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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TYRONE FIELDS,

Plaintiff,

vs. CASE NO. 5:09CV298-RS/AK

JAMES DEKLE, et al,

Defendants.

 /

O R D E R

Plaintiff has filed a civil rights complaint against over twenty defendants in the

Florida Department of Corrections concerning the DOC’s decision not to credit him with

the years he was released in error and their allegedly unconstitutional acts in rearresting him. (Doc. 1). Plaintiff is again released upon expiration of sentence and is

living in Washington. 

As an initial matter, Plaintiff has filed a motion for leave to proceed without

prepayment of court costs, but the application is incomplete and unsigned. Before the

case can proceed, the Court must determine whether Plaintiff is entitled to proceed in

forma pauperis upon a complete and signed affidavit of financial status. Thus, the Clerk

is herein directed to mail to Plaintiff another Motion and Affidavit, which he should

complete, sign and return. Thus, the incomplete motion (doc. 2) is DENIED.
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The Court has also reviewed his complaint and finds that it should be amended

and that Plaintiff should clarify some matters crucial to the Court’s consideration of the

claims alleged. 

Plaintiff’s primary claim, that he was not credited for the years he was released in

error, is confused by other claims which are not civil rights issues and should be deleted

from an amended complaint. All the defendants associated with these claims should

also be deleted. For example, Plaintiff’s claims of verbal “assault” and defamation are

not civil rights violations, and the number of persons whom he claims called him names

and threatened him should be deleted from his amended complaint. See Evans v. City

of Zebulon, 351 F.3d 485, 496 (11th Cir. 2003)(racial slurs do not create a cause of

action under section 1983), vacated on other grounds; Keenan v. Hall, 83 F3d 1083,

1092 (9th Cir. 1996) (assaultive comments by prison guard not enough to implicate the

Eighth Amendment); Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987) (mere threat does

not constitute constitutional wrong); Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.

1989) (prisoner has no constitutionally guaranteed immunity from being falsely or

wrongly accused of conduct which may result in deprivation of protected liberty interest);

 Siglar v. Hightower, 112 F.3d 191, 193 (5 Cir. 1997) (verbal abuse not cognizable

under 1983); Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (same), cert.

denied, 485 U.S. 982 (1988) (same). Thus, these claims and the persons against

whom they are made should be deleted from an amended complaint.

Likewise, any claims Plaintiff is making against persons for not responding to his

grievances or for not responding as he wanted them to, should be left out of an

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amended complaint. Federal courts which have addressed the issue of whether

defendants may be held liable for their participation or lack thereof in the grievance

process have held that inmates are not constitutionally entitled to a grievance

procedure, and therefore, the state creation of such a procedure does not give rise to a

substantive constitutional right, particularly a liberty interest under the Due Process

Clause.1 Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994), cert. denied 514 U.S. 1022, 115

S. Ct. 1371, 131 L. Ed. 2d 227 (1995); Smith v. Corrections Corporation of America, 19

Fed. Appx. 318, 321 (6th Cir. 2001); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir.

1996); Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991); Mann v. Adams, 855 F.2d 639,

640 (9th Cir. 1988), cert. denied 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 213 (1988). 

Liability, therefore, cannot be predicated upon a claim that the defendants failed to

process grievances, Buckley v. Barlow, 997, F.2d 494, 495 (8th Cir. 1993), or failed to

process them effectively, LaFlame v. Montgomery County Sheriff’s Department, 3 Fed.

Appx. 346, 347 (6th Cir. 2001), or failed to process them timely, Azeez v. DeRobertis,

568 F.Supp. 8, 10 (N.D. Ill. 1982). See also Massey v. Helman, 259 F.3d 641 (7th Cir.

2001) (failure to provide grievance forms not a cognizable claim); Allen v. Wood, 970 F.

Supp. 824, 832 (E.D. Wash. 1997) (improper processing not cognizable); Ainsworth v.

Terhune, 2002 WL 1837806 (N.D. Cal.) (inordinate delay not a claim). 

1

 An inmate cannot claim a due process violation unless he can show a

deprivation of a protected liberty interest, and such interests are generally limited to (a)

those actions that unexpectedly alter the inmates term of imprisonment, and (b) those

actions that impose an atypical and significant hardship in relation to the ordinary

incidents of prison life. Sandin v. Connor, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300,

132 L. Ed. 2d 418 (1995). For an inmate to have a protectible interest, he must have a

legitimate claim of entitlement to it. Greenholtz v. Inmates of Nebraska Penal and

Corrections Complex, 442 U. S. 1, 7, 99 S. Ct. 2100, 2104, 60 L. Ed. 2d 668 (1979).

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Finally, Plaintiff should follow the directions in the form complaint and beside

each defendant state his claim against that person and the facts supporting the claim. 

Exhibits should be referenced in the complaint, but attached to it and not interspersed

throughout the pages. If Plaintiff’s primary complaint is about being re-arrested and not

given credit for time at liberty then he should name only those persons who made the

decisions relative to his release, his re-arrest, or not to credit him with the time he was

released. The correct defendant or defendants should have been identified in the state

court proceedings in which Plaintiff was represented by counsel. 

This is another issue that warrants some explanation. What happened in state

court on these very claims? Papers attached to an earlier filed suit alleging the same

claims, Case No. 5:09cv137, which Plaintiff voluntarily dismissed, show that he was rereleased on March 27, 2009, upon expiration of sentence. (Doc. 1, Exhibits p. 24). This

is contrary to other papers filed in this case that show his release date was May 17,

2015. (Doc. 1, Exhibits, p. 52). Thus, it appears at least in the papers before the Court

that Plaintiff had a favorable result in the state court and was released. This is unclear

and needs to be clarified, perhaps by attaching copies of any orders entered by the

state court following the April 2009 hearing. Further, Plaintiff and the exhibits he has

provided to the Court show that he was represented by counsel previously as he has

challenged the sentence and re-arrest procedures through the state court system. He

has now moved for appointment of counsel. (Doc. 3). Appointment of counsel in a

1983 suit is not a right, it is a privilege and is justified only by exceptional

circumstances, such as where the facts and legal issues are so novel or complex as to

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require the assistance of a trained practitioner. Fowler v. Jones, 899 F.2d 1088 (11th

Cir. 1990). He states in his motion that the firm is no longer able to represent him, but it

is unclear when they ceased their representation. One of his attorneys was quoted in a

newspaper article attached to the complaint dated April 5, 2009, stating that a hearing

was scheduled and numerous state court appeals likely to follow that would take years

before the case would end up in federal court. It is only seven months later and Plaintiff

is now without counsel, no longer incarcerated, and filing in federal court. These

matters need to be clarified before the Court can determine whether this matter should

go forward and whether efforts should be made to appoint counsel. Thus, until an

amended complaint is filed as directed and the issues regarding previous counsel are

clarified, a ruling on the present motion for appointment (doc. 3) will be held in

abeyance. 

To amend his complaint, Plaintiff must completely fill out a new civil rights

complaint form, marking it "Amended Complaint." Plaintiff is advised that the

amended complaint must contain all of Plaintiff's allegations and should not in any

way refer to the original or amended complaints. An amended complaint completely

replaces all previous complaints and all earlier complaints are disregarded. N.D.

Fla. Loc. R. 15.1. Plaintiff should file the amended complaint in the Court and keep

one identical copy for himself. Plaintiff need not file service copies until instructed to

do so by the court.

Accordingly, it is hereby 

ORDERED:

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1. The clerk of court shall forward to Plaintiff another Section 1983 complaint

form for prisoners since his complaints arise from conditions of his confinement, but the

Clerk shall forward a form motion and affidavit of financial status for non-prisoners since

he is now released.

2. Plaintiff must respond to this order by December 7, 2009.

3. Failure of Plaintiff to respond to this order or submit the requested

information or explain his inability to do so will result in a recommendation to the

District Judge that this action be dismissed.

4. Plaintiff’s Motion for leave to proceed (doc. 2) is DENIED.

5. The Court will hold in abeyance a ruling on the motion for appointment of

counsel (doc. 3) until the amended complaint if filed and more is known about the status

of his state court proceedings and representation by counsel in those proceedings.

DONE AND ORDERED this 10th day of November, 2009.

s/ A. KORNBLUM 

ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

No. 5:09cv298-RS/AK