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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

GREGORY SCOTT WELCH,

Plaintiff,

v. CASE NO. 1:09-cv-00265-MP -GRJ

GREG ARLINE, et al,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

Plaintiff brings this cause pursuant to 42 U.S.C. §1983 alleging that Defendants

conspired to hinder his access to the court when they confiscated his legal papers and

wrote him up on a disciplinary report. (Doc. 22). 

A court may sua sponte dismiss a case proceeding in forma pauperis if the

complaint fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A. 

The complaint's [f]actual allegations must be enough to raise a right to relief above the

speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also Cobb v.

Florida, 293 Fed. Appx. 708 (11th Cir. 2008) (applying Twombly to a prisoner’s pro se

complaint brought under 42 U.S.C. §1982 and dismissed pursuant to 28 U.S.C.

§1915A). “The Supreme Court's most recent formulation of the pleading specificity

standard provides that ‘stating such a claim requires a complaint with enough factual

matter (taken as true) to suggest’ the required element.” Watts v. Florida International

University, 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly, 127 S.Ct. at 1965).

This standard simply calls for enough facts to raise a reasonable expectation that

discovery will reveal evidence of the required element. Twombly, at 1965. In reviewing
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the dismissal of a complaint under the 28 U.S.C. 1915A(b)(1), this court accepts

allegations in the complaint as true, and pro se pleadings are liberally construed. Brown

v. Johnson, 387 F.3d 1344, 1350 (11th Cir.2004).

The second amended complaint – which is not on the required forms previously

sent to Plaintiff – is Plaintiff’s third attempt to state sufficient facts to support his claims. 

Plaintiff previously was told that he must show an actual injury resulting from the

confiscation of legal materials to state a First Amendment claim. Despite this directive

Plaintiff still has failed to identified an injury. (Doc. 13). 

According to Plaintiff, the 52 pages of materials confiscated from him concerned

a state habeas matter. Plaintiff fails, however, to allege that the confiscation of these

papers resulted in (for example) a missed deadline or a denial or dismissal of a specific

action. Without a showing of an actual injury Plaintiff’s claim must fail. See, Lewis v.

Casey, 518 U.S. 343, 351 (1996); see also Nichols v. Head, Case No. 5:10-CV-71 (HL),

2010 WL 1224091 at *2 (M.D. Ga. March 22, 2010) (prisoner who has not alleged,

much less shown, an actual injury has not stated a claim); Dorsey v. White, Case No.

2:05CV565-MHT, 2007 WL 2480517 at *5 (M.D. Ala. Aug. 27, 2007) (failure to allege

any specific facts showing prejudice to pending or contemplated appeal, habeas action

or non-frivolous civil rights action does not establish requisite showing of actual

prejudice); Tucker v. Powell, Case No. 7:09-CV-67 (WLS), 2009 WL 3416465 at *2

(M.D. Ga. July 8, 2009) (conclusory allegation of prejudice without more specific

showing of negative impact on particular legal action does not state a claim).

Plaintiff also complains that the DR he received when his legal materials were

taken was a retaliatory act, which he describes as an “artifice act.” Plaintiff spent 37

Case No: 1:09-cv-00265-MP -GRJ
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days in disciplinary confinement on these allegedly false charges of “fraud.” In

response to his grievances seeking return of these materials, Plaintiff was advised that

the papers were “contraband” and would not be returned.

The Supreme Court has held that damages under section 1983 may not be

awarded if establishing the basis for the damages claim necessarily demonstrates the

invalidity of a conviction.” Heck v. Humphrey, 512 U.S. 477 (1994). This has been

applied to disciplinary proceedings as well and has been interpreted by the Eleventh

Circuit to foreclose any challenges to the results of a disciplinary review, but not if the

challenge is based on some procedural due process issue. See Edwards v. Balisok,

520 U.S. 641 (1997); Harden v. Pataki, 320 F.3d 1289, 1295 n.9 (11 Cir. 2003). th

The procedural requirements for a disciplinary hearing are three-fold: (1)

advance written notice; (2) a written statement of the reasons for the disciplinary action

taken; and (3) the opportunity to call witnesses and present evidence. Wolff v.

McDonnell, 418 U.S. 539, 556 (1974); Young v. Jones, 37 F.3d 1457, 1459-60 (11 Cir. th

1994); Bass v. Perrin, 170 F.3d 1312, 1318 (11 Cir. 1999). th

Plaintiff does not allege any issue with the procedures used to find him guilty on

the disciplinary report at issue. 

Finally, while Plaintiff describes a conspiracy by these defendants to retaliate

against him, he offers no facts to support such a conspiracy. Based on the facts

Plaintiff does provide, there was a prison policy established by Defendant Sapp in a

memorandum that directed that legal materials would be taken, reviewed, and returned

after 15 days. Plaintiff objected to this process, generally complaining that he had court

deadlines to meet, and when he refused to hand the papers over he was handcuffed

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and the documents were confiscated. Based upon what the prison officials found upon

their review, Plaintiff was issued a DR and the materials were classified as contraband.

Taking these facts as true, Plaintiff did not comply with prison policy, refused an order

to allow review of his legal materials, and was issued a DR. Where, as here, a prisoner

violates prison rules, such conduct “checkmates” a retaliation claim. See O’Bryant v.

Finch, Case No. 5:05cv111/LAC/MD, 2008 WL 691689 at *9 (N.D. Fla. March 12,

2008), citing Henderson v. Baird, 29 F.3d 464, 465, 469 (8th Cir.1994) (a finding that

prisoner violated rules checkmates his retaliation claim); Romansky v. Stickman, 147

Fed.Appx. 310 (3rd Cir. 2005) (when prisoner found guilty on DR he is foreclosed from

claiming retaliation in connection with its issuance). See also Cherfils v. Jones, Case

No. 3:07cv391/MCR/MD, 2008 WL 817098 at *2 (N.D. Fla. March 25, 2008), citing

Cowans v. Warren, 150 F.3d 910, 912 (8th Cir. 1998)(quoting Orebaugh v. Caspari,

910 F.2d 526, 628 (8th Cir. 1990) (an inmate may not state a claim of retaliation where

the “discipline [was] imparted for acts that a prisoner was not entitled to perform.”) 

In light of the foregoing, it is respectfully RECOMMENDED: 

That the complaint be DISMISSED for failure to state a claim for relief pursuant

to 28 U.S.C. §1915A(b)(1).

At Gainesville, Florida, this 16 day of November 2010. th

s/Gary R. Jones

GARY R. JONES

United States Magistrate Judge

Case No: 1:09-cv-00265-MP -GRJ
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NOTICE TO THE PARTIES

Pursuant to Fed. R. Civ. P. 72(b)(2), a party may file specific, written

objections to the proposed findings and recommendations within 14 days after

being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 14 days after being served with a

copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

Case No: 1:09-cv-00265-MP -GRJ