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                                                                      [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 12-10431
                              ________________________

                       D.C. Docket No. 3:11-cv-01261-RBD-JBT

KENNETH FORD,

                                                                         Plaintiff-Appellant,

                                            versus

MARK HUNTER, Sheriff,
BENNIE COLEMAN, Captain, Jail Administrator,

                                                                     Defendants-Appellees.

                              ________________________

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

                                     (August 12, 2013)


Before DUBINA, JORDAN and BALDOCK,* Circuit Judges.

BALDOCK, Circuit Judge:


       *
        Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
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      With the passage of 28 U.S.C. § 1915A, Congress provided district courts

the opportunity to screen certain prisoner lawsuits quickly. Through this process,

district courts determine whether the complaint, or any portion of the complaint,

should be dismissed because it “is frivolous, malicious, or fails to state a claim

upon which relief may be granted.” 28 U.S.C. § 1915A(b). But in conducting its

review, the district court must construe a pro se prisoner’s complaint liberally.

Green v. Nelson, 595 F.3d 1245, 1254 n.4 (11th Cir. 2010). In this case, the

district court determined upon screening pursuant to § 1915A that Plaintiff’s

complaint was frivolous and dismissed the complaint “without prejudice.”

Exercising our jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

                                          I.

      Law enforcement arrested Plaintiff on murder and arson charges. While a

pretrial detainee at the Columbia County Detention Facility, Plaintiff filed a

complaint in the United States District Court for the Middle District of Florida

alleging the following facts. In 2010, Plaintiff requested access to the detention

facility’s law library. The jail denied his request because a public defender

represented Plaintiff. In May 2011, Plaintiff began writing outside sources for

legal assistance. Plaintiff received a letter from the Florida Bar in July 2011,

which “had been opened and taped back together” before being “put under

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[Plaintiff’s] door” while he slept. In August 2011, a jail corporal brought Plaintiff

mail that “was clearly marked legal mail and had the ACLU logo on it,” but had

been opened and taped back together. The corporal told Plaintiff she received the

letter in that condition.

      Plaintiff filed an informal grievance. Defendant Captain Bennie Coleman

told Plaintiff the grievance was approved and he would remind the staff that legal

mail should be opened in Plaintiff’s presence. But that same month, Plaintiff

received a letter from an attorney that was clearly marked legal mail that had been

opened and taped back together. Plaintiff complained to a guard. A sergeant

returned the letter to Plaintiff, having written on it that it was opened by mistake

and had not been read. After that incident, Plaintiff filed another grievance.

Defendant Coleman told Plaintiff he would “stop [Plaintiff’s] legal mail and give

it to [Plaintiff] at his convenience” if Plaintiff did not stop complaining. Plaintiff

alleged he stopped complaining because he needed his legal mail. Plaintiff later

wrote Defendant Coleman to see if he could appeal his decisions. Coleman,

however, told Plaintiff he had “exhausted all [his] grievances at [the] jail.”

      Plaintiff then filed his complaint in the district court. He explicitly alleged

Defendants violated the Fourth Amendment and the Florida Model Jail Standards.

He requested that the Government not be allowed to use any information obtained

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from the legal mail against him in court and for the sheriff to install a secure box

for legal mail, allow access to the law library, and pay all filing fees. The district

court dismissed the complaint on screening pursuant to 28 U.S.C. § 1915A

without explaining how it construed Plaintiff’s claims.1 The court held Plaintiff

did not allege the required injury to make out an access to courts or First

Amendment claim. Further, the court concluded Plaintiff did not state a claim

pursuant to the Due Process Clause or the Fourth Amendment. In its order, the

district court dismissed the complaint “without prejudice” and ordered the clerk of

court to “close this case.” Because the district court dismissed the case pursuant to

§ 1915A, Defendants have never appeared.

       Plaintiff appealed and we appointed counsel. On appeal, Plaintiff argued

the district court erred (1) in dismissing Plaintiff’s First Amendment free speech

claim, (2) in dismissing Plaintiff’s Sixth Amendment claim, (3) by failing to

liberally construe Plaintiff’s First Amendment retaliation claim, and (4) by not



       1
          At the time Plaintiff filed his complaint, he was proceeding pro se. As mentioned
above, the law is well established that “pro se pleadings are generally held to a less stringent
standard than pleadings drafted by attorneys, and thus should be liberally construed.” Green v.
Nelson, 595 F.3d 1245, 1254 n.4 (11th Cir. 2010). “[W]e read pro se briefs liberally to ensure
that such litigants do not, through their ignorance of legal terminology, waive claims.” United
States v. Hung Thien Ly, 646 F.3d 1307, 1316 (11th Cir. 2011). But, pro se litigants “must
present a claim in clear and simple language such that the district court may not misunderstand
it.” Dupree v. Warden, 715 F.3d 1295, 1299 (11th Cir. 2013). In the future, the district court
should expressly state whether it construes a complaint liberally.

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applying the so-called Cohen exception when examining Plaintiff’s Fourth

Amendment claim. We address his arguments in turn after concluding we have

jurisdiction over Plaintiff’s appeal.2

                                                 II.

       The Prison Litigation Reform Act requires a court to review at the onset “a

complaint in a civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

The district court should dismiss the complaint if it is frivolous, malicious, or fails

to state a claim upon which relief may be granted. § 1915A(b). In this circuit, our

standard of review on appeal depends on whether the § 1915A dismissal was

based on frivolousness or on failure to state a claim. We review a dismissal for

failure to state a claim de novo. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.

2006). But we review a dismissal based on frivolousness for abuse of discretion.

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011). The district court was



       2
          We have jurisdiction over “final decisions” of the district courts. 28 U.S.C. § 1291.
And a dismissal without prejudice is appealable if “it is clear that the order was nevertheless
‘final.’” Samco Global Arms, Inc. v. Arita, 395 F.3d 1212, 1213 n.2 (11th Cir. 2005). In this
case, even though the district court dismissed the complaint without prejudice, the court
effectively prevented Plaintiff from amending the complaint or refiling by directing the clerk to
close the case. The clerk then filed an order dismissing the case without prejudice. Despite the
district court’s confused terminology in its dismissal order, we easily conclude the order was
“final.” Moreover, the court directed the clerk to dismiss the entire case, not just the complaint.
Accordingly, we have appellate jurisdiction.

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not entirely clear on what basis it dismissed Plaintiff’s claims. On the one hand,

the district court said Plaintiff could not “satisfy the requirements of a First

Amendment claim” and had not “alleged an injury . . . to establish an access to

courts claim.” But the court also said “The Court is convinced upon review of the

Complaint, that it is frivolous as it appears that the Plaintiff has little or no chance

of success on a claim of constitutional deprivation.” Because the district court

appeared to dismiss the case based on frivolousness, we review for abuse of

discretion. Under either standard of review, however, the result remains the same.

      Although our standard of review for a dismissal based on frivolousness is

more deferential, the legal standard that the district court must apply is more

demanding. A claim is frivolous only if it “lacks an arguable basis in either law or

in fact.” Bingham, 654 F.3d at 1175. Accordingly, we have found an abuse of

discretion when a district court dismissed a pro se complaint that had “at least a

plausible chance of success.” Miller v. Donald, 541 F.3d 1091, 1101 (11th Cir.

2008).

                                           A.




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       Plaintiff first contends the district court overlooked his First Amendment

Free Speech claim.4 As mentioned above, the district court concluded Plaintiff’s

claim was frivolous. The district court called the opening of Plaintiff’s legal mail

outside his presence “minor and short-lived impediments, without any indication

of ultimate prejudice or disadvantage.” But Plaintiff is correct that the district

court overlooked important precedent in reaching its conclusion.

       A state may not abridge the freedom of speech. U.S. Const. amend. I, XIV.

We have held that mail is a medium of free speech, “and the right to send and

receive mail exists under the First Amendment.” Al-Amin v. Smith, 511 F.3d

1317, 1333 (11th Cir. 2008). We have further held that a prisoner retains “First

Amendment rights that are not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system.” Id. One of those

rights is the “use of the mail to communicate confidentially with attorneys about

his case[].” Id. Indeed, we have said “prisoners’ use of the mail to communicate

with their attorneys about their criminal cases may frequently be a more important

free speech right than the use of their tongues.” Id. at 1333–34.




       4
          At the time of the alleged violations, Plaintiff was a pretrial detainee. Pretrial
detainees “retain at least those constitutional rights that [the Supreme Court has] held are enjoyed
by convicted prisoners.” Bell v. Wolfish, 441 U.S. 520, 545 (1979).

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      In Al-Amin we found a constitutional violation where prison officials

engaged in a pattern and practice of opening, but not reading, a plaintiff’s clearly

marked attorney mail outside his presence. This practice “sufficiently chills,

inhibits, or interferes with [a plaintiff’s] ability to speak, protest, and complain

openly to his attorney so as to infringe his right to free speech.” Id. at 1334. In

this case, Plaintiff had only two letters opened after he complained to prison

officials. These two incidents, coupled with Defendant Coleman’s threats to

withhold Defendant’s mail entirely, are enough to state a First Amendment Free

Speech claim. Because Plaintiff’s complaint alleged prison officials opened and

read his legal mail outside his presence, the facts as alleged were certainly not

frivolous. Accordingly, the district court clearly abused its discretion in

concluding Plaintiff’s complaint did not support a First Amendment Free Speech

claim, and we reverse.

                                           B.

      Plaintiff next argues the district court misconceived his Sixth Amendment

right to counsel claim. The district court treated the complaint as having raised an

access to courts claim based on Plaintiff’s lack of access to the law library. The

court concluded Plaintiff did not need law library access because he had a public




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defender and had not shown any injury resulting from the denial of library access.5

Plaintiff, rather, asserts he raised a right to counsel claim pursuant to the Sixth

Amendment.

       The Sixth Amendment provides that in “all criminal prosecutions, the

accused shall enjoy the right . . . to have the assistance of counsel for his defense.”

U.S. Const. amend VI. Specifically, Plaintiff argues his claim was that searching

his legal mail interfered with his right to counsel under the Sixth Amendment.

Plaintiff filed a supplemental record on appeal in which he alleges that his public

defender stopped sending him legal records once the attorney learned the jail was

opening Plaintiff’s mail. But § 1915A allows a court to examine only the

complaint to determine whether a plaintiff has stated a claim. See 28 U.S.C.

§ 1915A(a) (providing the court shall review a complaint as soon as practicable

after docketing). Rather than address this claim in the first instance, we remand to

the district court to determine whether the facts alleged in the complaint support a

Sixth Amendment right to counsel claim.

                                                 C.




       5
         The district court reached the correct result for this claim. Lewis v. Casey, 518 U.S.
343, 351 (1996). But Plaintiff did not appeal the district court’s determination that he failed to
make out an access to courts claim.

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      Plaintiff’s next argument again references the First Amendment. He asserts

he stated a claim for retaliation pursuant to the First Amendment, but that the

district court overlooked his claim. Although, as mentioned above, Plaintiff did

not reference the First Amendment in his complaint, a district court must liberally

construe a pro se complaint. Thus, where the facts to state a claim are clearly

present in a pro se complaint, even if the cause of action is mislabeled, a pro se

plaintiff has indeed stated a claim. See United States v. Hung Thien Ly, 646 F.3d

1307, 1316 (11th Cir. 2011).

      “The First Amendment forbids prison officials from retaliating against

prisoners for exercising the right of free speech.” Farrow v. West, 320 F.3d 1235,

1248 (11th Cir. 2003). “[T]hat an inmate is considered to be exercising his First

Amendment right of freedom of speech when he complains to the prison’s

administrators about the conditions of his confinement” is “an established

principle of constitutional law.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.

2008). To prevail on a First Amendment retaliation claim, a detainee must

establish that “(1) his speech was constitutionally protected; (2) the inmate

suffered adverse action such that the administrator’s allegedly retaliatory conduct

would likely deter a person of ordinary firmness from engaging in such speech;




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and (3) there is a causal relationship between the retaliatory action and the

protected speech.” Id. at 1276.

      In this case, Plaintiff alleged in his complaint that he wrote a grievance

about his legal mail and Defendant Coleman told him if he did not stop

complaining about the opening of his legal mail, “[Coleman] would stop

[Plaintiff’s] legal mail and give it to [him] at his convenience.” As a result,

Plaintiff states he “left the issue alone” because he needed his legal mail. The

district court did not address this claim in its order. Although we conclude

Plaintiff’s retaliation claim is not a frivolous argument, we again conclude the

district court should consider whether Plaintiff stated a claim in the first instance.

Accordingly, we remand Plaintiff’s First Amendment retaliation claim.

                                           D.

      In his complaint, Plaintiff raised the Fourth Amendment, which protects

“persons, houses, papers, and effects.” U.S. Const. amend. IV. Although mail

falls within the meaning of “papers” or “effects,” the Supreme Court has

concluded that “the Fourth Amendment proscription against unreasonable searches

does not apply within the confines of the prison cell.” Hudson v. Palmer, 468 U.S.

517, 526 (1984). We have not considered the Fourth Amendment’s application to

incoming prison mail. And we need not decide that issue here as Plaintiff argues

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only that the district court should have granted him leave to amend his complaint

to state a claim under the “Cohen exception.”

      The Cohen exception is not a creation of this circuit. Rather, the Second

Circuit in United States v. Cohen, 796 F.2d 20 (2d Cir. 1986), held that papers

seized from a detainee’s cell should be suppressed. The Second Circuit ordinarily

allows prison mail searches based on good cause. United States v. Felipe, 148

F.3d 101, 108 (2d Cir. 1998). But in Cohen, the court concluded the Fourth

Amendment’s protections applied because the search was not for a security

purpose, but instead was at the request of an Assistant United States Attorney who

wanted additional information for the detainee’s prosecution. Cohen, 796 F.2d at

21. The court said the search was not motivated by institutional security concerns,

but by the prosecutor’s desire “to obtain information for a superseding

indictment.” Id. at 23–24.

      Despite no other circuit adopting Cohen’s rule, Plaintiff argues we should

both adopt the Cohen rule and reverse the district court for failing to sua sponte

grant Plaintiff an opportunity to amend his complaint and add a Cohen claim. No

facts in Plaintiff’s complaint suggested the prosecutor was responsible for the

opening of Plaintiff’s legal mail. At this time, we express no opinion as to the

validity of the Cohen exception in this Circuit or the applicability of the exception

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to Plaintiff’s case. Once the case has been remanded and reopened, Plaintiff may

file a motion for leave to amend his complaint. The district court has discretion to

review that motion pursuant to the Federal Rules of Civil Procedure.

      REVERSED AND REMANDED.




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