounded books to be placed in his property for

pick up by family member in the instance the

medical text books were to be rejected. But

Defendant Weatherspoon failed to comply with

facility policy because she sent back Mr. Loor’s

medical text books 5-7 days after their arrival on

December 29, 2014. This is noteworthy. Mr.

Loor’s medical text books were sent back before

the written policy of (30) days and/or the

finalizing of Mr. Loor’s grievance and appeal

which was arbitrarily finalized on February 2,

2015.

27.) Defendant Weatherspoon is on record that she

sent back all (3) medical textbooks on January

14, 2015. This is false. Because Mr. Loor’s family

emailed Barnes and Noble and requested the

date they received the rejected medical text

books, Barnes and Noble stated they received the

rejected medical textbooks on January 9th, 2015.

Mr. Loor’s family printed and mailed this

noteworthy information via U.S.P.S. to Mr. Loor

a day in the month of February 2015. Mr. Loor

never received such information which he

believes to be suspicious.

28.) The question is, how did Defendants Bailey and

Cambridge make a determination to reject all (3)

medical textbooks if the medical textbooks were

not in the facility on January 13 and 26 2015.

Where Defendant Bailey is on record that a vote

33a

was taken…, in regards to Mr. Loor’s medical

textbooks and dated January 26, 2015. And then

Defendant Cambridge is on record that he

chaired in the meeting in regards to Mr. Loor’s

medical text books on January 13, 2015. Because

according to Barnes and Noble they received the

medical textbooks on January 9th, 2015.

Therefore,

theres

doubt

Defendant

Weatherspoon sent back Mr. Loor’s medical

textbooks some time before January 9th, 2015.

29.) Accordingly, based on the aforementioned facts

in paragraphs 23-29 Mr. Loor was deprived of his

constitutionally protected liberty and property

interest of his medical materials where the

improper rejection served no penological interest.

Thus rendering a flagrant violation of his due

process right. (Procedural due process).

30.) The plaintiff, Jesse Loor has no plain, adequate

or complete remedy at law to redress the wrongs

described herein. Mr. Loor has been and will

continue to be irreparably injured by the conduct

of the defendants unless this court grants the

declaratory and injunctive relief which he seeks.

PRAYER FOR RELIEF

Wherefore, Plaintiff, Mr. Loor respectfully prays that

this court enter judgement granting plaintiff:

31.) A declaration that the acts and omissions

described herein violated Mr. Loor’s rights under

the Constitution and laws of the United States.

32.) A preliminary and permanent injunction

ordering Defendants and all personnel of

(MDCR) to: cease the censorship of Mr. Loor’s

incoming mail because Mr. Loor is acutely aware

34a

on the definition to “obscene material” and he

will be applying the “fair use doctrine” to all

single copies of copyrighted publications,

articles, case laws, etc. that is relevant to his

case(s); respectfully acknowledge Mr. Loor as a

pro se pre-trial detainee; Mr. Loor’s family is in

possession of Evaluation of the Sexually Abused

Child. Therefore, ordering Defendants to

coordinate with Mr. Loor’s family to have this

medical textbook immediately hand-delivered to

Mr. Loor undamaged and without delay; not to

interfere with the delivery of Dorland’s/Gray’s

Pocket Atlas of Anatomy, and Obstetrics and

Gynecology from Barnes and Noble or

Abebooks.com or any other reputable books store

undamaged.

33.) Punitive damages. Punitive damages are

appropriate when defendants acted wantonly

and willfully. Here, Defendants willfully ignored

or failed to acknowledge Mr. Loor’s fair and clear

warning that their conduct will violate his

constitutional rights. And where Defendants

misapplied as to what depicts actual “sexual

conduct” and “obscene material” and where the

rejection of Mr. Loor’s relevant medical material

served no reasonable penological interest.

Punitive damages is also appropriate to: serve

the objectives of deterrence of continued

constitutional violations; comply with policies;

and practice reasonable judgement as to define

actual “sexual conduct” and “obscene material”

as defined by law and Florida statute.

34.) Nominal damages. Nominal damages are

appropriate when defendants violate a

fundamental constitutional right. See Hughes v.

35a

Lott, 350 F. 3d 1157, 1162 (11th Cir. 2003); see

also Carey v. Piphus, 435 U.S. 247, 266-67, 98

S.Ct. 1042, 1053-54, 55 L. Ed. 2d 252 (1978)

(concluding that plaintiff could be compensated

with nominal damages for procedural due

process violations even absent proof of actual

injury). “Nominal damages are appropriate in

the context of a First Amendment violation.” See

KH Outdoors, LLC v. City of Trussville, 465 F. 3d

at 1261 (11th Cir. 2006).

35.) A jury trial on all issues triable by jury, and

36.) Any additional relief this court deems just,

proper, and equitable.

Respectfully submitted this 10th day of August 2015.

/s/ Jesse Loor pro se

Jesse Loor #10-75184

13850 N.W. 41 St.

Miami, Florida 33178

36a

VERIFICATION

I have read the foregoing compliant and hereby verify

that the matters alleged therein are true excepts as to

the matters alleged on information and belief, and as

to those, I believe them to be true. I certify under

penalty of perjury that the foregoing is true and

correct.

Executed at Miami Florida on August 10, 2015.

/s/ Jesse Loor

Jesse Loor #10-75184

13850 N.W. 41 St.

Miami, Florida 33178

CERTIFICATION OF SERVICE

I hereby certify that a true and correct handwritten

copy of this complaint was hand delivered to facility

counselor for delivery to Clerk’s Office, Dade County

Courthouse (05) Room 133, 73 West Flagler St.

Miami, FL. 33130 this 23rd day of September 2015.

/s/ Jesse Loor pro se

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.