United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
Magistrate Judge filed a report on March 21, 2018,
recommending this action against defendants Gordy and Dunn be
dismissed without prejudice for failing to state a claim upon
which relief can be granted, pursuant to 28 U.S.C. §
1915A(b). (Doc. 23). Plaintiff filed objections to the report
and recommendation on March 29, 2018, and filed a motion for
leave to amend the complaint on April 2, 2018. (Docs. 24
& 25). For the reasons that follow, Plaintiff's
objections are OVERRULED and his motion for
leave to amend the complaint is DENIED.
Plaintiff contends the Magistrate Judge's decision to
construe Document 12 as an amended complaint is a
“gross error of fact.” (Doc. 24 at 6). He argues
the document is a request for emergency relief that now is
“moot' because the “need for an injunction
has long passed.” (Id. at 6). Even accepting
Plaintiff's assertion that the request, which is titled,
“Notice of Retaliation of defendant Gordy” (doc.
12) is not an amended complaint, the Magistrate Judge
correctly reported that the motion is moot.
Objections (Doc. 24).
objects to the dismissal of his access to the court claim,
arguing that his initial complaint contains “sufficient
factual matter” to plausibly state an access to the courts
claim. (Doc. 24 at 1). He also takes issue with the
Magistrate Judge's report that he “must state the
nature of his U.S. Supreme Court claims in order to show
actual injury” (id. at 5), arguing that the
Supreme Court's rejection of his belated application for
extension of time to file a petition for rehearing from the
denial of his petition for writ of certiorari sufficiently
supplies the “actual irreparable injury” required
for his access to the courts claim (id. at 1).
Plaintiff contends the claims he desired the Supreme Court to
review “have absolutely NO bearing in the claims of
denial of his access to court.” (Id. at 5). He
further asserts the Supreme Court only grants 1% of the
certiorari petitions presented to it and a denial of a
petition for writ of certiorari is not a ruling on the
merits. (Id.). Nonetheless, to satisfy the
court's “curiosity, ” Plaintiff states the
underlying “claim was fraud upon the Court where an
attorney was implicated” and “[s]uch [a] claim
was colorable for review and relief.” (Id.).
His proposed amended complaint does not mention the claim.
objections are overruled. As the Magistrate Judge correctly
reported, “the right [to meaningful access to the
courts] is ancillary to the underlying claim,
without which a plaintiff cannot have suffered injury by
being shut out of court.” (Doc. 23 at 9) (quoting
Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
The Magistrate Judge also correctly reported that “[a]
plaintiff must describe his predicate claims well enough to
establish that they are ‘nonfrivolous' and
‘arguable' to a degree ‘more than
hope.” Harbury, 536 U.S. at 416 (some internal
quotation marks omitted).
has not presented sufficient facts to establish that his
underlying (i.e., predicate) claim of “fraud
upon the Court where an attorney was implicated” is
nonfrivolous or arguable to a degree more than hope. It is
not even clear that the claim is the type protected by
“the fundamental constitutional right of access to the
courts.” Bounds v. Smith, 430 U.S. 817, 828
(1977); Lewis v. Casey, 518 U.S. 343, 346-348 (1996)
(“[t]he tools Bounds requires to be provided
are those that the inmates need in order to attack their
sentences, directly or indirectly, and in order to challenge
the conditions of their confinement.”). Additionally,
as Plaintiff concedes the United States Supreme Court only
hears about 1% of the petitions for writ of certiorari filed
per year. The Court has already rejected his request for
certiorari review. Even if Plaintiff had timely filed his
request for extension of time to file an application for
rehearing, there are no facts suggesting he had any hope of
success. Finally, it is apparent that lesser courts had
previously rejected the claim, casting more doubt on whether
the claim was nonfrivolous or arguable to a degree more than
remainder of Plaintiff's objections relate to his
contentions that (1) his claims against the defendants in
their official capacity are not barred by the doctrine of
sovereign immunity, (2) the same facts underlying his access
to the courts claims are also sufficient to state an Eighth
Amendment claim against the defendants, and (3) there are
sufficient facts stating claims against defendant Dunn in his
supervisory capacity. (Doc. 24 at 2-4). These objections are
The proposed amended complaint (Doc. 25).
proposed amended complaint, Plaintiff claims that the
defendants violated his “Constitutional rights and
privileges protected by the U.S. Constitution Art. IV
(Privileges and Immunities Clause), Art. VI (Supremacy
Clause), First Amendment (Access to Court), Fifth Amendment
(Due Process), and Fourteenth Amendment (Due Process and
Equal Protection Clause).” (Id. at
He presents the same facts concerning his untimely
application to the Supreme Court as support for the claims.
(Id. at 4). He also asserts that the defendants
failed “to create, implement, and enforce an EMERGENCY
grievance process . . . to exhaust concerning his denial of
access to court and procedural due process during” the
“lockdown.” (Id. at 6-7, 8-9).
“Supremacy Clause is not the source of any federal
rights” and “does not confer a right of legal
action.” Armstrong v. Exceptional Child Center,
Inc., 135 S.Ct. 1378, 1383-84 (2015) (internal citations
omitted). As such, Plaintiff's attempt to state a claim
grounded in the Supremacy Clause is fruitless. It has been
held that “[a]ccess to the courts . . . is grounded in
the First Amendment, the Article IV Privileges and Immunities
Clause, the Fifth Amendment, and/or the Fourteenth
Amendment.” Chappell v. Rich, 340 F.3d 1279,
1282 (11th Cir. 2003) (citing Harbury, 536 U.S. 403,
415 n.12 (2002). However, Plaintiff has not alleged facts to
show he suffered any actual injury, and as such, he has
failed to state an access to the courts claim upon which
relief can be granted.
assertion that the lack of an emergency grievance procedure
deprived him of access to the courts or procedural due
process is also meritless. The Eleventh Circuit has plainly
stated that “a prisoner does not have a
constitutionally-protected liberty interest in an inmate
grievance procedure.” Thomas v. Warner, 237
Fed.Appx. 435, 437-38 (11th Cir. 2007); see also Mann v.
Adams, 855 F.2d 639, 640 (9th Cir. 1988) (“There
is no legitimate claim of entitlement to a grievance
procedure.” Baker v. Rexroad, 159 Fed.Appx.
61, 62 (11th Cir. 2005) (the prisoner's right to petition
the government for redress is the right of access to the
courts, which is not compromised by the prison's refusal
to entertain his grievance”) (quoting Flick v.
Alba, 932 F.2d 728, 729 (8th Cir. 1991)).
Plaintiff has alleged no facts to support a Fourteenth
Amendment Equal Protection claim. “To establish an
equal protection claim, a prisoner must demonstrate that (1)
he is similarly situated to other prisoners who received more
favorable treatment; and (2) the state engaged in invidious
discrimination against him based on race, religion, national
origin, or some other constitutionally protected
basis.” Sweet v. Sec'y, Dep't of
Corr., 467 F.3d 1311, 1318 -1319 (11th Cir. 2006)
(citing Jones v. Ray, 279 F.3d 944, 946-47 (11th
Cir. 2001); Damiano v. Florida Parole and Probation
Comm'n, 785 F.2d 929, 932-33 (11th Cir.1986)).
Plaintiff does not allege that any other locked-down inmate
in the PC Unit was allowed access to the law library and law
librarians when he was denied the opportunity, or that the
defendants engaged in such behavior on the basis of race,
religion or national origin.
foregoing reasons, Plaintiffs motion to amend the complaint
(Doc. 25) is denied on the grounds of futility. See Hall
v. United Ins. Co. of Am.,367 F.3d 1255, 1262-63 (11th
Cir. 2004) (citing Foman v. Davis,371 U.S. 178, 182
(1962) (“[A] district court may properly deny leave to