United States District Court, S.D. Georgia, Statesboro Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
BENJAMIN W. CHEESBRO, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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. Id.; Doc. 1-1 at
6-8, 40; Doc. 28-1 at 6.
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. 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.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.
filed this action on April 11, 2018 while incarcerated at
Smith State Prison in Glennville, Georgia. 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. 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.
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.
Plaintiff's Proposed Amended Complaints, Docs. 22-1,
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. 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).
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. 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.” Doc. 28 at 2.
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 ...