Page 1 of 12

1

 Suits under §1983 and Bivens are very similar. Abella v. Rubino, 65 F.3d

1063 (11th Cir. 1995). A § 1983 suit challenges the constitutionality of the actions of

state officials; a Bivens suit challenges the constitutionality of the actions of federal

officials. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). "The effect

of Bivens was, in essence, to create a remedy against federal officers, acting under

color of federal law, that was analogous to the section 1983 action against state

officials." Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.1980), cert. denied, 450 U.S.

983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981). Thus, courts generally apply §1983 law to

Bivens cases. E.g., Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

PHYNERRIAN MANNING,

Plaintiff,

vs. CASE NO. 5:03CV304-SPM/AK

CHARLENE SMITH, et al,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff brings this cause pursuant to 28 U.S.C. §1331 alleging that the

Defendants, staff members at the Federal Correctional Institution at Marianna, Florida,

violated his First Amendment rights when they confiscated legal mail and prevented him

from pursuing a lawsuit. (Doc. 1). 1

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L.Ed.2d 895 (1978). 

No. 5:03cv304-SPM/AK

I. Allegations of the Complaint (doc. 1)

Plaintiff claims that he had a pending action in the United States Appeals Court

for the Eleventh Circuit and on November 18, 2002, the United States Attorneys office in

Pensacola mailed a brief to Plaintiff at FCI Marianna, making Plaintiff’s reply brief due

on December 4, 2002. Plaintiff contacted the mail room at FCI and inquired about the

Government’s brief. On December 11, 2002, he submitted a formal request, to which

no response was given. On December 18, 2002, Plaintiff claims he finally received a

copy of the brief, but only after filing several motions and letters in the Court and having

a copy mailed by the Attorney’s Office to his brother, who then mailed it to him. Plaintiff

claims that even though he rushed his brief in to the Eleventh Circuit on December 27,

2004, it was rejected as out of time. Plaintiff claims that he filed a motion to submit the

brief out of time, which was denied, and he ultimately lost his case because his brief

was untimely. Later, on February 10, 2003, Plaintiff was advised by the mail room that

the brief had been found with the cover letter dated November 18, 2002. Plaintiff claims

that the mail room admitted to committing an “administrative error.”

Attachments to the complaint show that Plaintiff filed an Attempt at Informal

Resolution on February 11, 2003, (exhibits 1-2), complaining about the lost mail and

requesting damages. A letter dated February 25, 2003, from Charlene Smith to

Michelle Clower, recited the following:

Upon cleaning the mail room on February 9, 2003, a package was

discovered addressed to the above referenced inmate [Plaintiff]. The

package was from the United States Attorney’s Office, Penasacola,

Florida. It contained two originals of the Government’s Initial Brief ECCA

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No. 5:03cv304-SPM/AK

No. 02-14805-EE and a computer disk containing the 5 copies of the

Government’s Brief. This package was originally placed to the side

because it contained a computer disk which is prohibited by national policy

for an inmate to possess and was to be processed at a later time. Doug

Thompson, Case Manager, was advised and contacted Brenda Wiegman,

Clerk with the 11th Circuit Court at 404-335-6174, of the date the brief was

delivered to the inmate-February 10, 2003. Jenny, Legal Assistant to

Nancy Hess, Assistant U.S. Attorney, was also advised. (Exhibit 3).

Plaintiff was advised in a response to his Attempt at Informal Resolution that:

Due to Administrative error, a package containing two Government Brief’s

and a computer disk was not delivered to you in a timely manner. The

actual date that the package was received is not known because this

package did not meet guidelines to qualify as legal mail, therefore, it was

not date/time stamped when it was received. The package was delivered

to you on February 10, 2003. Case Manager Doug Thompson contacted

Brenda Wiegman, Clerk with the 11th Circuit Court at 404-335-6174 of the

date the brief was delivered to the inmate. In addition, Jenny, Legal

Assistant to Nancy Hess, Assistant U.S. Attorney, was also advised. 

(Exhibit 4).

This response was given to Plaintiff’s Request for Administrative Remedy (exhibit 5)

dated March 13, 2003, with the additional note that, “While this was an administrative

error, it was not illegal, malicious or retaliatory.” (Exhibit 6).

Plaintiff filed a Regional Request for Administrative Remedy dated April 16, 2003,

(exhibits 7-8), and the response in pertinent part was:

Institution staff contacted the court to advise them of the date you received

the documents. The court has also advised us your appeal was not denied

solely because the return brief was filed out of time. You also have a

current appeal pending with the court. Although institution staff did not

deliver the contents of the package addressed to you in a timely manner,

there is no evidence this resulted in you being denied access to the court

or a denial of your appeal. (Exhibit 9).

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No. 5:03cv304-SPM/AK

In response to a Central Office Administrative Remedy Appeal dated May 31, 2003,

(exhibit 10), Plaintiff was informed that:

Our review reveals the Warden and Regional Director adequately

responded to the issues raised. Program Statement 5800.01, Mail

Management Manual, all incomming inmate property packages must be

authorized in advance unless otherwise approved under another Bureau

Policy. Some packages are authorized under other bureau policies, such

as magazines, the packages must be marked with words such as

“Authorized by Bureau Policy.” ...”[C]ontact was made with all concern [sic]

parties to advise them that this was an administrative error and not your

fault.” (Exhibit 11).

II. Standard of Review

In reviewing this case, the Court anticipated considering evidentiary material,

which was attached by Defendants to the motion to dismiss, and therefore, under Rule

12(b), Federal Rules of Civil Procedure, the motion to dismiss was converted into a

Rule 56 motion for summary judgment.

A district court should grant summary judgment when, “after an adequate time for

discovery, a party fails to make a showing sufficient to establish the existence of an

essential element of that party’s case.” Nolen v. Boca Raton Community Hospital, Inc.,

373 F.3d 1151, 1154 (11th Cr. 2004), citing Celotex Corporation v. Catrett, 477 U.S. 317,

322 (1986). All issues of material fact should be resolved in favor of the Plaintiff or nonmoving party before the Court determines the legal question of whether the defendant is

entitled to judgment as a matter of law under that version of the facts. Durruthy v.

Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003); Skrtich v. Thornton, 280 F.3d 1295, 1299

(11th Cir. 2002). The Plaintiff has the burden to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Celotex, 477 U.S. at 322-23. Plaintiff

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No. 5:03cv304-SPM/AK

must show more than the existence of a "metaphysical doubt" regarding the material

facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S.

574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986), and a "scintilla" of evidence is

insufficient. There must be such evidence that a jury could reasonably return a verdict

for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242,

251, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986). “For factual issues to be

considered genuine, they must have a real basis in the record.” Mize v. Jefferson City

Board of Education, 93 F.3d 739, 742 (11th Cir. 1996).

"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by

his own affidavits, or by the 'depositions, answers to interrogatories, and admissions on

file,' designate 'specific facts showing that there is a genuine issue for trial.' " Owen v.

Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting

Celotex, 477 U.S. at 324, 106 S. Ct. at 2553 (quoting Fed. R. Civ. P. 56(c), (e)). The

nonmoving party need not produce evidence in a form that would be admissible as Rule

56(e) permits opposition to a summary judgment motion by any of the kinds of

evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477

U.S. at 324, 106 S. Ct. at 2553.

While a moving party is not required to support his motion for summary judgment

with affidavits, Celotex, supra at 323, the facts stated in uncontradicted affidavits or

other evidentiary materials must be accepted as true for purposes of summary

judgment. Gauck v. Meleski, 346 F.2d 433, 436 (5th Cir. 1965).

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No. 5:03cv304-SPM/AK

III. Defendants’ relevant Rule 56 evidence

a) Affidavit of Defendant Michelle Clower (Doc. 20, Exhibit B)

Defendant Clower has been with the Bureau of Prisons for over 25 years and is

Inmate Systems Manager, which includes overseeing the mail room staff. She was

notified on February 9, 2003, by Defendant Charlene Smith that a package addressed

to Plaintiff had been discovered during a clean up of the mail room. Ms. Smith informed

Clower that the package had been delivered and Plaintiff’s case manager informed. 

The case manager called the Eleventh Circuit Court of Appeals and the legal assistant

to the United States Attorney to advise them of the date the package was actually

delivered. The case manager also discussed with Plaintiff the facts surrounding the

delay. 

b) Affidavit of Defendant Charlene Smith (doc. 20, exhibit C)

Defendant Smith has been with the Bureau of Prisons for over 16 years and

supervises the mail room. She was told about the package being found on February 9,

2003. The package was mailed from the United States Attorneys Office in Pensacola,

Florida, but was not marked legal mail. The package also contained a computer disk,

which BOP policy prohibits inmates from possessing. The package also contained two

originals of the Government’s brief in Case No. ECCA No. 02-14805-EE. Because of

the computer disk, the package was set aside by mail room staff and forgotten. On

February 10, 2003, Plaintiff was given the package and the circumstances of its

misplacement explained to him. Plaintiff’s case manager was also advised of the error,

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No. 5:03cv304-SPM/AK

and he made phone calls to the Eleventh Circuit Court of Appeals and the United States

Attorneys Office to explain that Plaintiff had just been given the package.

The remainder of Defendants’ submission is duplicative of exhibits submitted with

Plaintiff’s complaint.

IV. Plaintiff’s relevant Rule 56 evidence

a) Affidavit of Plaintiff (doc. 21, Exhibit 1)

Plaintiff attests that he began complaining about his mail on November 7, 2002,

and advised the mail staff that he had a legal matter pending and was awaiting the

government’s brief. (Attachments A, B). The response was that no brief had been

received, but any mail to Plaintiff would be delivered as soon as it arrived. (Att. A). On

November 23, 2002, Plaintiff wrote to his uncle and asked that he contact the Eleventh

Circuit Court of Appeals to inquire about the missing brief concerning a Motion for New

Trial filed in Appeals Case No. 02-14805-EE from a judgment entered in Case No. 99-

00004CR05-LAC. (Att. C). Plaintiff attests that he made daily inquiries about the brief

from November 18, 2002, through December 2, 2002, and was told that the brief was

not there. On December 2, 2002, Plaintiff wrote the Eleventh Circuit to advise that he

had not received the brief, which was overdue, and that if one had been filed would the

court send him a copy. (Att. D). Plaintiff attests that he again wrote the mail staff to

inform them that a clerk at the Eleventh Circuit told him the brief was filed and a copy

sent to him on November 18, 2002, according to the certificate of service, but the mail

staff did not respond to the request. (Att. E). Plaintiff contends that this act was in

retaliation for his filing complaints, and that the mail room has repeatedly retaliated

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No. 5:03cv304-SPM/AK

against him and other inmates by withholding mail. (Affidavit at p.10). Plaintiff attests

that about one week later he received the brief from his brother and filed a reply brief,

which was dismissed as untimely. There is no copy of the order from the Eleventh

Circuit dismissing the appeal. Plaintiff attests that he finally received the brief from

the mail room on February 10, 2003. On February 13, 2003, he filed an Attempt at

Informal Resolution, at which time the calls were made to the United States Attorneys

Office and the Eleventh Circuit, which Plaintiff contends proves that the Defendants did

not take action to assist him until he began the grievance process. Further, Plaintiff

claims that when he finally received the briefs the envelope did not indicate that it had

been rejected or that it was to be treated any differently than any other mail. (See Att.

K). The envelope is not marked legal mail. Plaintiff claims that other incidents of

retaliation have occurred and the disk that resulted in the mail problem was clearly

identified as the government’s brief. (Atts. L through P-1).

V. Analysis

a) Access to Court

In Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174, 2180, 135 L. Ed. 2d 606

(1996), the Court announced the following three-part test for determining whether a

denial of access to the courts has, in fact, caused actual injury under the Constitution:

1. The action must involve an attack to the prisoner's sentence, directly or

collaterally, or challenge the conditions of his confinement.

2. The prisoner must show the claim to which he was impeded was not frivolous.

3. The conduct complained of must have impeded the inmate's capability to file

the non-frivolous action challenging his sentence or the conditions of his

confinement.

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Id. at 1281-83. 

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), citing Lewis, 518 U.S. at 352-57, 116 S. Ct. at 2181-82.

Plaintiff is considerably vague about the pending appeal that he alleges was

dismissed because of the actions of Defendants. He has not attached any papers

concerning that case, even though it is his burden to show actual injury under the threepart test cited above. Fortunately, the underlying criminal action was filed in this district

and the papers concerning the appeal were available for review. The chronological

history of the case is informative. 

Defendant was found guilty by jury verdict of Count 3 of the indictment

(possession with intent to distribute cocaine base) and sentenced to 120 months on

August 18, 1999. (Doc. 73 in Case No. 5:99CR4-LAC). A Notice of Appeal was filed on

August 23, 1999, (doc. 74), and the conviction affirmed. (Doc. 96). Plaintiff then filed a

motion to vacate (doc. 100), which was denied on October 29, 2001. (Doc. 122). 

Plaintiff moved for reconsideration, which was also denied. (Doc. 125). Plaintiff

appealed to the Eleventh Circuit (doc. 126), which was denied because Plaintiff failed to

make a showing of a denial of a constitutional right. (Doc. 139). 

Plaintiff then moved for a new trial alleging newly discovered evidence. (Doc.

140). This motion was denied on the ground that the evidence, an affidavit from

Plaintiff’s mother regarding the ownership of a key ring presented at trial, was not “new”

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No. 5:03cv304-SPM/AK

within the meaning of the law. (Docs. 141, 144). Plaintiff appealed this denial (doc.

145), which is the pending appeal at issue in the present lawsuit, USCA # 02-14805-E. 

(See Doc. 149). Contrary to Plaintiff’s assertion, his appeal was not denied because he

failed to file a reply brief timely. The Eleventh Circuit Court of Appeals made a decision

on the merits of the motion for new trial finding that the district court did not abuse its

discretion in finding that Plaintiff failed to prove the elements for granting a new trial

based on newly discovered evidence pursuant to Rule 33, Federal Rules of Criminal

Procedure, and the applicable case law. There was no mention of the untimeliness

of Plaintiff’s brief or that the court was adopting the government’s position

because there was no reply brief filed as Plaintiff asserts. There is also no record

that Plaintiff filed a motion for leave to file an out of time brief as he asserts. 

Consequently, the facts are that there was no actual injury resulting from the

delay in delivering Plaintiff’s mail to him, and therefore he has failed to state a claim

under the First Amendment. Plaintiff has the burden to prove the elements of his claim

and has failed to carry this burden, thus entitling Defendants to judgment as a matter of

law.

The undersigned also finds that Plaintiff intentionally misled the Court in his

complaint when he stated: “Even a motion to file out of time brief did not cure the

default, the Eleventh Circuit denied Plaintiff brief and motion, as untimely, and ruled

against him based upon the Government’s unchallenged brief.” (Complaint, p.6). The

order dismissing Plaintiff’s appeal is clearly not based on a procedural default, does not

mention an untimely brief, and is based upon the trial transcript and not solely on the

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government’s unchallenged brief. Plaintiff has had a previous complaint dismissed as

frivolous and it is herein recommended that this case, also, be dismissed as frivolous

thereby constituting “two strikes” under 28 U.S.C. 1915(g). If Plaintiff receives one more

strike he will be barred from filing in federal court without a showing of “imminent danger

of serious physical injury.”

The undersigned finds it unnecessary to determine the merits of Defendants’

other grounds in light of Plaintiff’s failure to state a claim, but it appears that both Clower

and Smith were not directly involved in the confiscation of Plaintiff’s mail and were

named solely because they supervise others in the mail room. Supervisory personnel

cannot be held vicariously liable for the actions of their subordinates, but may be

independently liable if a reasonable person in the supervisor’s position would have

known that his conduct infringed the Plaintiff’s rights and the supervisor’s conduct was

causally related to the subordinate’s constitutional violation. Greason v. Kemp, 891

F.2d 829, 836 (11th Cir. 1990); McKinney v. DeKalb County, 997 F.2d 1440, 1443 (11th

Cir. 1993). Under Plaintiff’s set of facts, neither Clower nor Smith became involved in

the mail problem until the envelope was discovered by others during a clean up of the

mail room. This factor, too, would constitute dismissal of his complaint.

In light of the foregoing, it is respectfully RECOMMENDED that Defendants’

Motion for Summary Judgment (doc. 20) be GRANTED, and that Plaintiff’s complaint,

doc. 1, be DISMISSED for failure to state a claim upon which relief may be granted

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and as frivolous pursuant to 28 U.S.C. §

1915(e)(2)(B)(I).

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No. 5:03cv304-SPM/AK

It is further RECOMMENDED that the order adopting this report and

recommendation direct the clerk of court to note on the docket that this cause was

dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) and (ii) and that this dismissal

constitutes a “second strike” pursuant to 28 U.S.C. §1915(g). 

IN CHAMBERS at Gainesville, Florida, this 11th day of August, 2005.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

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