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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

COY W. BELLAMY,

Plaintiff,

vs. Case No. 5:10cv84/MCR/EMT

WALTER A. McNEIL, et al., 

Defendants.

____________________________________/

REPORT AND RECOMMENDATION

This cause is before the court on Plaintiff’s amended civil rights complaint filed pursuant to

42 U.S.C. § 1983 (Doc. 10). Leave to proceed in forma pauperis has been granted (Doc. 7).

Because Plaintiff is proceeding in forma pauperis, the court may dismiss the case if satisfied

that the action is “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28

U.S.C. § 1915(e)(2)(B). A complaint is frivolous under section 1915(e) “where it lacks an arguable

basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1833, 104

L. Ed. 2d 338 (1989). Dismissals on this ground should only be ordered when the legal theories are

“indisputably meritless,” id., 490 U.S. at 327, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 1733, 118 L. Ed. 2d 340

(1992). Dismissals for failure to state a claim are governed by the same standard as Federal Rule

of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th Cir. 1997). The

allegations of the complaint are taken as true and are construed in the light most favorable to

Plaintiff. Davis v. Monroe County Bd. of Educ., 120 F.3d 1390, 1393 (11th Cir. 1997). Such

acceptance should not be given blindly, however; only well-pleaded factual allegations are taken as

true and only reasonable inferences are drawn in favor of the plaintiff. See Oladeinde v. City of

Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992); Marrero v. City of Hialeah, 625 F.2d 499, 502
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(5th Cir. 1980);1 see also Long v. Satz, 181 F.3d 1275, 1278 (11th Cir. 1999) (per curiam)

(“reasonable inferences” drawn); Associated Builders, Inc. v. Ala. Power Co., 505 F.2d 97, 100 (5th

Cir. 1974) (“unwarranted deductions of fact are not admitted as true”). A plaintiff must allege more

than mere “labels and conclusions”; the complaint must include “[f]actual allegations . . . [sufficient]

to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007) (citations and internal quotations omitted). Indeed,

“any conclusory allegations, unwarranted deductions of fact or legal conclusions masquerading as

facts do not prevent dismissal.” Weissman v. Nat’l Ass’n of Sec. Dealers, 500 F.3d 1293, 1305

(11th Cir. 2007) (en banc) (Tjoflat, J., dissenting) (citing Associated Builders, Inc., 505 F.2d at 99). 

The complaint may be dismissed if the facts as pleaded do not state a claim to relief that is plausible

on its face. See Bell Atl. Corp., supra (retiring the often-criticized “no set of facts” language

previously used to describe the motion to dismiss standard and determining that because plaintiffs

had “not nudged their claims across the line from conceivable to plausible, their complaint must be

dismissed” for failure to state a claim). Upon review of the amended complaint, the court concludes

that dismissal of this action is warranted.

Plaintiff, a prisoner, was housed at Gulf Correctional Institution (“GCI”) at the time the

events giving rise to this action transpired. In his amended complaint Plaintiff names as Defendants

Walter A. McNeil (“McNeil”), Secretary of the Florida Department of Corrections (“FDOC”), and

several GCI correctional officers.2

 Plaintiff alleges that upon being placed into administrative

confinement at the GCI Annex his legal documents and other personal property were inventoried

outside his presence and put in an inadequately secured storage area (Doc. 10 at 4).3

 Upon his

1

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted

as precedent all of the decisions of the former Fifth Circuit decided prior to October 1, 1981.

2

 In the amended complaint Plaintiff names as Defendants McNeil, Sgt. C. Warden, and correctional officer

L. Dobsa in the style of the case (Doc. 10 at 1). In the “Defendants” section of the complaint form Plaintiff names

Secretary McNeil and two different correctional officers, Connie Battin and J. Malles (id. at 2). The latter three parties 

are the Defendants named in the initial complaint (see Doc. 1) and thus are listed on the court’s docket. No individual

is mentioned by name in the “Statement of Facts” or “Statement of Claims” sections of the amended complaint. 

Regardless of the aforementioned deficiencies, it matters not whom Plaintiff may have intended to name as Defendants

in his amended complaint because, as discussed below, the claims asserted are without merit.

3

 The page references used in this report reflect the page numbers as enumerated in the court’s electronic

docketing system rather than those Plaintiff may have assigned.

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release from administrative confinement, Plaintiff asserts, he was forced to sign an inventory sheet

for the return of his property without first being permitted to check the property to confirm that all

of it in fact was present (id.). Later, when Plaintiff was able to go through his property, he

discovered that certain legal documents (specifically, transcripts of his criminal proceedings) were

missing (id.). Plaintiff reported the loss of his documents, but was told that as he had signed the

inventory sheet he must have received the items (id.). Plaintiff submitted numerous request slips

regarding the missing transcripts and grieved the issue, but the documents were never located and

returned to him (id. at 4, 5). Variously making reference to violations of the First, Eighth, and

Fourteenth Amendments (id.), Plaintiff claims that the loss of his legal papers, which were

“necessary for preparation of post[-]conviction pleadings, [and] motions with the court” has resulted

in his being “delayed, denied, and/or deprived meaningful access to the courts” (id.). As relief,

Plaintiff apparently seeks an order directing the FDOC “to find my trial transcripts or be required

to provide replacement of these transcripts . . . .” (id. at 4).4

First, it is settled law that interference with an inmate’s access to the courts is a violation of

a First Amendment right actionable under § 1983. Lewis v. Casey, 518 U.S. 343, 116 S. Ct. 2174,

135 L. Ed. 2d 606 (1996); Bounds v. Smith, 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977);

Chandler v. Baird, 926 F.2d 1057 (11th Cir. 1991). As established in Lewis, however, to

successfully allege a constitutional violation based upon a denial of access to courts, Plaintiff must

specifically show how he was actually harmed or prejudiced with respect to the litigation in which

he was involved. Lewis, 518 U.S. at 350–51. The type of prejudice that is deficient in the

constitutional sense is that which hinders the inmate’s ability to actually proceed with his claim;

there is no constitutional mandate “to suggest that the State must enable the prisoner to discover

grievances, and to litigate effectively once in court.” Id. at 353. Importantly, “the injury

requirement is not satisfied by just any type of frustrated legal claim.” Id. at 354. Plaintiff must

show that he was prejudiced in a criminal appeal or post-conviction matter, or in a civil rights action

seeking “to vindicate ‘basic constitutional rights.’” Id. at 354–55 (quoting Wolff v. McDonnell, 418

U.S. 539, 579, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974)). Furthermore, he must allege actual injury

4

 Plaintiff presents this request for relief in “Statement of Facts” section of his complaint form; the “Relief

Requested” section of the form is blank (Doc. 10 at 5).

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“such as a denial or dismissal” and show that presentation of his case was impeded because of

Defendants’ actions. Wilson v. Blankenship, 163 F.3d 1284, 1290–91 (11th Cir. 1998) (citing

Lewis, 518 U.S. at 355); see also Bass v. Singletary, 143 F.3d 1442, 1445–46 (11th Cir. 1998). So

long as Plaintiff was able to litigate his claim, he cannot demonstrate that he was unconstitutionally

denied access to the courts. Wilson, 163 F.3d at 1291. Moreover, Plaintiff cannot show an injury

unless he shows that the case he was unable to pursue had arguable legal merit. Lewis, 581 U.S. at

353 n.3; Wilson,163 F.3d at 1291. In the instant case, although Plaintiff indicates that the legal

materials at issue were trial transcripts from his criminal case, he has alleged no prejudice or injury

as a result of the deprivation of these materials. He has alleged nothing that suggests that the denial

or dismissal of any appeal of his criminal case was due to the lack of his transcripts or that any

appeal of his sentence or conviction in fact had arguable legal merit. Thus, Plaintiff has failed to

state a claim of denial of access to courts regarding the alleged deprivation of his legal documents. 

 With respect to any Fourteenth Amendment due process claim, it is well established that

negligent or intentional deprivations of property resulting from random, unauthorized acts of

government officials do not become constitutional violations when there exist adequate remedies

under state law for Plaintiff to seek redress for the deprivation. Hudson v. Palmer, 468 U.S. 517,

533, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984); Parratt v. Taylor, 451 U.S. 527, 543–44, 101 S. Ct.

1908, 1917, 68 L. Ed. 2d 420 (1984), overruled on other grounds, Daniels v. Williams, 474 U.S.

327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (overruling Parratt to the extent that it states that mere

lack of due care by a state official may “deprive” an individual of life, liberty, or property under the

Fourteenth Amendment); Rodriguez-Mora v. Baker, 792 F.2d 1524, 1527 (11th Cir. 1986). The

FDOC provides an inmate grievance procedure for contesting misplaced or mishandled inmate

property. Furthermore, Florida Statutes § 768.28 (1993) provides a tort remedy for the alleged

deprivation of Plaintiff’s property. Indeed, attachments to Plaintiff’s amended complaint reflect that

he has pursued both avenues of relief, albeit unsuccessfully (see Doc. 10 at 12, 14–17).5 Thus, it is

evident that Plaintiff has had available to him adequate post-deprivation remedies for the alleged

5

 See also “Previous Lawsuits” section of the amended complaint, where Plaintiff cites two cases in which he

pursued relief concerning his lost paperwork (Doc. 10 at 3).

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unconstitutional taking of his property. Therefore, in this § 1983 matter Plaintiff has failed to state

an actionable claim under the Due Process Clause.

Although an allegation of a constitutionally improper motive for the taking of property may

enable an inmate to avoid the rule of Hudson v. Palmer, see Hall v. Sutton, 755 F.2d 786 (11th Cir.

1985), conclusory allegations or assertions of personal belief of disparate treatment or

discriminatory intent are insufficient. See GJR Invs., Inc. v. County of Escambia, Fla., 132 F.3d

1359, 1367–68 (11th Cir. 1998); Coon v. Ga. Pac. Corp., 829 F.2d 1563, 1569 (11th Cir. 1987). In

the instant case, although Plaintiff makes vague reference to an equal protection violation (see Doc.

10 at 5), Plaintiff has not alleged Defendants had any improper motive for taking or destroying his

personal property. Accordingly, to the extent one is asserted, an equal protection claim based on the

loss of Plaintiff’s legal property fails. 

A claim under the Eighth Amendment also fails. The Eighth Amendment provides that

“[e]xcessive bail shall not be required, nor excessive fines imposed nor cruel and unusual

punishments inflicted.” U.S. Const. amend VIII. The Eighth Amendment applies only to cases

involving punishment. Austin v. United States, 509 U.S. 602, 609–10, 113 S. Ct. 2801, 2805–06,

125 L. Ed. 2d 488 (1993) (“The purpose of the Eighth Amendment . . . was to limit the government’s

power to punish. The Cruel and Unusual Punishments Clause is self-evidently concerned with

punishment.”) (citing Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257,

109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989)). “What is necessary to show sufficient harm for

purposes of the Cruel and Unusual Punishment Clause depends upon the claim at issue . . . .”

Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992). “The objective

component of an Eighth Amendment claim is . . . contextual and responsive to contemporary

standards of decency.” Id. (quotations and citations omitted). “[E]xtreme deprivations are required

to make out a[n] [Eighth Amendment] conditions-of-confinement claim.” Id. at 9 (citation omitted).

With respect to these types of claims, “[b]ecause routine discomfort is part of the penalty that

criminal offenders pay for their offenses against society, only those deprivations denying the

minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth

Amendment violation.” Id. at 9 (quotations and citations omitted). Here, Plaintiff does not claim

that he was deprived of life’s necessities but rather that he was merely deprived of personal property

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in the form of legal transcripts. The loss of this property does not rise to the level of an Eighth

Amendment violation. This claim therefore is due to be dismissed as frivolous.

Based upon the foregoing, the undersigned concludes that this action should be dismissed

as frivolous and for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 

Accordingly, it is respectfully RECOMMENDED:

1. That this action be DISMISSED as frivolous and for failure to state a claim, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(i), (ii).

2. That the clerk be directed to enter judgment accordingly and close the file.

At Pensacola, Florida, this 14th day of February 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only. A copy of objections shall be

served upon the magistrate judge and all other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No. 5:10cv84/MCR/EMT