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 one of his
jailers -- Mrs. C. Crosseley, "Administrator of
Commissary Department." Doc. 1 at 5. The Chatham County,
Georgia jail in which McRoberts is detained uses a
"Kiosk Machine" to enable inmates to communicate
grievances and "postage requests." Id. at
6. Despite this handy method, Crosseley "has specified
that all [postage] requests must be put on paper order forms.
..." Id. Plaintiff has complied but some
requests have been "misplaced, " causing him delay.
"Through such actions, " he alleges, "I have
missed a motions hearing and have been unable to get
documents in on a timely manner." Id. "The
denial of such postage has severely hindered my pending
"emotional distress" and violations of his
"1st and 6th Amendments" rights, doc. 1 at 6-7,
McRoberts pursues nominal, compensatory and punitive damages,
plus injunctive relief. Id. at 7. He also seeks
appointment of counsel and attorney fees. Id.;
are constitutionally guaranteed access to the courts. States
must supply indigent inmates with a law library or legal
assistance program, in addition to the means by which they
may access the courts (pens, postage, notarial services, and
so forth). Bounds v. Smith, 430 U.S. 817, 824-25
(1977); Bey v. Haines, 2016 WL 492316 at * 2 (W.D.
Wis. Feb. 5, 2016). "Interference with a detainee's
access to the court constitutes a First Amendment
violation." Gold v. Geo Group Inc., 2016 WL
7034404 at *11 (M.D. Fla. Dec. 2, 2016) (cites omitted). But
plaintiffs must plead actual harm, and that's
"'not satisfied by just any type of frustrated legal
claim. Specifically, a plaintiff must show that the denial of
access to court prejudiced him in a criminal appeal,
post-conviction matter, or in a civil rights action under 42
U.S.C. § 1983 to vindicate 'basic constitutional
rights.'" Id. at *11 (quoting 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).
most, McRoberts alleges that the postage-supplying component
of his jail's "access to court" guarantee
"is subpar, " prejudicing at best a generic legal
claim, rather than "a criminal appeal, post-conviction
matter, or... a civil rights action under 42 U.S.C. §
1983 to vindicate basic constitutional rights."
Gold, 2016 WL 7034404 at * 11. This claim fails.
also fails to plead facts to support an emotional distress
claim. See Timmons v. Bryson, 2016 WL 4082710 at * 6
(S.D. Ga. Aug. 1, 2016) (for such a claim, "(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). Having alleged no physical
injury, McRoberts' emotional distress claim also fails.
its facial frivolity, plaintiffs Complaint must be DISMISSED
WITH PREJUDICE with no re-pleading option 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). His motion to
appoint counsel is DENIED. Doc. 3. And because of its
frivolity, this case should be recorded as a
"strike" under 28 U.S.C. § 1915(g).
plaintiff must 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.
a word about "zero-account" inmate lawsuits like
this (McRoberts had $0.00 in his prison account when he filed
this case, doc. 6 at 1). Assuming that the district judge
adopts this and the three other, "no-claim"
R&Rs issued this day by the undersigned (McRoberts v.
Karpf, CV416-067, McRoberts v. Meeks,
CV416-149, and McRoberts v. Odell, CV416-181), two
consequences result: First, plaintiff will have struck out
under § 1915(g)'s three-strikes rule. And second, he
will owe $1, 400 in PLRA fees (four sets of $350 filing fees
to be collected simultaneously). Bruce v. Samuels,
___U.S.___, 136 S.Ct. 627, 630-33 (2016) (28 U.S.C.
§ 1915(b)(2) requires that monthly filing-fee payments
be paid simultaneously on a per case basis, not sequentially,
even if this results in 100 percent of the prisoner's
monthly income being collected; this prevents an inmate from
filing multiple lawsuits for the price of one); Njos v.
Bureau of Prisons, 2017 WL 520555 at * 3 (M.D. Pa. Feb.
8, 2017). His fellow inmates are thus encouraged to
stop, look, and listen before lobbing baseless lawsuits at
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.
V.A. Leasing Corp., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.