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Creighton v. Smith

United States District Court, S.D. Georgia, Statesboro Division

August 7, 2019

ANTWAN CREIGHTON, Plaintiff,
v.
DENA SMITH; and IRIS THOMPSON, in their individual capacities, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on Plaintiff's Motions to Amend, docs. 22, 28, and Defendants' Motions to Dismiss, docs. 18, 25. For the following reasons, the Court GRANTS Plaintiff's May 23, 2019 Motion to Amend, doc. 28, and GRANTS in part and DENIES in part Plaintiff's April 17, 2019 Motion to Amend, doc. 22. Additionally, I RECOMMEND the Court GRANT Defendants' Motions to Dismiss, docs. 18, 25, DISMISS Plaintiff's Complaint, and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. Finally, I DENY as moot Plaintiff's Motion for Default Judgment, doc. 17, and Plaintiff's Motion for Copies, doc. 15.

         BACKGROUND

         Plaintiff asserts an access to court claim arising from his attempt to appeal his underlying criminal conviction by filing a notice of appeal with the Superior Court of Fulton County. Doc. 1 at 3-4; Doc. 1-1 at 5-8; Doc. 28-1 at 2-9. Plaintiff contends Defendants delayed mailing his notice of appeal, preventing him from timely filing that notice and causing the Court of Appeals of Georgia to initially reject his appeal as untimely. Doc. 1; Doc. 28-1 at 2-9.

         After the Fulton County Superior Court denied his motion for a new trial, Plaintiff had until November 7, 2016 to file a notice of appeal with that court. Doc. 1 at 3-4; Doc. 1-1 at 8. On November 2, 2016, Plaintiff submitted an envelope addressed to the Fulton Superior Court and containing his notice of appeal to prison authorities for postage. Doc.1 at 4; Doc. 1-1 at 9, 13. Plaintiff's notice of appeal was mailed and postmarked-but not until November 15, 2016. Doc. 1 at 10-11, 15-16; Doc. 1-1 at 15-16, 40. The Fulton Superior Court received and filed Plaintiff's notice of appeal on November 22, 2016. Doc. 1 at 6; Doc. 1-1 at 15, 31-32. On January 6, 2017, the Georgia Court of Appeals dismissed Plaintiff's appeal as untimely. Doc. 1 at 5; Doc. 1-1 at 15-16; Doc. 28-1 at 4. Plaintiff unsuccessfully appealed this decision with the Georgia Court of Appeals and the Georgia Supreme Court. Doc. 1-1 at 18-26. On May 19, 2017, Plaintiff filed a motion for an out-of-time appeal with the Fulton County Superior Court. Doc. 1 at 6; Doc. 1-1 at 28-38, 60-61; Doc. 28-1 at 9. The superior court granted that motion on October 26, 2017. Doc. 1 at 6; Doc. 1-1 at 28-38, 60-61; Doc. 28-1 at 9.

         Plaintiff alleges that Defendants Smith and Thompson violated his constitutional right to access the courts by deliberately, intentionally, or negligently weighing his mail incorrectly and, consequentially, failing to attach the correct amount of postage, and by holding Plaintiff's mail for an additional 10 to 11 days after its return from the post office before adding a stamp and resending it. Doc. 1 at 3-9; Doc. 28-1 at 2-4, 6-8. Plaintiff contends that his notice of appeal was not postmarked until November 15, 2016 (approximately 13 days after he submitted it to prison authorities for mailing), that Defendants Smith and Thompson are responsible for this delay, and that this delay caused the Court of Appeals to dismiss his appeal as untimely. Doc. 1-1 at 15-16, 26, 67; Doc. 28-1 at 2-9. Plaintiff argues Defendant Thompson initially weighed Plaintiff's mail incorrectly and Defendant Smith did not apply the correct amount of postage. Doc. 1 at 7-8; Doc. 28-1 at 2, 6. Additionally, Plaintiff argues Defendants violated his constitutional rights by holding Plaintiff's mail for an additional “10 to 11 days” after the post office rejected it for insufficient postage. Doc. 1 at 10-11; Doc. 1-1 at 40; Doc. 28-1 at 2. Defendants argue they are entitled to qualified immunity and, because the Fulton County Superior Court subsequently granted Plaintiff's motion to file an out-of-time appeal, Plaintiff fails to show an actual injury. Docs. 18, 25.

         It is helpful to explain the precise timeline of the events that gave rise to Plaintiff's action. After Plaintiff was tried and convicted in the Fulton Superior Court, he filed a pro se motion for new trial, which the Fulton Superior Court denied on October 7, 2016. Doc. 1 at 3; Doc. 1-1 at 5-8. In order to preserve his right to appeal, Georgia law required Plaintiff file a notice of appeal with the superior court by November 7, 2016. Doc. 1 at 3-4; O.C.G.A. § 5-6-38(a). On or around November 2, 2016, Plaintiff filled out the indigent postage form at Smith State Prison and submitted it along with two envelopes, one addressed to the Fulton County Superior Court which contained his notice of appeal, and one addressed to the Georgia Court of Appeals which contained a brief setting forth grounds for his appeal. Doc. 1 at 4. He placed both envelopes “inside the black mailbox . . . labeled ‘indigent mail.'” Doc. 1 at 4. On November 3, 2016, Plaintiff received (through the prison's “institutional mail”) a copy of the indigent postage form which showed the amount of postage used on each envelope and the total cost. Doc. 1 at 4; Doc. 1-1 at 9. The Georgia Court of Appeals received Plaintiff's brief on November 7, 2016, but the Fulton County Superior Court did not receive Plaintiff's notice of appeal until November 22, 2016-twenty days after Plaintiff initially submitted it to prison authorities for delivery. Doc. 1 at 6; Doc. 1-1 at 15, 31-32.

         Plaintiff alleges that, as a result of insufficient postage, the post office returned the notice of appeal to Smith State Prison officials the day after it was mailed-on or around November 3, 2016-after which Defendants improperly held it for approximately 10 to 11 days before affixing the correct amount of postage and resending the letter on November 15, 2016. Doc. 1 at 7-12; Doc. 1-1 at 9, 40; Doc. 28-1 at 2-9.

         Plaintiff contends Defendants “deliberately and intentionally” delayed mailing Plaintiff's notice of appeal for these additional 10 to 11 days after the post office returned the notice for insufficient postage. Doc. 1 at 6-8; Doc. 28-1 at 2-9. According to Plaintiff, “Defendant Thompson picked up the mail from the post office on November 3, 2016, ” and she received Plaintiff's rejected letter at that time. Doc. 1 at 2-3, 8. Plaintiff bases this belief on his conversation with Defendant Thompson about her duties as a mailroom officer and a conversation between his wife and Mr. Chase Lamb, the postmaster at the post office used by Smith State Prison. Doc. 1 at 7-8; Doc. 1-1 at 5-7. Defendant Thompson told Plaintiff her duties include weighing large envelopes containing indigent legal mail and reporting the weight and number of stamps needed to the business office. Doc. 1 at 7-8. She is also responsible for dropping off and picking up mail from the post office, sorting the incoming mail, and passing out and picking up legal mail from inmates. Id. Plaintiff writes Defendant Thompson told him that “this is an every day [sic] process.” Id. Mr. Lamb told Plaintiff's wife that post office policy “does not allow” the post office to “hold mail that does not have the correct amount of postage on it.” Id. Rather, mail with insufficient postage is sent “back the very next day.” Id. Based on this information, Plaintiff alleges Defendant Thompson received his rejected letter on or around November 3, 2016, when she picked up the mail from the post office. Id. Regardless, it is clear that the envelope containing Plaintiff's notice of appeal was not postmarked until November 15, 2016.[1] Id.; Doc. 1-1 at 6-8, 40; Doc. 28-1 at 6.

         On January 6, 2017, the Georgia Court of Appeals dismissed Plaintiff's appeal as untimely. Doc. 1 at 5; Doc. 1-1 at 15-16. Plaintiff appealed to the Georgia Supreme Court, and the Georgia Supreme Court affirmed the dismissal of his appeal on the same grounds on April 17, 2017. Doc. 1-1 at 26. On May 19, 2017, Plaintiff filed a motion for an out-of-time appeal with the Fulton Superior Court.[2] Doc. 1 at 6. On October 26, 2017, the Fulton Superior Court determined the delay “was not attributable to [Plaintiff], ” granted Plaintiff's motion, appointed counsel, and permitted him to file an out-of-time notice of appeal within 30 days of that order.[3]Doc. 1-1 at 60-61. However, Plaintiff's counsel failed to file the out-of-time notice of appeal within the time provided. Doc. 18-1 at 3; Doc. 18-2 at 3. There is no indication from Plaintiff's filings as to what, if any, efforts were made to pursue the appeal after the entry of the superior court's written order.

         Plaintiff filed this action on April 11, 2018 while incarcerated at Smith State Prison in Glennville, Georgia.[4] Doc. 1. Plaintiff submitted a Supplemental Complaint on September 27, 2018. Doc. 10; Doc. 12 at 1 n.1. On January 28, 2019, this Court found that Plaintiff asserted a non-frivolous constitutional claim and ordered the United States Marshals perfect service upon Defendants Smith and Thompson. Doc. 12 at 1-2. Defendants filed a Motion to Dismiss, doc. 18, on April 1, 2019, and Plaintiff submitted a timely Response on April 17, 2019. Doc. 20. Along with his Response, Plaintiff also filed a motion for leave to amend, doc. 22, and attached his proposed Amended Complaint, doc. 22-1.[5] On May 2, 2019, Defendants filed a new Motion to Dismiss, doc. 25, to address Plaintiff's proposed Amended Complaint, doc. 22-1. Plaintiff again requested leave of Court to amend, doc. 28, and submitted a second proposed Amended Complaint, doc. 28-1, on May 23, 2019. Defendants objected. Doc. 29.

         In their Motions to Dismiss, docs. 18, 25, Defendants assert three main arguments. First, Defendants argue Plaintiff failed to state a claim because he “suffered no actual injury as his appeal was not ultimately precluded, but merely delayed.” Doc. 18-1 at 3-9; Doc. 25-1 at 1-2. Second, Defendants argue that even if Plaintiff demonstrated some injury, under 42 U.S.C. § 1997e(e), he cannot obtain compensatory or punitive damages unless there is a physical injury. Doc. 18-1 at 9-10; Doc. 25-1 at 1-2. Finally, Defendants aver that, because weighing, stamping, and posting mail are discretionary acts, and because Defendants did not commit a constitutional violation or act against clearly established law, they are protected by qualified immunity. Doc. 18-1 at 10-12; Doc. 25-1 at 1-2.

         DISCUSSION

         1. Plaintiff's Proposed Amended Complaints, Docs. 22-1, 28-1

         A plaintiff may amend a complaint once “as a matter of course” within 21 days of serving the complaint or 21 days after a responsive pleading is filed. Fed.R.Civ.P. 15(a). If the party has already amended the complaint once or if 21 days have passed, a contested amendment may only be filed with leave of court.[6] Id. Leave to amend should be “freely” given “when justice so requires.” Id. The Rules, therefore, skew in favor of permitting amendment. Foman v. Davis, 371 U.S. 178, 182 (1962) (“Rule 15(a) declares that leave to amend ‘shall be freely given when justice so requires'; this mandate is to be heeded.”); Halliburton & Assocs., Inc. v. Henderson, Few & Co., 774 F.2d 441, 443 (11th Cir. 1985); Duncan v. Marion Cty. Sheriff's Dep't, No. 5:03-cv-416, 2005 WL 8159841, at *2 (M.D. Fla. May 26, 2005); Senger Bros. Nursery v. E.I. Dupont de Nemours & Co., 184 F.R.D. 674, 678 (M.D. Fla. 1999). While courts may freely grant leave to amend, courts may deny a timely request based on bad faith, undue delay, failure to fix deficiencies despite prior leave to amend, undue prejudice to opposing party, or futility. Foman, 371 U.S. at 182; Halliburton, 774 F.2d at 443; Mumby v. Sec'y, Dep't of Corr., No. 216-CV-312, 2017 WL 6534937, at *2 (M.D. Fla. Dec. 20, 2017).

         Plaintiff's proposed Amended Complaint, doc. 22-1, and his second proposed Amended Complaint, doc. 28-1, are similar to his original Complaint, doc. 1, as supplemented, docs. 9, 10, 10-1, 12. However, there are two differences. First, in both proposed Amended Complaints, Plaintiff seeks to increase the amount of compensatory and punitive damages he requests against Defendants from $1, 500 to $100, 000 and from $50, 000 to $125, 000.[7] Doc. 1 at 14; Doc. 22-1 at 6-7; Doc. 28-1 at 9-10. Second, in Plaintiff's first proposed Amended Complaint, Plaintiff desires to add a state law negligence claim and a claim against Defendants for acting in violation of 18 U.S.C. § 242. Doc. 22-1 at 2-3, 4. Importantly, in his Motion requesting leave to file his second proposed Amended Complaint, Plaintiff requests the Court “dismiss” his first proposed Amended Complaint “[b]ecause of the improper addings [sic] of state tort law, and 18 U.S.C. § 242.”[8] Doc. 28 at 2.

         Because Plaintiff withdrew his attempt to add state law claims and § 242 claims-the only substantive change contained in his April 17, 2019 Motion-the Court DENIES in part Plaintiff's April 17, 2019 Motion to Amend, doc. 22, as to these two claims but GRANTS in part Plaintiff's April 17, 2019 Motion to the extent Plaintiff has included factual ...


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