Peterka v. Dixon

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DANIEL JON PETERKA, D.O.C. # 119773, Plaintiff, v. RICKY D. DIXON, in his official capacity as Secretary of the Florida Department of Corrections, and JPAY, LLC, Defendants.

No. 4:21cv367-WS-MAF

United States District Court, N.D. Florida, Tallahassee Division

March 17, 2023

REPORT AND RECOMMENDATION

MARTIN A. FITZPATRICK UNITED STATES MAGISTRATE JUDGE

The pro se Plaintiff initiated this case on September 7, 2021, ECF No. 1, by filing a civil rights complaint against the Secretary of the Department of Corrections and JPay, LLC, a contractor providing services to Florida prisoners. ECF No 1. Plaintiff subsequently paid the filing fee, ECF Nos. 6-7 and service was directed. ECF No. 13. After initially filing a motion to dismiss, ECF No. 26, and a motion to compel arbitration, ECF No. 27, Plaintiff was granted leave to file an amended complaint. ECF Nos. 40, 42.

Plaintiff's amended complaint was filed on September 28, 2022, pursuant to 42 U.S.C. § 1983. ECF No. 46. The amended complaint alleges that the DOC is violating his First and Fourteenth Amendment rights, ECF No. 46 at 6, and his rights under the Fifth Amendment, ECF No. 46 at 10, and Fourteenth Amendment Id. at 12. Plaintiff asserts Fifth and Fourteen Amendment claims against JPay as well. Id. at 10 12.

The Secretary, sued in his official capacity only, filed a motion to dismiss Plaintiff's amended complaint. ECF No. 52. JPay has also filed a separate motion to dismiss. ECF No. 54. Plaintiff was directed to file responses in opposition to those motions. ECF No. 55. Plaintiff has done so, ECF Nos. 56-57, and the motions are ready for a ruling.

Allegations of the Amended Complaint

Defendant JPay provides “multimedia kiosks and tablets to all prisoners housed in” the Department of Corrections. ECF No. 46 at 5. Through the kiosks and tablets, prisoners have access to an electronic messaging system, identified as “Secure Mail.” Id. at 6. Prison officials are authorized under Rule 33-602.900(7) to screen eCommunications and intercept any eCommunication “that violates state law, federal law, or Department rule,” without explanation. Id. at 7-8. Plaintiff alleges that he has had “multiple eCommunications censored without explanation by unidentified Department staff.” Id. at 8. Further, Plaintiff contends that the Department's Rule “did not create an accompanying procedure for either prisoners or their correspondents to appeal those rejections.” Id. Plaintiff asserts in Count I that the Department (Defendant Dixon) has violated his procedural due process rights, secured by the First and Fourteenth Amendments. ECF No. 46 at 6-9.

He further contends that Defendant JPay contracted to “provide black & white printing of Secure Mail messages for all inmates in Special Housing (not including attachments) at no cost to the inmate or the Department.” Id. at 10-11. Plaintiff is housed on death row and is in a “Special Housing Unit.” Id. at 11. However, Plaintiff alleges that Defendant JPay charged him numerous times for black & white printouts of his Secure Mail messages totaling almost $350 dollars. Id. Plaintiff asserts in Count II that Defendants JPay and the Department of Corrections have violated his rights “secured to him by the Takings Clause of the Fifth Amendment.” Id. at 10-12.

Plaintiff brings a third claim against both the Department and JPay. ECF No. 46 at 12-14. He contends that the taking of his money “amounts to deliberate indifference, shocks the conscience, and “amounts to outright theft.” Id. at 13. Plaintiff alleges that his Fourteenth Amendment substantive due process rights were violated by the actions of both Defendants who “teamed up” to make the use of the electronic message services the “sole means” for prisoners to receive incoming routine mail. ECF No. 46 at 13. He contends that he “has a constitutionally protected and fundamental right to property in the money” that the Department authorizes him to possess in his inmate media account. Id.

Defendant JPay is “sued for declaratory and injunctive relief as well as nominal and compensatory damages.” Id. at 5. Defendant Dixon is “sued in his official capacity for declaratory and injunctive relief as well as nominal and compensatory damages.” ECF No. 46 at 5.

Defendant Dixon's Motion to Dismiss

Defendant Dixon first argues that Plaintiff failed to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). ECF No. 52 at 5-21. In particular, Defendant argues that Plaintiff did not file a Petition to Initiate Rulemaking (a “PIRM”), which is an available administrative remedy. Id. at 10-21. Second, Defendant argues that Plaintiff's amended complaint fails to state a claim under the Takings Clause. Id. at 21-25. Defendant also argues that this Court lacks subject matter jurisdiction over Plaintiff's Fifth Amendment claim. Id. at 2527. Additionally, Defendant asserts that Plaintiff is not entitled to declaratory or injunctive relief. Id. at 27-29. Moreover, it is argued that Plaintiff's substantive due process claim is insufficient to state a claim. Id. at 29-30. Finally, Defendant asserts his entitlement to Eleventh Amendment immunity and Qualified immunity. ECF No. 52 at 30-33.

Defendant JPay's Motion to Dismiss

Defendant JPay contends that Plaintiff's claims against it fail because JPay is not a “state actor.” ECF No. 54. Even if Defendant JPay were deemed to be acting under color of state law, Defendant argues that the Fifth Amendment takings claim fails and must be dismissed. Id. Third, Defendant argues that Plaintiff's due process claim fails because Plaintiff's interest in his money is not protected by substantive due process. Id.

Standard of Review

The issue on whether a complaint should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failing to state a claim upon which relief can be granted is whether the plaintiff has alleged enough plausible facts to support the claim stated. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).^[1] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. at 1965); see also Wilborn v. Jones, 761 Fed.Appx. 908, 910 (11th Cir. 2019). “The plausibility standard” is not the same as a “probability requirement,” and “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 677 (quoting Twombly, 550 U.S. at 556). A complaint that “pleads facts that are ‘merely consistent with' a defendant's liability,” falls “short of the line between possibility and plausibility.” Iqbal, 129556 U.S. at 677 (quoting Twombly, 550 U.S. at 557).

The pleading standard is not heightened, but flexible, in line with Rule 8's command to simply give fair notice to the defendant of the plaintiff's claim and the grounds upon which it rests. Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (“Rule 8(a)'s simplified pleading standard applies to all civil actions, with limited exceptions.”). Pro se complaints are held to less stringent standards than those drafted by an attorney. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir. 1986) (citing Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). Nevertheless, a complaint must provide sufficient notice of the claim and the grounds upon which it rests so that a “largely groundless claim” does not proceed through discovery and “take up the time of a number of other people . . . .” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (quoted in Twombly, 550 U.S. at 558).

Analysis

1. Exhaustion of Administrative Remedies

Defendant Dixon asserts that “Plaintiff is required to exhaust all available administrative remedies prior to filing suit pursuant to the requirements of the PLRA ....” ECF No. 52 at 8. Because Plaintiff did not file a Petition to Initiate Rulemaking pursuant to § 120.54(7), Fla. Stat., Defendant argues that Plaintiff did not exhaust his administrative remedies. Id. at 9-10.

Defendant explains that the Florida Administrative Procedure Act, codified in Chapter 120 of the Florida Statutes, “governs judicial review of agency decisions” and “presumes that the procedures it makes available are necessary to exhaust administrative remedies ....” ECF No. 52 at 10. Defendant asserts that § 120.54(7) “is an available administrative remedy which allows a prison inmate to file a Petition to Initiate Rulemaking (‘PIRM').” Id. Because prisoners are “specifically authorized to file” such petitions, Defendant argues that Plaintiff must have done so to properly exhaust administrative remedies. Id. at 10-12. Defendant notes, however, that submitting a PIRM “is a separate process from the normal grievance process created by FDOC ....” Id. at 11. Yet Defendant contends that the “normal prisoner grievance process alone . . . is insufficient to properly notice FDOC about an administrative regulation.” Id. at 12.

In enacting the Prison Litigation Reform Act (PLRA), Congress mandated that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are...