United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
pro se, inmate-plaintiff Joseph Martin McRoberts
brings this 42 U.S.C. § 1983 action against "Lt.
Meeks, " one of his jailers. Meeks, he alleges, took his
pen and legal papers away from him in violation of Chatham
County, Georgia jail procedures. Doc. 1 at 5. Meeks did that
on May 18, 2016, and another guard returned those materials
to McRoberts on May 23, 2016. Id. The confiscation
caused plaintiff to become agitated (he says a video will
document this), then be "roughly handled and
restrained" during a[n evidently contemporaneous]
routine cell search, " followed by a "disciplinary
action" that lasted 22 days when it should have been 20.
Id. at 5-6. Plaintiff seeks "emotional
distress" damages, declaratory and injunctive relief,
id. at 7, and appointment of counsel. Doc. 3.
preliminary review,  McRoberts' Complaint must be dismissed
with prejudice. Rough-- as opposed to violent (read: a
beating) -- handling does not cross the Eighth Amendment
line. Not "every malevolent touch by a prison guard
gives rise to a federal cause of action." Hudson v.
McMillian, 503 U.S. 1, 9 (1992). The core judicial
inquiry is "whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Wilkins v. Gaddy,
559 U.S. 34, 37 (2010) (quotes and cite omitted); Valdes
v. Crosby, 450 F.3d 1231, 1236 (11th Cir. 2006).
McRoberts' failure to allege anything more than de
minimis contact plus malice sinks this claim. Porter
v. Shumake, 2016 WL 3923421 at * 10 (S.D. Ga. June 24,
complaint that he suffered two extra days in disciplinary
confinement advances a Due Process claim. Sandin v.
Conner, 515 U.S. 472 (1995), controls:
States may under certain circumstances create liberty
interests which are protected by the Due Process Clause. But
these interests will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life.
Id. at 483-84 (cites omitted); see also Magluta
v. Samples, 375 F.3d 1269, 1282 (11th Cir. 2004)
(recognizing a "new Sandin standard, "
under which there is "no liberty interest and no
constitutional violation ... if the Sandin
'atypical and significant hardship' standard [is] not
met."). Inmate Conner's disciplinary confinement for
30 days was not an atypical or significant hardship in
comparison to ordinary conditions his prison system, and it
did not inevitably increase the duration his sentence, so it
did not implicate a protected liberty interest.
Sandin, 515 U.S. at 486 ("We hold that
Conner's discipline in segregated confinement did not
present the type of atypical, significant deprivation in
which a State might conceivably create a liberty
same must be said here. McRoberts (alleging 22 days) has not
alleged anything atypical, and thus has no actionable Due
Process claim.Rodgers v. Singletary, 142 F.3d
1252, 1253 (11th Cir. 1998) (placement in administrative
confinement for two months insufficient to establish
protected liberty interest under Sandin); Williams v.
Barrow, 2012 WL 1119516 at * 1 (M.D. Ga. Apr. 3, 2012)
(a month "in segregation" is not enough).
"legal documentation" claim at most supports some
sort of access-to-courts claim. An inmate's right to his
own legal papers forms part of that access right. See
Bounds v. Smith, 430 U.S. 817, 828 (1977). A violation
of that right, however, is only actionable upon showing of
actual injury, "such as a denial or dismissal of a
direct appeal, habeas petition or civil rights case that
results from actions of prison officials." Wilson v.
Blankenship, 163 F.3d 1284, 1290-91 (11th Cir. 1998).
McRoberts alleges no such injury, so his claim over the
temporary denial of access to his legal materials fails.
Lewis v. Casey, 518 U.S. 343, 354 (1996); Bass
v. Singletary, 143 F.3d 1442, 1445 (11th Cir. 1998)
(general allegation that prisoners were unable to file proper
pleadings and responses in various, unspecified legal actions
was insufficient to meet the actual-injury requirement).
McRoberts comes nowhere close to pleading facts needed to
support an intentional infliction of emotional distress
claim. See Timmons v. Bryson, 2016 WL 4082710 at * 6
(S.D. Ga. Aug. 1, 2016) ("(1) the conduct must be
intentional or reckless; (2) the conduct must be extreme and
outrageous; (3) there must be a causal connection between the
wrongful conduct and the emotional distress; and (4) the
emotional distress must be severe.") (quotes and cite
omitted). And "[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical
injury. ..." 42 U.S.C. § 1997e(e), quoted in
Floyd v. Sigmon, 2016 WL 3713208 at *3 (N.D. Fla.,
June 9, 2016). McRoberts has alleged no physical injury.
its facial frivolity, plaintiffs Complaint must be DISMISSED
WITH PREJUDICE and a re-pleading option is not warranted.
Dysart v. BankTrust, 516 F.App'x 861, 865 (11th
Cir. 2013) ("[D]istrict court did not err in denying
Dysart's request to amend her complaint because an
amendment would have been futile."); Langlois v.
Traveler's Ins. Co., 401 F.App'x 425, 426-27
(11th Cir. 2010); Simmons v. Edmondson, 225
F.App'x 787, 788-89 (11th Cir. 2007) (district court did
not err in dismissing complaint with prejudice without first
giving plaintiff leave to amend because no amendment could
have overcome the defendants' immunity). Also because of
its frivolity, this case should be recorded as a
"strike" under 28 U.S.C. § 1915(g),
his motion for appointment of counsel (doc. 3) is DENIED.
it is time for plaintiff to pay his $350 filing fee. His
furnished account information shows that he has had a $0.00
average monthly balance and $0.00 in monthly deposits in his
prison account during the past six months. Doc. 6. He
therefore owes no initial partial filing fee. See 28
U.S.C. § 1915(b)(1) (requiring an initial fee assessment
"when funds exist, " under a specific 20 percent
formula). But plaintiffs custodian (or designee) shall set
aside 20 percent of all future deposits from his account and
forward same to the Clerk each time the set aside amount
reaches $10.00, until the balance of the Court's $350.00
filing fee has been paid in full.
Clerk is DIRECTED to send this Report and Recommendation
(R&R) to McRoberts' account custodian immediately. In
the event he is transferred to another institution,
plaintiffs present custodian shall forward a copy of this
R&R and all financial information concerning payment of
the filing fee and costs in this case to plaintiffs new
custodian. The balance due from the plaintiff shall be
collected by the custodian at his next institution in
accordance with the terms of this R&R.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned "Objections to Magistrate Judge's Report
and Recommendations." Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
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