Nathan Torres v. Florida Department of Corrections

Case: 17-14359 Date Filed: 07/11/2018 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-14359
Non-Argument Calendar
________________________

D.C. Docket No. 4:15-cv-00464-RH-CAS

NATAN TORRES,
a.k.a. Todrick Roberts,

Plaintiff - Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Defendant - Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(July 11, 2018)

Before WILLIAM PRYOR, FAY, and JULIE CARNES, Circuit Judges.

PER CURIAM:
Case: 17-14359 Date Filed: 07/11/2018 Page: 2 of 16

Plaintiff Natan Torres, a Florida prisoner, filed a pro se lawsuit against

Defendant Florida Department of Corrections that was removed to the United

States District Court for the Northern District of Florida. Styled as a Motion for

Declaratory Judgment, the complaint alleges that Defendant violated Plaintiff’s

constitutional rights by confiscating Uniform Commercial Code (“UCC”)

materials. The district court granted Defendant’s motion for summary judgment

and denied Plaintiff’s cross motion for summary judgment. Because Plaintiff has

not established that Defendant’s confiscation of his materials violated his

constitutional rights, we affirm.

I. BACKGROUND
A. Factual Background
Florida law requires Defendant to “protect the public through the

incarceration and supervision of offenders.” Fla. Stat. § 20.315(1). Defendant

employs officers to oversee its inmates. Those officers enforce rules to ensure

prison security and public safety. Some rules prohibit the possession of

contraband. One such rule, Florida Administrative Code Rule 33-602.203(7),

which the parties call the “UCC Contraband Rule,” prohibits the possession of

“any forms that may be used in the fraudulent filing of Uniform Commercial Code

liens and/or publications that promote this practice.”

2
Case: 17-14359 Date Filed: 07/11/2018 Page: 3 of 16

Defendant promulgated the UCC Contraband Rule to curtail fraudulent

activity, particularly by sovereign citizens. As explained by Carter Hickman, a

Correctional Services Consultant for Defendant, “[t]he U.S. Department of Justice

defines sovereign citizens as a domestic terrorist movement comprised of a

network of loosely affiliated individuals who hold extremist beliefs that federal,

state, and local governments are operating illegitimately.” “Sovereign citizens

often engage in many fraudulent financial schemes, often targeting government

officials with various tactics used to harass, intimidate, and psychologically

threaten them . . . includ[ing] creating fraudulent liens representing a fabricated

debt supposedly owed by the government official to the sovereign citizen.”

On January 3, 2013, Defendant’s officers found UCC paperwork in

Plaintiff’s locker while he was incarcerated at Century Correctional Institution in

Century, Florida. Officers determined the paperwork to be UCC contraband.

Officer K. Bedsole seized the contraband and issued a Disciplinary Report against

Plaintiff for possession of contraband. Plaintiff was “charged with a violation of

F.A.C. Chapter 33-601.314, Rules of Prohibited Conduct, 3-12, Possession of any

Other Contraband.” Plaintiff pled guilty to the charge and served 15 days of

disciplinary confinement, but did not lose any gain time.

3
Case: 17-14359 Date Filed: 07/11/2018 Page: 4 of 16

B. Procedural History
In 2015 Plaintiff filed a Motion for Declaratory Judgment in the Second

Judicial Circuit in and for Leon County, Florida, challenging the UCC Contraband

Rule and its application to him. Plaintiff’s complaint alleges that: (1) the “UCC

Contraband Rule as adopted by [Defendant] . . . infringes inmates state and federal

constitutional and statutory due process of law rights to ‘legitimately’ possess,

study, and practice UCC private administrative remedies and processes . . .”; (2)

the UCC Contraband Rule is constitutionally invalid due to being void for

vagueness; (3) Defendant improperly promulgated the UCC Contraband Rule; and

(4) Defendant arbitrarily applied the UCC Contraband Rule to him.

On September 25, 2015, Defendant filed a Notice of Removal, and removed

Plaintiff’s case to the United States District Court for the Northern District of

Florida. The parties cross moved for summary judgment. On August 16, 2017, the

Magistrate Judge issued a report and recommendation, recommending that

Plaintiff’s Motion for Summary Judgment be denied, Defendant’s Motion for

Summary Judgment be granted in part and denied in part. Plaintiff filed objections

to the report and recommendation. On September 11, 2017, the district court

issued an order adopting the report and recommendation over Plaintiff’s

objections.

4
Case: 17-14359 Date Filed: 07/11/2018 Page: 5 of 16

On September 13, 2017, the district court entered judgment in favor of

Defendant and dismissed Plaintiff’s claims on the merits. Plaintiff timely filed a

Notice of Appeal.

II. DISCUSSION
A. Standard of Review
We review de novo the district court’s grant of summary judgment, drawing

“all reasonable inferences in the light most favorable to” Plaintiff. See Bowen v.

Manheim Remarketing, Inc., 882 F.3d 1358, 1362 (11th Cir. 2018). Summary

judgment may be granted only if “there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotation

marks omitted). A genuine issue of material fact exists when “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248.

Summary judgment is appropriate only if a case is “so one-sided that one party

must prevail as a matter of law.” See id. at 251–52.

B. First Amendment Claim
Plaintiff contends that the UCC Contraband Rule deprives him of legitimate

reading material in violation of the First Amendment. “Prison walls do not form a

barrier separating prison inmates from the protections of the Constitution.” Prison

Legal News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 964 (11th Cir. 2018)

(quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). Inmates retain some
5
Case: 17-14359 Date Filed: 07/11/2018 Page: 6 of 16

constitutional rights in prison. Id. For instance, inmates like Plaintiff have a First

Amendment right to send and receive mail and to receive and possess publications.

Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). “But that right is limited.”

Prison Legal News, 890 F.3d at 965 (citing Lawson v. Singletary, 85 F.3d 502, 509

(11th Cir. 1996) (noting the “more limited nature of . . . First Amendment rights”

in the penal context)). Plaintiff bears the burden to disprove the validity of the

UCC Contraband Rule. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

“[T]he Turner Court held that a prison regulation affecting constitutional

rights is valid as long as ‘it is reasonably related to legitimate penological

interests.’” Prison Legal News, 890 F.3d at 965 (quoting Turner, 482 U.S. at 85,

89). “[U]nder Turner we owe ‘wide-ranging’ and ‘substantial’ deference to the

decisions of prison administrators because of the ‘complexity of prison

management, the fact that responsibility therefor is necessarily vested in prison

officials, and the fact that courts are ill-equipped to deal with such problems.’” Id.

(quoting Al-Amin v. Smith, 511 F.3d 1317, 1328 (11th Cir. 2008) (quotation marks

omitted)). The Turner Court established four factors to determine the

reasonableness of prison regulations: (1) whether there is a “valid, rational

connection between the prison regulation and the legitimate governmental interest

put forward to justify it”; (2) “whether there are alternative means of exercising the

right that remain open to prison inmates”; (3) what “impact accommodation of the

6
Case: 17-14359 Date Filed: 07/11/2018 Page: 7 of 16

asserted constitutional right will have on guards and other inmates, and on the

allocation of prison resources generally”; and (4) whether “[Plaintiff] can point to

. . . alternative[s] that fully accommodate[ ] [his] rights at de minimis cost to valid

penological interests.” Turner, 482 U.S. at 89–91.

We conclude that the UCC Contraband Rule satisfies all four of the Turner

factors. The UCC Contraband Rule states:

No inmate shall manufacture or possess any forms that may be used in
the fraudulent filing of Uniform Commercial Code liens and/or
publications that promote this practice. An inmate shall not possess
any Uniform Commercial Code (UCC) Article 9 form, including but
not limited to any financing statement (UCC1, UCC1Ad, UCC1AP,
UCC3, UCC3Ad, UCC3AP), or correction statement (UCC5),
whether printed, copied, typed or hand written, or any document
concerning a scheme involving an inmate’s “strawman,” “House Joint
Resolution 192 of 1933,” the “Redemptive Process,” “Acceptance for
Value” presentments or document indicating copyright or attempted
copyright of an inmate’s name absent prior written authorization from
the warden.

Fla. Admin. Code R. 33-602.203(7).

With respect to the first Turner factor, the UCC Contraband Rule furthers

the legitimate government interest of preventing prisoners from filing fraudulent

liens under the UCC. See Monroe v. Beard, 536 F.3d 198, 208 (3d Cir. 2008)

(acknowledging rational nexus between Pennsylvania prison regulation providing

for the confiscation of UCC-related materials, publications, and information on

copyrighting names and Department of Corrections’ penological interest in

preventing criminal activity like the filing of fraudulent liens within the DOC).

7
Case: 17-14359 Date Filed: 07/11/2018 Page: 8 of 16

Defendant has a legitimate interest in preventing and reducing criminal activity

among its inmates. See Turner, 482 U.S. at 91; Pell v. Procunier, 417 U.S. 817,

822 (1974). Hickman testified that “[t]he Rule specifically addresses and describes

documents and terms known to be associated with sovereign citizens which are

often the basis of illegal or illicit sovereign activities.” That alone is more than

sufficient to demonstrate a rational nexus between the Rule and a legitimate

government interest.1 See Prison Legal News, 890 F.3d at 968 (noting that actual

evidence of illicit activity is not required to satisfy the first Turner factor). The

first factor favors Defendant.

Under the second Turner factor, numerous other means exist for Plaintiff to

exercise his First Amendment rights. The UCC Contraband Rule narrowly targets

materials relied upon by sovereign citizens to file fraudulent liens and frivolous

documents with the courts. Plaintiff still has available to him a wide range of legal

materials and publications that do not pertain to the filing of fraudulent liens. See

Monroe, 536 F.3d at 208–09. Those materials include, for instance, general legal

materials or case law concerning the UCC that do not implicate the specific

1
We note that “[t]he abusive practice of prisoners filing baseless liens and/or UCC financing
statements for the purpose of harassment and credit impairment of the alleged debtor (almost
always a state or federal official involved with securing the prisoner’s incarceration) is well
documented.” Jones v. Caruso, 569 F.3d 258, 270 (6th Cir. 2009) (quoting Lewis v. Caruso, No.
1:08-CV-28, 2008 WL 4283652, at *4 (W.D. Mich. Sept. 10, 2008) (collecting cases)); see also
Granda v. Middlebrooks, No. 5:10-CV-551-OC-29SPC, 2013 WL 1104645, at *5 (M.D. Fla.
Mar. 18, 2013).

8
Case: 17-14359 Date Filed: 07/11/2018 Page: 9 of 16

categories of fraudulent activity identified in the UCC Contraband Rule. See

Prison Legal News, 890 F.3d at 973 (noting that “adequate alternatives” can exist

even when prisoners are cut off from unique activities). Moreover, the Rule

provides a mechanism for requesting an exception to the Rule from the warden.

Fla. Admin. Code R. 33-602.203(7). The second factor does not disfavor

Defendant.

Next, we apply the third Turner factor and evaluate the impact of

accommodating the Plaintiff’s asserted right to possess the contraband on guards,

other inmates, and the allocation of prisoner resources generally. Defendant

argues, and we agree, that accommodating a right to possess the materials

prohibited by the UCC Contraband Rule likely would have a negative impact,

particularly on guards, prison administrators, and other government officials that

are often the target of fraudulent UCC filings. Invalidating the UCC Contraband

Rule could lead to financial harm to those individuals and cause a needless

expenditure of Defendant’s resources to detect, prevent, and deal with fraudulent

filings. See Prison Legal News, 890 F.3d at 973; Monroe, 536 F.3d at 209. The

third Turner factor favors Defendant.

Finally, as to the fourth Turner factor, Plaintiff has failed to point to an

alternative to the UCC Contraband Rule that fully accommodates his interests at de

minimis cost to valid penological interests. The UCC Contraband Rule is not an

9
Case: 17-14359 Date Filed: 07/11/2018 Page: 10 of 16

“exaggerated response to prison concerns.” Prison Legal News, 890 F.3d at 974.

As noted, the UCC Contraband Rule narrowly targets materials often used by

inmates to harass and threaten others with fraudulent UCC filings. Plaintiff

suggests that possession of the prohibited materials should be permitted for

legitimate uses. But forcing prison officials to wait for discovery of criminal

activity would impose more than a “de minimis” cost to Defendant’s interest in

preventing criminal activity. 2 See id. at 975 (the Constitution does not require

Defendant to engage in the fantasy that criminals will follow the rules and abstain

from restricted activities when given access to prohibited materials); Monroe, 536

F.3d at 209. Further, the UCC Contraband Rule addresses Plaintiff’s concern of

legitimate UCC activity by permitting inmates to demonstrate a valid need for the

prohibited materials and obtain authorization from the warden to possess them.

This final factor favors Defendant.

2
Although Florida Administrative Code Rule 33-501.401(3)(f) provides authority for Defendant
to reject inmate receipt of a publication that “encourages or instructs in the commission of
criminal activity,” the UCC Contraband Rule is not limited to publications and specifically
restricts the manufacture and possession of certain UCC materials. This is not a case like Jones
where the Sixth Circuit held that the district court did not abuse its discretion in granting a
preliminary injunction where the record showed that the challenged rule was overinclusive and
other effective rules had been implemented to allow prisoners to receive legitimate UCC-related
materials while still limiting fraudulent filings. 569 F.3d at 272–75. Unlike in Jones, Plaintiff
did not demonstrate that other less burdensome rules exist to address Defendant’s penological
interests. To the contrary, Plaintiff acknowledges that the UCC Contraband Rule deprived him
of material he “was authorized and approved to receive by mail” via rule 33-501.401. And the
UCC Contraband Rule, which forbids inmates from manufacturing or possessing “any forms that
may be used in the fraudulent filing of Uniform Commercial Code liens and/or publications that
promote this practice,” is narrower than the rule in Jones which prohibited “[m]ail regarding
actions that can be taken under the [UCC] which could be used to harass or threaten another
individual.” Fla. Admin. Code R. 33-602.203(7); Jones, 569 F.3d at 274 n.3.
10
Case: 17-14359 Date Filed: 07/11/2018 Page: 11 of 16

The record shows that a “reasonable relationship” does exist between the

UCC Contraband Rule and Defendant’s prison security and public safety interests.

Turner, 482 U.S. at 91. Because all four Turner factors favor Defendant, we hold

that the UCC Contraband Rule does not violate the First Amendment.

C. Void for Vagueness
Plaintiff maintains that the UCC Contraband Rule is “vague as applied” and

that Defendant arbitrarily deprived him of his property. The UCC Contraband

Rule is void for vagueness if it “fails to provide a person of ordinary intelligence

fair notice of what is prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” United States v. Williams, 553

U.S. 285, 304 (2008).

The UCC Contraband Rule fairly describes the specific UCC materials

prohibited and is not vague. The Rule provides that inmates may not “manufacture

or possess” forms “that may be used in the fraudulent filing of Uniform

Commercial Code liens and/or publications that promote this practice.” Fla.

Admin. Code R. 33-602.203(7). The Rule further specifies names of prohibited

forms (i.e., any UCC Article 9 form, including but not limited to any financing

statement (UCC1, UCC1Ad, UCC1AP, UCC3, UCC3Ad, UCC3AP), or correction

statement (UCC5)) and identifies the specific schemes that promote the practice of

filing fraudulent liens (e.g., documents concerning an inmate’s “strawman,”

11
Case: 17-14359 Date Filed: 07/11/2018 Page: 12 of 16

“House Joint Resolution 192 of 1933,” the “Redemptive Process,” “Acceptance for

Value” presentments or documents indicating copyright or attempted copyright of

an inmate’s name). Id. Plaintiff failed to establish that the UCC Contraband Rule

is so vague as to allow Defendant unbridled discretion to impermissibly ban

legitimate materials.

Plaintiff alleges discriminatory enforcement in that Defendant confiscated

his UCC materials when the UCC Contraband Rule prohibits only paperwork

related to establishing a copyright in an inmate’s name. But the Rule is not so

limited. The Rule articulates the nature of the prohibited materials and makes clear

that documents concerning copyright of an inmate’s name are but one of several

categories of documents banned. 3 Other than his assertion that his UCC materials

did not concern copyright of names under his unpersuasive construction of the

Rule, Plaintiff offers no evidence demonstrating that Defendant selectively applied

the Rule to him. Plaintiff likewise did not introduce any evidence that Defendant

failed to apply the Rule in a uniform fashion. In short, nothing in the record

supports Plaintiff’s allegation that the confiscation of his UCC materials was

3
Plaintiff asserts that the district court failed to consider an August 26, 2014, memo to wardens
that he claims establishes that the UCC Contraband Rule is limited to paperwork related to
establishing a copyright in an inmate’s name. That memo references the specific materials
identified in the UCC Contraband Rule and, like the Rule itself, identifies documents where an
inmate indicates a copyright or attempted copyright in his name as merely one of several kinds of
prohibited UCC related documents.
12
Case: 17-14359 Date Filed: 07/11/2018 Page: 13 of 16

arbitrary, much less “clearly the result of capricious interference (personal

prejudice).”

Plaintiff’s reliance on the holding in Farid v. Ellen, 593 F.3d 233, 242 (2d

Cir. 2010) is also misplaced. In Farid, the Second Circuit found a prison rule

vague as applied because it improperly required the inmate “to engage in some

kind of interpretive construction, combining [an inmate committee’s] by-laws with

the prison rules in order to determine whether materials that violate the former

might at the will of prison officials be read to constitute contraband under the

latter.” Farid, 593 F.3d at 242. That is not the case here. The UCC Contraband

Rule expressly and clearly describes the banned materials in a single rule. 4

D. Due Process
Plaintiff asserts that he pled guilty under “duress” and with “inadequate

notice” of the UCC Contraband Rule and that, consequently, enforcement of the

Rule against him violated his procedural due process rights. We find that Plaintiff

failed to raise any genuine issues of material fact supporting these allegations.5

4
Plaintiff’s reliance on Jones in his complaint and elsewhere for the proposition that the UCC
Contraband Rule has “generally already been deemed constitutionally invalid due to being void
for vagueness and its arbitrary application” is similarly misplaced. The Jones court held that the
plaintiff “clearly understood that [the contraband rule at issue] prohibited the UCC-related
materials he possessed” and, therefore, he had no standing to raise a vagueness claim on behalf
of other prisoners. Jones, 569 F.3d at 277.
5
Defendant argues that Plaintiff’s attempted challenge of his disciplinary conviction as an
unlawful deprivation of property are improper and should not be considered because they were
raised for the first time on summary judgment. Although plaintiffs cannot raise new claims at
the summary judgment stage, Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314–15
13
Case: 17-14359 Date Filed: 07/11/2018 Page: 14 of 16

“With any procedural due process challenge, we must first determine

whether the injury claimed by the plaintiff is within the scope of the Due Process

Clause.” Kirby v. Siegelman, 195 F.3d 1285, 1290 (11th Cir. 1999). Here,

Plaintiff did not lose any gain time as a result of the disciplinary action and has not

established the loss of a protected liberty interest. Wolff v. McDonnell, 418 U.S.

539, 556 (1974). Nor does Plaintiff have a protected property interest in materials

properly deemed contraband. See Baker v. Piggott, 833 F.2d 1539, 1540 (11th Cir.

1987) (affirming dismissal of due process claim where officer confiscated cash

money deemed “contraband” under prison rules).

Plaintiff pled guilty to possession of contraband after declining staff

assistance during the investigation, foregoing a disciplinary hearing. The record

does not contain any evidence supporting Plaintiff’s contention that he pled guilty

under “duress as Plaintiff did not understand the charge.” As noted, the UCC

Contraband Rule clearly specifies the items deemed contraband and Plaintiff’s

(11th Cir. 2004), we liberally construe pro se pleadings, Ponton v. Sec’y, Fla. Dep’t of Corr.,
891 F.3d 950 n.3 (11th Cir. 2018). Here Plaintiff alleged that the “UCC Contraband Rule as
adopted by [Defendant] . . . infringes inmates state and federal constitutional and statutory due
process of law rights to ‘legitimately’ possess, study, and practice UCC private administrative
remedies and processes . . .” Plaintiff also challenged the Rule due to Defendant
“[p]romulgating [the] rule in special procedures to circumvent the mandatory rule adoption
procedures—which is an invalid exercise of delegated legislative authority.” Plaintiff further
alleges that Defendant “unwarrantedly administered upon and against Plaintiff the following . . .
Confiscated and permanently deprived Plaintiff of property due to ‘mere legal possession’ of
UCC study materials absent any fraudulent practices . . .” Liberally construed, Plaintiff’s
complaint raises procedural due process issues concerning his disciplinary conviction.

14
Case: 17-14359 Date Filed: 07/11/2018 Page: 15 of 16

later construction of the Rule to prohibit only copyright materials is unfounded.

The record also demonstrates that, contrary to Plaintiff’s contention, Defendant

posted the Rule for comment from September 30, 2011, until October 21, 2011,

more than a year before applying it to Plaintiff.

Plaintiff also has not introduced any evidence that his confiscated materials

are not contraband as defined by the properly interpreted UCC Contraband Rule

that includes all the items listed, not just those pertaining to a copyright in a name.

The record does not clearly establish the precise nature of the materials Defendant

confiscated from Plaintiff. Plaintiff, however, argued he was entitled to receive

material from “sovereign” agencies and he attached to his complaint as Exhibit 21

a document entitled “Information Packet and Introduction to the I.S.A.

International Sovereigns Association” published “by and Through The American’s

Bulletin.” Hickman testified that the American’s Bulletin is a monthly newspaper

published by Robert Kelly, a long-time leader of the sovereign citizen movement.

Hickman explained that “according to a 2010 special report from the Anti-

Defamation League, the American’s Bulletin acts as the ‘New York Times of the

sovereign citizen movement,’ as many new sovereign citizen theories are first

printed there.” Another document Plaintiff submitted with his complaint as

Exhibit 11 and entitled “Complete Administrative Services” addresses commercial

administrative remedies and states that, for an $850 donation, the donor can obtain

15
Case: 17-14359 Date Filed: 07/11/2018 Page: 16 of 16

“everything you need to be Secured,” including forms deemed contraband (e.g.,

Contraband Rule. Plaintiff has not established any genuine issues of material fact

supporting his claim that Defendant improperly applied the UCC Contraband Rule

to him.

III. CONCLUSION
For the reasons explained above, we AFFIRM the decision of the district

court.