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Case 2:10-cv-00547-JES-DNF Document 181 Filed 09/19/13 Page 1 of 37 PageID 952

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

Case No: 2:10-cv-547-Ftm-29DNF

Plaintiff,


JONATHAN KYLE LEWIS,


v.

SECRETARY, DOC and JOHN E.
POTTER,


____________________________/


Defendants.

OPINION AND ORDER

This matter comes before the Court upon review of the file.
Jonathan Kyle Lewis (“Plaintiff”), a prisoner currently confined
at Florida State Prison in Raiford, Florida, initiated this
action by filing a civil rights complaint pursuant to 42 U.S.C.
§ 1983 (Doc. 1, filed September 3, 2010). Plaintiff's Third
Amended Complaint is presently before the Court (Doc. 95, filed
October 3, 2012). Plaintiff's Third Amended Complaint relates
to events surrounding the distribution and collection of mail at
Charlotte Correctional Institution in Charlotte County, Florida.
Plaintiff names Michael D. Crews, Secretary of the Florida
Department of Corrections (“Defendant Secretary”) and John E.
Potter,
as
defendants.

Postmaster”)

(“Defendant

Postmaster

General

Defendant Secretary has filed a motion to dismiss
Plaintiff's Third Amended Complaint in its entirety for failure

Case 2:10-cv-00547-JES-DNF Document 181 Filed 09/19/13 Page 2 of 37 PageID 953

to state a claim. Plaintiff has not filed a response to the
motion, despite being granted one extension of time in which to
do so.1 The motion is ripe for review.
I. LEGAL STANDARDS

a. Standard of review for a motion to dismiss
On a motion to dismiss, this Court accepts as true all the
allegations in the complaint and construes them in the light
most favorable to the plaintiff. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this
Court favors the plaintiff with all reasonable inferences from
the allegations in the complaint. Stephens v. Dep't of Health &
Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)("On a motion
to dismiss, the facts stated in [the] complaint and all
reasonable inferences therefrom are taken as true."). However,
the Supreme Court explains that:

While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's
obligation to provide the grounds of his
entitlement to relief requires more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of


1 Plaintiff sought additional extensions of time to respond,
arguing that he wished to wait until Defendant Postmaster filed
his own motion to dismiss before responding (Doc. 171). In
denying Plaintiff's motion, the Court noted that Plaintiff had
filed numerous other pleadings during the time he had to respond
and that there was no guarantee that Defendant Postmaster would
file a motion to dismiss (Doc. 172). Even so, the Court granted
a two-week extension, and Plaintiff was cautioned that no
further extensions would be granted. Id.



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action will not do. Factual allegations must
be enough to raise a right to relief above
the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 54491 U.S. 585
(2007)(internal citations omitted). Further, courts are not
"bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). In
the case of a pro se action, the Court should construe the
complaint more liberally than it would pleadings drafted by
lawyers. Hughes v. Rowe, 449 U.S. 5, 9 (1980).

b. Standards under 28 U.S.C. § 1915A
Because Plaintiff filed this action against a governmental
entity and employees of a governmental entity while
incarcerated, the Court is required to screen his action under
28 U.S.C. § 1915A(b). Section 1915A provides that:

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. . . . On review, the court shall . .
. dismiss the complaint, or any portion of
the
is
frivolous, malicious, or fails to state a
claim upon which relief may be granted; or
seeks monetary relief from a defendant who
is immune from such relief.

complaint,

complaint

if

the

28 U.S.C. § 1915A(a), (b)(1) & (2). Section 1915A requires that
prisoner complaints be screened in the same manner as under §
1915(e)(2)(B) regardless of whether the filing fee has been
paid. Martin v. Scott, 156 F.3d 578, 579 (5th Cir.



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1998)(recognizing that § 1915A “applies to any suit by a
prisoner against certain government officials or entities
regardless of whether that prisoner is or is not proceeding
IFP.”). In essence, § 1915A is a screening process to be
applied sua sponte and at any time during the proceedings.

The phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical phrase in
Federal Rule of Civil Procedure 12(b)(6). Therefore, the
standards that apply to a dismissal under Fed. R. Civ. P.
12(b)(6) apply to a dismissal under § 1915A(b)(1). See Leal v.
Georgia Dep’t of Corr., 254 F.3d 1276, 1278–79 (11th Cir.
2001)(noting that the language in § 1915A(b)(1) mirrors the
language in 28 U.S.C. § 1915(e)(2)(B)(ii), which tracks the
language in Rule 12(b)(6)).
II. BACKGROUND

a. Procedural History
Plaintiff initiated this action by filing a complaint with

this Court on September 3, 2010 (Doc. 1). Plaintiff did not
proceed in forma pauperis and paid his filing fee on September
20, 2010. Plaintiff filed an amended complaint on March 11, 2011
(Doc. 56). Plaintiff filed his second amended complaint on June
13, 2011 (Doc. 62). Plaintiff filed a third amended complaint
on October 3, 2012 (Doc. 95).



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On July 29, 2013, Defendant Secretary filed a motion to
dismiss Plaintiff’s Third Amended Complaint (Doc. 145). In the
motion, Defendant Secretary argued, inter alia, that the Third
Amended Complaint should be dismissed because Plaintiff had not
fully disclosed his litigation history (Doc. 145 at 15). On
August 6, 2013, the Court ordered Plaintiff to show cause why
his Third Amended Complaint should not be dismissed for his
failure to reveal his prior litigation history (Doc. 168).
Plaintiff did not respond to the Court’s show cause order.
Plaintiff was ordered to respond to Defendant Secretary’s

motion to dismiss by August 20, 2013 (Doc. 145). The time for
Plaintiff's response was extended until September 3, 2013, and
in the order granting the extension, Plaintiff was warned that
no further extensions of time to file a response would be
granted (Doc. 172). Plaintiff did not file a response to
Defendant Secretary’s motion to dismiss, instead filing twenty-
four unrelated “Affidavits of Jonathan Lewis” or “Notic[es] to
the Court”. (Docs. 147-165, 175-179.)







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b. Complaint2

In his third amended complaint, Plaintiff alleges that he
has sent several complaints to the Postmaster General over the
years alleging that state officials “constantly violate [his]
mail” in violation of his right to association (Doc. 95 at ¶ 2).
Plaintiff alleges that he has spoken to several other inmates
who assert that these violations have been ongoing “for years.”

2 The facts, as alleged in the Third Amended Complaint are
accepted as true. However, the complaint is disjointed, with
certain paragraphs presenting an incoherent and jumbled
narrative that fails to articulate specific acts by the
defendants that Plaintiff believes give rise to constitutional
violations. For example, paragraph 19 alleges in its entirety:


The time is each prison on the shift routine
mail and publications is passed out and when
routine mail is picked up by the officers
and the place is Okeechobee CI, Charlotte
CI, Florida State Prison, and Union CI and
the date is each day at each prison when
mail and publications is dealt with by the
mailroom of the officers and each prison has
the shift this happens and the mailroom is
there on the administrative shift which is
at Okeechobee CI 6am to 2pm and Charlotte CI
7am to 3pm and Florida State Prison 8am to
4pm and Union CI 8am to 4pm and the mail is
picked at Okeechobee on the 2pm to 10pm
shift and Charlotte CI 3pm to 11pm and
Florida State prison and Union CI 8am to 4pm
shift.

portions

(Doc. 95 at ¶ 19.) The Court will not speculate as to the
constitutional violations Plaintiff is alleging in the
incoherent
Complaint.
Accordingly, to the extent Plaintiff intended to raise
additional claims or allege additional facts not considered by
the Court in this Order, such claims are dismissed pursuant to
Rules 8 and 12 of the Federal Rules of Civil Procedure and 28
U.S.C. § 1915A(b)(1).

Amended

of

his

Third



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Id. at ¶ 4. Plaintiff has also read other lawsuits against the
FDOC regarding mail service. Id. at ¶ 6.

Plaintiff asserts that the lack of “Code Title 39”
protection for state inmate mail is a violation of his
constitutional rights. Id. at ¶ 5. Specifically, Plaintiff
alleges that Code 39 does not authorize “the state officials to
assume the duties of the post office because the state officials
don’t know that they can go to jail for mail and publication
violations that is on purpose in which resulted in ongoing mail
and publications violations[.]” Id. at ¶ 7.

Plaintiff alleges that the officers at the prisons do not
have authority to deal with incoming mail, and that his First
Amendment rights are violated by the officers’ handling of
Plaintiff's incoming and outgoing mail (Doc. 95 at ¶¶ 8, 9, 11).
Plaintiff also alleges that the FDOC improperly rejects or
impounds mail, in violation of Plaintiff's First Amendment right
to association. Id. at ¶ 10. Plaintiff asserts that “the state
officials on several occasions at Charlotte CI and other prison
I [sic] been to they are violating my mail and publications and
there is nothing my snitching nigger ass can do about it because
I can only send and receive what they let me.” Id. at ¶ 30.
Accordingly, Plaintiff asserts that the officers at the prisons
should no longer be allowed to touch his mail. Id. at ¶ 13.



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Plaintiff alleges that there is no paper trail for incoming
and outgoing mail which is a violation of his First Amendment
rights (Doc. 1 at ¶ 12). Plaintiff also argues that his First
Amendment rights are violated because “all mail needs to be
opened in the presence of the inmate to prevent mail and
publication theft and lies [about] inmates by employees[.]” Id.
at ¶ 14.

Plaintiff asserts that the mailroom charges inmates for
legal mail and for mail that is sent to Florida addresses (Doc.
95 at ¶¶ 15, 16). Plaintiff alleges that “all legal and
privilege[d] mail is suppose[d] to be sent on a list with a
paper trail and this is a violation of my U.S. Constitution 1st
Amendment right to association since I never receive the legal
and privilege mail I sent out for.” Id. at ¶ 17.

Plaintiff alleges that he has wasted money on stationary,
pens, paper, envelopes, and stamps because the state officials
throw his mail away. Plaintiff also claims that state officials
are “taking contents out of it then sending it out, putting
foreign liquids on it, tearing the papers in the envelope,
scratching my name off with a pen and putting another name on
the letter/envelope at the Charlotte CI [.]” (Doc. 95 at ¶ 18).

Plaintiff asserts that the FDOC does not take mail and
publication violations seriously, nor will they admit that it is
a “real problem” so the officials continue to steal his mail and



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publications (Doc. 95 at ¶ ¶ 23, 25). Because there are no laws
to protect his mail, there is nothing to stop the officers from
abusing their power. Id. at ¶ 28.

Plaintiff asserts that all mail must be sealed in his face
to prevent the violation of his First Amendment rights and that
his constitutional rights are violated because “inmates see
outgoing mail first since I am the one putting it out and see
incoming mail and publications last.” (Doc. 95 at ¶¶ 27, 29).
Plaintiff argues that the mail policy at Charlotte Correctional
Institution serves no penological interest and is a violation of
the standards of decency. Id. at ¶ 31.

As relief, Plaintiff seeks: a declaration from Defendants
stating that the violations are ongoing and explaining why no
action was taken sooner; a declaration of Plaintiff's rights and
the corrections the postmaster will do to ensure that
Plaintiff's rights are protected; a jury trial on the merits of
Plaintiff's case; all other relief the Court deems necessary;
all fees associated with filing the case; a permanent injunction
stating that the postmaster general must investigate the FDOC
and go to each prison to talk with inmates and submit reports to
the court; an investigation of the Florida Administrative Code
to determine whether the mail and publication rules of the code
provide the FDOC an opportunity for the state officials to steal
Plaintiff's mail and publications; a permanent injunction



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stating that the Florida Department of Corrections must meet
with the postmaster general, the Florida Attorney General, the
United States Department of Justice, the United States Senate,
the United States House of Representatives, the governor of
Florida, and the Florida Department of Law enforcement to pass
laws in Florida and in other states to ensure that state inmates
have Title 39 protection; a permanent injunction stating that
the Postmaster General will take complaints from inmates
seriously; a permanent injunction stating that state officials
will no longer handle inmate mail; a permanent injunction that
state officials will take seriously grievances dealing with mail
and publications; a permanent injunction that state officials
will not lie to reject or impound mail and publications; a
permanent injunction stating that the Postmaster General will
formally warn the FDOC that misconduct dealing with mail and
publications will result in serious administrative action; a
permanent injunction stating that the FDOC will no longer place
liens on inmate accounts for legal mail and will still send out
extremely heavy mail; a preliminary injunction stating that
Plaintiff is excused from exhausting his issues until thirty
days after being notified of a deficiency; a refund of all money
spent on stationary, stamps, envelopes, paper, and pens since
January 19, 2004; a permanent injunction stating that officials
from the FDOC may no longer touch Plaintiff's mail; a permanent



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injunction stating that there will be a paper trail on all
outgoing legal and privileged mail and on all routine mail; a
permanent injunction requiring the postmaster general to
investigate every prison in the United States to ensure that
“nothing illegal is happening with mail and publications and do
reports etc. every four months.” (Doc. 95 at 16-20).

c. Defendant Secretary’s Motion to Dismiss
Defendant Secretary has filed a motion to dismiss
Plaintiff's Third Amended Complaint on the grounds that: (1)
Plaintiff's claims against FDOC employees are frivolous; (2)
Plaintiff has failed to exhaust his administrative remedies in
regard to his claims that the Florida Department of Corrections
should have different rules concerning inmate mail; (3)
Plaintiff's conclusory allegations regarding FDOC employee
handling of his mail fail to state a claim upon which relief may
be granted; (4) any claim for monetary damages is barred by the
Eleventh Amendment; (5) Plaintiff has failed to state a claim
for the violation of his right to free association under the
First Amendment; and (6) Plaintiff failed to fully disclose his
litigation history and did not comply with Court orders
regarding his numerous “emergency” pleadings (Doc. 145).
III. ANALYSIS

To state a claim under § 1983, a plaintiff must allege
that: (1) a violation of a specific constitutional right or



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federal statutory provision; (2) was committed by a person
acting under color of state law. Doe v. Sch. Bd. of Broward
County, Fla., 604 F.3d 1248, 1265 (11th Cir. 2010). Construing
Plaintiff's claims in a liberal fashion, the Court determines
that he seeks damages and injunctive relief from the defendants
because (1) state FDOC officials, rather than federal postal
employees, are allowed to handle his mail; (2) he has been
charged postage on his legal and non-legal mail; (3) his
incoming and outgoing mail has been tampered with or destroyed;
and (4) his incoming and outgoing mail is subject to inspection
outside of his presence.

a. Plaintiff's claims for monetary relief against
Defendant Secretary and Defendant Postmaster are
barred by sovereign immunity


Plaintiff has sued both defendants in their official and
individual capacities (Doc. 95 at 1). In his prayer for relief
Plaintiff seeks, inter alia, monetary relief as compensation for
money he has spent on mail supplies and on legal fees pursuing
this case (Doc. 95 at ¶ 18). Defendant Secretary argues that,
because the Florida Department of Corrections (“FDOC”) is an
agency of the State of Florida, any claim for monetary damages
is barred by the Eleventh Amendment (Doc. 145 at 12). The Court
agrees that Plaintiff's claims for monetary damages against
either defendant are subject to dismissal.



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Plaintiff's official capacity claims for damages against
Defendant Secretary are barred by the Eleventh Amendment.
“Absent a legitimate abrogation of immunity by Congress or a
waiver of immunity by the state being sued, the Eleventh
Amendment is an absolute bar to suit by an individual against a
state or its agencies in federal court.” Gamble v. Fla. Dep't of
Health and Rehabilitative Servs., 779 F.2d 1509, 1511 (11th Cir.
1986); Will v. Mich. Dep't of State Police, 491 U.S. 58, 66
(1989)(“Section 1983 provides a federal forum to remedy many
deprivations of civil liberties, but it does not provide a
federal forum for litigants who seek a remedy against a State
for alleged deprivations of civil liberties. The Eleventh
Amendment bars such suits unless the State has waived its
immunity, or unless Congress has exercised its undoubted power
under § 5 of the Fourteenth Amendment to override that
immunity.” (citations omitted)). A suit against a state
employee in his or her official capacity is deemed a suit
against the state for Eleventh Amendment purposes. Will, 491
U.S. at 71; Gamble, 779 F.2d at 1512 (holding that the Eleventh
Amendment “will bar damage awards against state officers sued in
their official capacities in suits brought in federal court
pursuant to 42 U.S.C.A. § 1983.”).

As Plaintiff's official capacity claims against Defendant
Secretary seek monetary relief against the State of Florida,



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which is immune from such relief, Plaintiff's claims for
monetary damages against Defendant Secretary in his official
capacity are dismissed for failure to state a claim. Fed. R.
Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(2).3

Likewise, Plaintiff's official capacity claims against
Defendant Postmaster must also be dismissed. Plaintiff's
lawsuit against John E. Potter, in his official capacity as the
Postmaster General, is a lawsuit against his agency, the United
States Postal Service. See Kentucky v. Graham, 473 U.S. 159,
165-66 (1985). In Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme
Court held that a person injured by a violation of his
constitutional rights by a federal agent may bring an action for
damages against the agent.4 In this action, Plaintiff seeks to
bring a Bivens constitutional claim for damages against

3 Generally, injunctive relief against the State may be available
in a suit challenging the constitutionality of a state
official’s action or the state official’s violation of federal
law. See Ex Parte Young, 209 U.S. 123 (1908); Edelman v. Jordan,
415 U.S. 651 (1974). However, to the extent that Plaintiff now
claims Defendant Secretary is subject to injunctive relief due
to a violation of state law, such a claim would be barred by
Eleventh Amendment immunity. See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89 (1984).

4 Because 42 U.S.C. § 1983 applies only to state, not federal,
actors, an action against Defendant Postmaster is not cognizable
under § 1983. However, given that Plaintiff filed his complaint
as a pro se litigant, the Court will liberally construe his
claims against the Postmaster General as an attempt to state a
cause of action under Bivens.




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Defendant Postmaster in his official capacity, which is merely a
claim against the United States Postal Service. In F.D.I.C. v.
Meyer, 510 U.S. 471, 484-86 (1994), the Supreme Court held that
a Bivens action does not lie against a federal agency. The
Postal Service is an “independent establishment of the executive
branch of the Government of the United States,” and it retains
its governmental status. U.S.P.S. v. Flamingo Indus.(USA), Ltd.,
540 U.S. 736, 744 (2004). Accordingly, the holding of Meyer is
applicable to the United States Postal Service and it bars the
claims for damages that Plaintiff asserts against the Postal
Service in this action. All claims for damages against
Defendant Postmaster General in his official capacity are
dismissed for failure to state a claim upon which relief can be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(2).

allowed to collect and deliver inmate mail

b. Under federal and state rules, prison officials are

Plaintiff asserts that the FDOC officers at the prisons
have no authority to deal with incoming mail and that his First
Amendment rights are violated by the officers’ handling of his
incoming and outgoing mail (Doc. 95 at ¶¶ 8,9,11,20). Plaintiff
claims that, because “nothing authorizes state officials to deal
with mail[,] the post office is supposed[d] to be passing it out
and picking it up from our hand[.]” Id. at ¶ 20. Plaintiff also
asserts that the FDOC has no rules for handling mail, and as a



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result the officers “do as they want with mail and
publications.” (Doc. 95 at ¶¶ 9, 11).

In response, Defendant Secretary submits that state
officials may act as agents of the United States Postal Service
regarding delivery of an inmate’s mail pursuant to United States
postal regulations which clearly allow a correctional
institution to deliver mail in accordance with the institution’s
rules (Doc. 145 at 6-7). Defendant also notes that Florida
Statute § 944.09(1)(g) requires the FDOC to promulgate rules
relating to the delivery of mail which are set forth in the
Florida Administrative Code (Doc. 145 at 7). A review of
federal and state regulations regarding the delivery of mail at
prisons supports Defendant’s position.5

Pursuant to section 274.96 of the United States Postal

Service Administrative Support Manual:

Authorized personnel of prisons, jails, or
other correctional institutions, under rules
and
the
institution, may open, examine, and censor

promulgated

regulations

by


5 The court can take judicial notice of facts that are not
subject to reasonable dispute. Fed. R. Evid. 201(b). These facts
are generally known within the territorial jurisdiction of the
court or they are capable of ready determination by resort to
sources whose accuracy cannot reasonably be questioned. Id. The
Court is satisfied that the material contained in the United
States Postal Operations Manual, The United States Postal
Service Administrative Support Manual, and the Florida
Administrative Code contain adjudicative facts that are “not
subject to reasonable dispute” and are “capable of accurate and
ready determination.” Id. Accordingly, the Court takes judicial
notice of these documents.



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mail sent from or addressed to, an inmate of
the institution. An inmate may designate in
writing an agent outside the institution to
receive his or her mail, either through an
authorized address of the agent, if the mail
is so addressed, or at the delivery Post
Office serving the institution, if the mail
is addressed to the inmate at the
institution.

§ 274.96 (2009) (emphasis added). Moreover, the Postal
Operations Manual of the United States Post Office states that
“[m]ail addressed to inmates at institutions is delivered to the
institution authorities who, in turn, deliver the mail to the
addressee under the institution’s rules and regulations.” United
States Postal Operations Manual § 615.1 (2009).

In addition, contrary to Plaintiff's assertions otherwise,
the Florida Administrative Code provides extensive rules
regarding how state prisons must handle the inmate’s incoming
and outgoing legal and routine mail. See Fla. Admin. Code R. 33-
210.101 (Routine Mail); 33-210.102 (Legal Mail). Accordingly,
any claim based upon FDOC prison official’s unauthorized
delivery and collection of mail lacks a factual basis and is
dismissed for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(B)(1).


c. Plaintiff is not entitled to free postage
Plaintiff asserts that his constitutional rights are

violated because he is charged postage for first class letters
to Florida addresses and because liens are placed on prisoner



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accounts for the costs of legal mail (Doc. 95 at ¶ 15).
Defendant Secretary asserts that any argument by Plaintiff that
he is exempt from paying for his legal postage despite having
ample funds in his inmate account is “frivolous and merits
dismissal as such without further discussion.” (Doc. 145 at 8
n.4). The Court concludes that Plaintiff has not stated a claim
upon which relief may be granted in regards to the prison
charging postage costs for legal or routine mail.

Pursuant to the Florida Administrative Code, an indigent
inmate is provided free postage for one first class routine
letter per month. Fla. Admin. Code R. 33-210.101(17). Any
argument that a prisoner’s First Amendment rights are violated
by the prison’s provision of only one free letter per month for
non-legal mail was foreclosed by the Eleventh Circuit in Van
Poyck v. Singletary, 106 F.3d 1558, 1559 (11th Cir. 1997)
(“[L]imiting indigent prisoners to writing materials and postage
for one letter per month is not unconstitutional, since
prisoners do not have a right to free postage for nonlegal
mail.”). Accordingly, because indigent prisoners do not have a
right to unlimited free postage for non-legal mail, any claim
based upon such an assumption fails as a matter of law and
warrants dismissal.

Nor has Plaintiff stated a claim that his constitutional
rights were violated due to the prisons’ requirement that he pay



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for legal postage. In regards to legal mail, the Florida
Administrative Code states:

The institution shall furnish postage for
[legal mail], for pleadings to be served
upon each of the parties to a lawsuit and
for mailing a complaint to the Florida Bar
concerning ineffective assistance of counsel
in the inmate’s criminal case for those
inmates who have insufficient funds to cover
the cost of mailing the documents at the
time the mail is submitted to the mailroom,
but not to exceed payment for the original
and two copies except when additional copies
are legally required.

§ 33-210.102(10)(a)(emphasis added). The Code further states
that a lien will be placed on an inmate’s account “to recover
postage costs when the inmate receives funds.” Id.

In Bounds v. Smith, the United States Supreme Court
determined that “indigent inmates must be provided at state
expense with paper and pen to draft legal documents[,] with
notarial services to authenticate them, and with stamps to mail
them.” 430 U.S. 817, 824-25 (1977), overruled on other grounds,
Lewis v. Casey, 518 U.S. 343, 354 (1996). However, Plaintiff
has not alleged that he was indigent at the time he filed his
complaint or at any relevant time he mailed a legal letter.6 See
Hargrove v. Henderson, Case No. 95-1601-CIV-T-17A, 1996 WL
467516 at *10 (M.D. Fla. 1996) (“[I]t is beyond question that


6 Plaintiff wrote his original Complaint on September 3, 2010
(Doc. 1). At the time Plaintiff filed his first complaint, he
had $5,967.03 in his prisoner account. See Doc. 32-1.



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Plaintiff has no right to free postage when he has the financial
ability to pay his own way.”). Moreover, § 33-210.102(10)(a)
does not deny any prisoner the right to send or receive legal
mail; rather, all legal mail is accepted for posting and a lien
is created against the prisoner’s account for the costs of
mailing legal documents. The FDOC has fulfilled its affirmative
duty under Bounds to provide indigent prisoners access to the
courts. See Hoppins v. Wallace, 751 F. 3d 1161, 1162 (11th Cir.
1985)(determining that the rights of prisoners must be balanced
with budgetary constraints and noting that states are not
required “to pay the postage on every item of legal mail each
and every prisoner wishes to send.”)(quoting Twyman v. Crisp,
584 F.2d 352, 259 (10th Cir. 1978)). Accordingly, Plaintiff's
claim that his constitutional rights were violated because the
prison did not provide him with free legal postage warrants
dismissal for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 12(b)(6); 28 U.S.C. § 1915A(b)(1).

d. Plaintiff has not stated a claim for a constitutional

violation of his right to send or receive mail


Plaintiff generally asserts that “mail and publication
violations [have] been going on for years” at Charlotte
Correctional Institution (Doc. 95 at ¶ 9). He also asserts that
“[t]he mailroom in the Florida D.O.C. lies to reject or impound
mail and publications[.]” Id. at ¶ 10. Plaintiff alleges that



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the officials mishandle his outgoing mail by throwing it away,
taking its contents out, putting foreign liquids on it, tearing
the papers in the envelope and scratching his name off with a
pen and putting another name on the letter (Doc. 95 at ¶ 18).
He states that he has “experience[d] this on several occasions,”
but provides no specific dates or instances of mail tampering
(Doc. 95 at ¶ 10).

Defendant Secretary argues that Plaintiff has not stated a
claim under the standards set forth in Ashcroft v. Iqbal because
he makes nothing but vague and conclusory allegations against
officials at the prison (Doc. 145 at 10). Defendant Secretary
argues that Plaintiff has not provided any specific instances or
dates of alleged tampering or identified any official who has
done anything improper with Plaintiff's mail (Doc. 145 at 11).
Finally, the defendant asserts that Plaintiff's lack of detail
“forecloses the possibility of responding to Plaintiff's Third
Amended Complaint with an Answer, as Plaintiff's general
conclusory allegations cannot be meaningfully investigated or
verified by Defendant Crews.” (Doc. 145 at 11). The Court agrees
that Plaintiff has not stated a claim upon which relief may be
granted.7


7 To the extent that Plaintiff now asserts that the mere handling
of his mail by a prison official amounts to “tampering,” such a
claim is without merit because federal and state law



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1. Plaintiff has not satisfied the pleading
requirements of Rule 8 of the Federal Rules of
Civil Procedure



Rule 8 of the Federal Rules of Civil Procedure requires
that a plaintiff include a “short and plain statement of the
claim showing that the pleader is entitled to relief[.]”
Although Plaintiff is not required to provide detailed factual
allegations, his second amended complaint fails to provide
enough facts, which, if accepted as true, would raise his right
to relief above a speculative level or state a plausible claim
for relief. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at
678. Plaintiff's claims against any particular person, much
less Defendant Secretary and Defendant Postmaster General, are
too conclusory and vague to satisfy Rule 8 or the pleading
standards set forth in Twombly and Iqbal. Indeed, Plaintiff
fails to allege a single specific unconstitutional act committed
by any specific individual.

2. Plaintiff has not stated a claim for respondeat
superior liability against Defendant Secretary or
Defendant Postmaster



Plaintiff generally alludes that prison officials have
destroyed, damaged, or otherwise improperly handled his mail
(Doc. 195 at ¶ 18). To the extent that Plaintiff now argues that
the defendants are vicariously liable for the actions of the


specifically provide for prison officials to handle inmate mail.
See discussion supra Part III(b).



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prison officials, such a claim fails as a matter of law.
Supervisory officials cannot be held liable under § 1983 for the
unconstitutional actions of their subordinates based upon
respondeat superior liability. Gray ex rel. Alexander v. Bostic,
458 F.3d 1295 (11th Cir. 2006); Monell v. Dep't of Social
Servs., 436 U.S. 658, 691–95 (1978)(doctrine of respondeat
superior is inapplicable to § 1983 actions). Instead,
supervisors can be held personally liable only when: (1) the
supervisor personally participates in the alleged constitutional
violation; or (2) there is a causal connection between the
actions of the supervisor and the alleged constitutional
violation. Id. Plaintiff does not claim that either defendant
was personally involved in tampering with his mail. Therefore,
Plaintiff must show a “causal connection” between the
defendants’ actions and the alleged constitutional violations.
Such a causal connection may be established by showing that a
supervisory official implemented, or allowed to continue, an
official policy or unofficial policy or custom under which the
violation occurred. Zatler v. Wainwright, 802 F.2d 397, 401
(11th Cir. 1986). Plaintiff must show that the supervisor's
knowledge amounted to deliberate indifference to the asserted
harm or risk in that his knowledge was “so pervasive that the
refusal to prevent harm rises to the level of a custom or policy



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of depriving inmates of their constitutional rights.” Tittle v.
Jefferson County Comm'n, 10 F.3d 1535, 1541–42 (11th Cir. 1994).

Plaintiff does not point to a specific custom or policy
that deprived him of his constitutional rights, but argues
instead that “all mail needs to be opened in the presence of the
inmate to prevent mail and publication theft and lies on inmates
by the employees since I have a right to association in
compliance with the U.S. Constitution.” (Doc. 95 at ¶ 14).
Plaintiff also makes the general assertion that “[a]ll mail must
be sealed in [sic] me and other inmates face to discontinue the
violations of my U.S. Constitution 1st Amendment” (Doc. 95 at ¶¶
14, 27). Neither assertion implicates an unconstitutional policy
of the FDOC or the United States Post Office. Specifically, the
Florida Administrative Code has two provisions that deal with
FDOC official’s ability to inspect mail.

i. Under Florida Administrative Code Rule 33-
210.102(8)(d), all legal mail must be opened
in the presence of the recipient inmate

Code

Rule


Administrative

Florida

33-210.102(8)(d)
specifically provides that “[a]ll incoming legal mail will be
opened in the presence of the inmate to determine that the
correspondence is legal mail and that it contains no
unauthorized items. Only the signature and letterhead may be
read.” The Code further states that “[i]nmates shall present
all outgoing legal mail to the mail collection representative to



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determine, in the presence of the inmate, that the
correspondence is legal mail, bears that inmate’s return address
and signature, and that it contains no unauthorized items.”
Fla. Admin. Code R. 33-210.102(8)(g). Accordingly, to the
extent Plaintiff alleges that the FDOC rules regarding prison
handling of legal mail are unconstitutional because the rules do
not require that the mail be handled in the presence of an
inmate, such a claim lacks a factual basis and is without merit.
See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Al-Amin v.
Smith, 511 F.3d 1317 (11th Cir. 2008).

Moreover, “[w]hile a prisoner has a right to be present
when his legal mail is opened . . . an isolated incident of mail
tampering is usually insufficient to establish a constitutional
violation . . . Rather, the inmate must show that prison
officials ‘regularly and unjustifiably interfered with the
incoming legal mail.’” Davis v. Goord, 320 F.3d 346, 351 (2d
Cir. 2003) (citations and quotations omitted); Al-Amin v. Smith,
511 F.3d 1317, 1334 (11th Cir. 2008)(a state prison's “pattern
and practice” of opening attorney mail outside the inmate's
presence impinges upon the inmate's right to freedom of speech).
Plaintiff has not provided facts of any specific instance in
which his own, or any other inmate’s, legal mail was opened
outside of his or the inmate’s presence, much less a “custom or
policy of depriving inmates of their constitutional rights” in



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this regard. Tittle, 10 F.3d at 1541-42. Because Plaintiff fails
to allege that either defendant “regularly and unjustifiably”
opened his legal mail outside of his presence or otherwise
interfered with his legal mail, he has not stated a
constitutional claim for a violation of his First Amendment
right to send or receive legal mail.

ii. Because Plaintiff has no constitutional
right to send or receive non-legal mail
without FDOC review, Florida Administrative
Code
not
unconstitutional

33-201.101(5)

Rule

is



Next, in contrast to the Florida Administrative Code
provision pertaining to legal mail, Rule 33-201.101(5) states
that “[a]ny routine mail sent or received shall be opened,
examined, and is subject to being read by a designated
employee.” The Code specifically lists items that may not be
included in incoming or outgoing routine mail including
correspondence that encourages or instructs in the commission of
criminal activity or material that may be considered obscene.
Fla. Admin. Code R. 33-201.101(11).

Prisoners have a First Amendment right to send and receive
mail. See Thornburgh v. Abbot, 490 U.S. 401, 407 (1989).
However, a prison may adopt regulations that impinge on a
prisoner’s First Amendment rights as long as the regulations are
“reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner standard



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applies to regulations concerning incoming mail received by
prisoners. Thornburgh, 490 U.S. at 413. The Court concludes
that the FDOC practice of inspecting a prisoner’s non-legal
incoming and outgoing mail is reasonably related to a
penological interest under Turner.

are

considered

in

Four

factors

determining

the
reasonableness of a prison regulation: (1) whether there is a
“‘valid, rational connection’ between the prison regulation and
the legitimate governmental interest put forward to justify it”;
(2) “whether there are alternative means of exercising the right
that remain open to prison inmates”; (3) “the impact
accommodation of the asserted constitutional right will have on
guards and other inmates and on the allocation of prison
resources generally”; and (4) the “absence of ready
alternatives”, or, in other words, whether the rule at issue is
an ‘exaggerated response’ to prison concerns.” Turner, 482 U.S.
at 89–90 (citations omitted).

Notably, Rule 33-201.101(5) does not prohibit inmates from
sending or receiving non-legal mail, it only requires that the
mail be inspected for illegal or otherwise prohibited material.
However, Plaintiff does not argue that the rules prohibiting
objectionable material are unconstitutional; rather, he argues
that the prison officials should never inspect his non-legal



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mail outside his presence. Accordingly, it is to this assertion
that the Court will apply the Turner test.

A prison has a legitimate security interest in opening and
inspecting incoming mail to inspect for contraband or other
potentially damaging material. See Pell v. Procunier, 417 U.S.
817, 823 (1974)(“[C]entral to all other corrections goals is the
institutional consideration of internal security within the
corrections facilities themselves.”). Requiring each item of
outgoing or incoming non-legal mail to be sealed or opened in
front of the prisoner would increase the burden on prison staff
and “make it more difficult for the already overworked staff and
inspectors to accomplish their other responsibilities in
ensuring a safe and secure prison environment.” Perry v.
Secretary, Fla. Dep’t of Corr., 664 F.3d 1359, 1366 (11th Cir.
2011). Finally, neither Rule 33-201.101(5) nor the prison’s
practice of inspecting non-legal mail outside of the inmate’s
presence is an “exaggerated response” to prison concerns.
Plaintiff has not pointed “to some obvious regulatory
alternative that fully accommodates the asserted right while not
imposing more than a de minimis cost to the valid penological
goal.” Overton v. Bazzetta, 539 U.S. 126, 136 (2003) (citing
Turner, 482 U.S. at 90-91). Accordingly, neither Rule 33-
201.101(5), nor the inspection of an inmate’s non-legal mail



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his

or

a

prisoner's

outside
constitutional rights under the test set forth in Turner.

presence,

violates

her

Moreover, although the constitutionality of inspecting non-
legal mail outside of an inmate’s presence has not been
addressed by the Eleventh Circuit, other circuit courts have
held that, while prison officials are constitutionally required
to open legal mail in the presence of the recipient inmate, no
such requirement exists where the identification of the sender
does not give rise to a reasonable belief that such material is
legal mail and there is no marking indicating that such mail is
confidential. See, e.g., Gassler v. Wood, 14 F.3d 406, 408 n.5
(8th Cir. 1994)(prison officials do not commit constitutional
violations by opening non-legal mail outside of an inmate’s
presence); Martin v. Brewer, 830 F.2d 76, 77 (7th Cir. 1987)(as
a general rule, inmate mail can be opened and read outside the
inmate's presence unless it is marked as legal mail); Altizer v.
Deeds, 191 F.3d 540 (4th Cir. 1999)(the opening and inspecting
of an inmate’s outgoing mail is reasonably related to legitimate
penological interests and therefore, does not violate the First
Amendment); see also Witherow v. Paff, 52 F.3d 264, 265-66 (9th
Cir. 1995) (upholding inspection of outgoing mail); Smith v.
Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991)(upholding inspection



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of incoming mail); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir.
1986)(upholding inspection of outgoing and incoming mail).8

Plaintiff has not alleged that either defendant was
personally involved in any specific instance of mail tampering.
Nor has Plaintiff shown that either defendant implemented, or
allowed to continue, an unconstitutional or illegal policy
regarding the handling of inmate mail. Accordingly, Plaintiff's
claims against Defendant Secretary and Defendant Postmaster are
dismissed for failure to state a claim upon which relief may be
granted. Fed. R. Civ. P. 8, 12(b)(6); 28 U.S.C. § 1915A(b)(1).





8 Although Plaintiff does not attack any other specific provision
of the Florida Administrative Code regulating his incoming and
outgoing mail, the Court notes that the Florida mail provisions
have generally been recognized as satisfying the Turner
standards. See, e.g., Perry v. Secretary, Florida Dep’t of Corr,
664 F.3d 1359 (11th Cir. 2011) (FDOC rule prohibiting inmates
from soliciting pen pals was rationally related to a legitimate
penological interest and so did not violate the First
Amendment); Daniels v. Harris, Case No. 3:11-cv-45(CAR), 2012 WL
3901646 (M.D. Ga. 2012) (postcard-only mail policy did not
violate constitutional rights); Wood v. Vartianen, Case No.
2:02-cv-626-29DNF, 2005 WL 2291723 (M.D. Fla. 2005) (FDOC rule
providing for the exclusion of sexually explicit photographs
mailed to a state prison inmate was reasonable and satisfied the
Turner standards); Richards v. England, Case No. 2:07-cv-758-
29SPC, 2008 WL 5110793 at *1, 5 (M.D. Fla. 2008) (no
constitutional violation on rule prohibiting photographs
depicting scantily clad women); Hall v. Singletary, 999 F.2d
1537 (11th Cir. 1993) (prison rules prohibiting correspondence
between inmates at different facilities does not violate the
Turner rules).




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e. Plaintiff's Third Amended Complaint is subject to
dismissal due to Plaintiff's failure to reveal his
prior litigation history


Defendant Secretary urges that Plaintiff's complaint should
be dismissed for abuse of the judicial process based upon
Plaintiff's failure to reveal his litigation history on his
civil rights complaint form and because of his willful non-
compliance with orders of this Court (Doc. 145 at 15-16).9


9 Defendant Secretary argues that Plaintiff's insistence on
filing “emergency” pleadings despite the Court’s orders
instructing Plaintiff not to do so unless a true or legal
emergency exists, warrants dismissal of Plaintiff's Third
Amended Complaint for abuse of the judicial process (Doc. 125 at
3, 21). Specifically, Defendant notes that Plaintiff was
directed to file an amended complaint on the pre-printed civil
rights complaint form (Doc. 44). Plaintiff did not comply,
instead filing an “Emergency Amended Complaint” on February 3,
2011 (Doc. 51). The Court struck the complaint, determined that
the complaint did not constitute an emergency, and warned
Plaintiff that “improperly designating a motion or pleading as
an ‘emergency’ may result in sanctions.” (Doc. 54). On May 13,
2011, Plaintiff filed an “Emergency Motion to Amend/Correct” his
amended complaint (Doc. 58). Plaintiff's motion to amend was
granted, but the Court noted that the motion was not an
emergency, and Plaintiff was cautioned that he would be
sanctioned in the future if he continued to designate his
pleadings as “emergency” filings (Doc. 59). Plaintiff filed
another “Emergency Motion” on August 1, 2011, seeking copies of
the record (Doc. 66). The Court directed the Clerk to strike
the motion as an improper “emergency” filing and as duplicative
of another motion (Doc. 70). Plaintiff filed an “Emergency
Notice of Inquiry” on June 11, 2012 and a second “Emergency
Notice of Inquiry” on June 18, 2012 (Docs. 87, 89). Plaintiff
filed an “Emergency Belated Motion” for an extension of time to
file an amended complaint on June 29, 2012 (Doc. 91) and
“Emergency Notice to the Clerk” on August 13, 2012 (Doc. 93).
Plaintiff filed an “Emergency Notice of Change of Address” on
December 26, 2012 (Doc. 99). Plaintiff was again cautioned to
only designate pleadings as an emergency when there is a true
emergency (Doc. 100). Plaintiff filed “Emergency” notices to the



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Plaintiff was ordered to respond to this particular ground for
dismissal by August 16, 2013, but has failed to do so (Doc.
168).

Plaintiff signed his Third Amended Complaint on March 23,
2012 (Doc. 95). Plaintiff was questioned in Section III(A) of
the complaint form whether he had initiated other lawsuits in
federal court dealing with similar facts or otherwise relating
to his conditions of imprisonment. Id. at 3. Plaintiff checked
“no”, but listed on the complaint form Middle District of
Florida Case No. 3:11-cv-818-MMH-TEM. Id. However, Plaintiff
failed to report that he had also filed Middle District of
Florida Case Nos. 3:11-cv-383-TJC-MCR and 2:10-cv-705-CEH-DNF
and Southern District of Florida Case No. 0:11-cv-61243-WPD.

Plaintiff also did not honestly answer Section III(D) of
the Complaint which asked whether he had initiated lawsuits or
appeals in federal court that were dismissed as frivolous,

Clerk on January 28, 2013, February 8, 2013, March 11, 2013,
March 18, 2013, and March 25, 2013 (Docs. 107, 108, 109, 112,
116). He filed an “Emergency” notice to the U.S. Marshal’s
Office on March 19, 2013 (Doc. 115). Each of the notices were
stricken due to Plaintiff's improper labeling of the notices as
an emergency (Doc. 119).
Although the Court notes that Plaintiff's continued
designation of his pleadings as “emergency” in the absence of a
true or legal emergency indicates a measure of vexatious
conduct, the Court declines to dismiss his Third Amended
Complaint on this ground. See Flaksa v. Little River Marine
Const. Co., 389 F.2d 885 (5th Cir. 1968) (recognizing that
dismissal of a complaint for failure to abide by court orders is
a drastic remedy limited to only the most vexatious conduct).




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malicious, or failed to state a claim upon which relief may be
granted