United States District Court, S.D. Georgia, Savannah Division
NICHOLAS S. BACON, Plaintiff,
DAVID EDWARDS, et al., Defendants.
REPORT AND RECOMMENDATION
Christopher L. Ray United States Magistrate Judge.
Court screened Nicholas S. Bacon's 42 U.S.C. § 1983
Complaint pursuant to 28 U.S.C. § 1915A, which requires
the immediate dismissal of any pro se complaint that
fails to state at least one actionable claim, and authorized
service of his excessive force claims against several other
defendants and ordered Bacon to amend his
“postcards” claim. See doc. 8. Bacon
having timely amended his complaint (doc. 11), the Court now
screens his Amended Complaint that he has been deprived of
his First Amendment right to mail anything more than
has abandoned any reference to the jail's
“memo” restricting outgoing mail to
“postcards.” Compare doc. 11
with doc. 1 at 6. Now he complains that three
letters somehow intertwined with his legal rights have been
“censored” and “withheld.” Doc. 11 at
2-4. “Access to the courts is clearly a constitutional
right, grounded in the First Amendment, the Article IV
Privileges and Immunities Clause, the Fifth Amendment, and/or
the Fourteenth Amendment.” Chappell v. Rich,
340 F.3d 1279, 1282 (11th Cir. 2003) (citing Christopher
v. Harbury, 536 U.S. 403, 415 n. 12 (2002)). However, to
bring an access-to-courts claim, an inmate must establish
that he suffered an actual injury:
The actual injury which the inmate must demonstrate is an
injury to the right asserted, i.e. the right of access. Thus,
the . . . official's actions which allegedly infringed on
an inmate's right of access to the courts must have
frustrated or impeded the inmate's efforts to pursue a
nonfrivolous legal claim. Further, the legal claim must be an
appeal from a conviction for which the inmate was
incarcerated, a habeas petition or a civil rights action.
Bass v. Singletary, 143 F.3d 1442, 1445 (11th Cir.
1998) (cites omitted).
alleges that his personal letter to “Ms. Taresi”
has been “censored” and “withheld” by
Administrator Edwards, thus “suppress[ing]” his
“spiritual connection to a fair trial . . . [by]
leaving [him] disconnected of ideas and a sense of
identity.” Doc. 11 at 1. This disconnection (somehow,
he doesn't say) resulted in a “selective and
malicious prosecution” and the “coup de grace of
the ultimate hate crime, ” as he was (somehow, it is
left to the Court's imagination) denied a qualified
witness. Id. at 1-2. The Court is hard pressed to
translate this mumbo jumbo, poetic though it may be, into an
actionable claim. “Spiritual connection” does not
an access-to-the-courts or access-to-counsel claim make.
then alleges that defendant censored and withheld his mail to
“Mr. Al Williams, state representative, ” wherein
he was “seeking help with a clemency on how to restore
[his] civil and political rights and remove disabilities from
previous conviction.” Doc. 11 at 2. A third letter to
“the Post Master General” has also been censored
and withheld, which Bacon concludes “demonstrate[s] the
actual injury to the First Amendment.” Id.
That injury, apparently, is his own “suppress[ed]
expression” and stymied “basic human desire for
recognition.” Id. at 3. These “injuries,
” however, do not implicate the Constitution.
Amended Complaint falls far short of establishing
any injury whatsoever, beyond his conclusory
allegations that his spiritual and legal rights have been
affected. Bass, 143 F.3d at 1445 (plaintiff must
show interference with his mail “frustrated or
impeded” his vindication of a “nonfrivolous legal
claim”). He also does not come close to showing
defendants acted with the intent to frustrate his
ability to defend his case. Simkins v. Bruce, 406
F.3d 1239, 1242 (10th Cir. 2005) (plaintiff must allege
intentional conduct interfering with his legal mail to
support claim of impeding a right of access to the courts);
Snyder v. Nolen, 380 F.3d 279, 291 n. 11 (7th Cir.
2004) (“an allegation of simple negligence will not
support a claim that an official has denied an individual
access to the courts” and citing cases from other
courts holding same). Finally, plaintiff does not allege that
his attorney-client communications are being interfered with.
See doc. 11. He thus fails to state a legal mail
claim based on free speech. See generally Al-Amin v.
Smith, 511 F.3d 1317, 1332-34 (11th Cir. 2008).
plaintiff's legal mail claims against Jail Administrator
Edwards should be DISMISSED from the
Complaint. This Report and Recommendation (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 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
ORDERED AND REPORTED AND RECOMMENDED.
 To the extent plaintiff believes he
can resuscitate these claims, he remains free to set forth
any allegations against these defendants in a Second Amended
Complaint if he believes that it would cure the legal and
factual defects discussed above. See Willis v.
Darden, 2012 WL 170163 at * 2 n. 3 (S.D. Ga. Jan. 19,
2012). If he does not, after the ...