              Case: 12-14314     Date Filed: 12/19/2013   Page: 1 of 10


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-14314
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 5:11-cv-00109-LGW-JEG



JESUS ROBLES,

                                                                 Plaintiff-Appellant,

                                       versus

DIRECTOR THOMAS R. KANE,
Federal Bureau of Prisons; in his official capacity,

                                                                          Defendant,

WARDEN,
The GEO Group, D. Ray James Correctional
Facility; in his official capacity,
PHILIP CHILDS,
TAMERA CREWS,
MS. FUENTES,

                                                              Defendants-Appellees.
               Case: 12-14314       Date Filed: 12/19/2013      Page: 2 of 10


                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                            ________________________

                                   (December 19, 2013)

Before CARNES, Chief Judge, PRYOR and MARCUS, Circuit Judges.

PER CURIAM:

       Jesus Robles, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his Bivens suit.1

                                               I.

       This case arises from a dispute over legal mail sent to Robles while he was

serving his federal prison sentence at the D. Ray James Correctional Facility (the

Facility) in Folkston, Georgia.2 In December 2009 Robles was tried and convicted

in the United States District Court for the District of Kansas of conspiracy to

possess, and possession of, marijuana with the intent to distribute. See United

States v. Robles, 434 F. App’x 736, 736–39 (10th Cir. 2011). Robles was

sentenced to 64 months imprisonment and transferred to the Facility, which is a

privately owned prison that operates under a contract with the Bureau of Prisons

(BOP). Its employees work for The GEO Group, Inc., not the federal government.

   1
     See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999 (1971).
   2
      Because the district court granted the defendants’ motion to dismiss, we take the facts as
alleged in Robles’ complaint. See Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d
1282, 1291 (11th Cir. 2007).


                                               2
               Case: 12-14314       Date Filed: 12/19/2013      Page: 3 of 10


       In May 2010 Robles appealed his convictions to the Tenth Circuit. While

his appeal was pending, officials at the Facility interfered with his receipt of five

pieces of legal mail. In 2011 the Facility received legal mail addressed to Robles

that was postmarked January 25, January 28, February 2, February 28, and March

8. Yet Robles did not promptly receive that mail once the prison’s mailroom

processed it. After he made “many inquiries” and “mention[ed] an investigation

by Federal authorities,” he received three of those pieces of mail on March 24,

2011, and a fourth piece on March 25, 2011. He never received the transcripts that

were included with the January 28 letter, 3 and the February 28 letter had been

opened outside his presence. The exhibits Robles attached to his complaint show

that the January 28 letter included transcripts of his trial and sentencing, and the

February 28 letter contained those same transcripts along with copies of the

previous letters he had not received.4 The Facility officials running the mailroom

did not tell Robles why his mail had been delayed or where it had been.

       While Robles was attempting to secure his mail, his direct appeal was

pending in the Tenth Circuit. The docket for that appeal shows that the transcripts

of Robles’ trial and sentencing hearing were available electronically on the Tenth


   3
      Robles’ exhibits include a letter from his attorney dated January 28, on which Robles has
written “missing.” The letter says that the attorney had enclosed copies of his trial and
sentencing transcripts. We thus infer that what is “missing” is the records that were included
with the letter.
    4
      The exhibits do not reveal the contents of the other three letters.


                                              3
              Case: 12-14314     Date Filed: 12/19/2013    Page: 4 of 10


Circuit’s case management system on November 24, 2010. See United States v.

Robles, No. 10-3119 (10th Cir. Nov. 24, 2010) (filing record on appeal). The

public defender representing Robles on appeal moved for and received several

extensions on the deadline to file a merits brief — until the Tenth Circuit set a final

deadline of March 4, 2013. The motions indicate that his attorney asked for the

extensions based on the length of the record and the demands of her caseload, not

because of any difficulty communicating with Robles. See, e.g., Robles, No. 10-

3119 (10th Cir. Jan. 25, 2011) (moving for an extension of time to file the

appellant’s opening brief). Robles’ attorney met the deadline, filing a 52-page

brief on March 4 that challenged his convictions based on the trial court’s

admission of evidence of his past drug dealing under Federal Rule of Evidence

404(b). The Tenth Circuit was not persuaded and affirmed Robles’ conviction in

August 2011. See Robles, 434 Fed. App’x at 741.

      Three other incidents with Robles’ legal mail occurred after his criminal

appeal concluded. In December 2011, officials opened a letter outside of Robles’

presence that was marked “LEGAL MAIL-OPEN IN THE PRESENCE OF THE

PRISONER” and addressed from “David C. Faith ATTORNEY AT LAW.” In

January 2012, Robles received a piece of legal mail without any “markings” on the

envelope to indicate when the letter arrived at the Facility. And in February 2012,




                                           4
              Case: 12-14314     Date Filed: 12/19/2013   Page: 5 of 10


a piece of Robles’ legal mail was delivered to another inmate who opened it

outside Robles’ presence.

      Robles filed this civil suit in November 2011. His amended complaint

asserted that the interference with his mail violated his First Amendment right to

communicate privately with his attorney and his constitutional right of access to

the courts. He also claimed that the defendants violated his First Amendment right

to petition the government for redress of grievances by “fail[ing] to address his

allegations of legal mail interference and depriv[ing] him of a remedy.” He named

as defendants the BOP; the BOP’s then acting director, Thomas Kane; The GEO

Group; the warden; and several other Facility officials. The district court

dismissed the complaint against the BOP and Kane because Bivens claims cannot

be brought against agencies and Robles failed to allege that Kane had actual

knowledge of the actions at issue in the suit. The remaining defendants moved to

dismiss the complaint, and a magistrate judge issued a report and recommendation

concluding that the court should dismiss Robles’ complaint because he had

adequate state law remedies for pursuing his claims. The district court adopted

that recommendation over Robles’ objections and dismissed his complaint.

                                          II.

      We review de novo the district court’s decision to dismiss a complaint for

failure to state a claim, accepting the complaints allegations as true. Miller v. U.S.



                                          5
              Case: 12-14314     Date Filed: 12/19/2013     Page: 6 of 10


Dep’t of Agr. Farm Servs. Agency, 143 F.3d 1413, 1414–15 (11th Cir. 1998).

Because Robles is a prisoner proceeding pro se, we liberally construe his

pleadings. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). His

complaint makes three claims based on three different rights. None states a

plausible claim for relief.

      First, Robles contends that the defendants violated his right of access to the

courts. To state a claim for relief, Robles had to allege, among other things, that

the interference with his legal mail caused him “actual injury.” Al-Amin v. Smith,

511 F.3d 1317, 1332 (11th Cir. 2008). Actual injury here means a tangible

disadvantage to Robles in his criminal appeal, such as a missed filing deadline or a

foregone claim. See id. at 1332–33. Neither Robles’ complaint nor his briefs

identify any such disadvantage. The record shows that his attorney had months to

prepare his appeal and filed a 52-page brief arguing for the reversal of his

convictions. Robles never explains what arguments would have been added to that

brief if he had received the five pieces of legal mail on time. Thus he fails to state

a claim for relief based on his right of access to the courts.

      Second, Robles asserts that the defendants violated his First Amendment

right to petition the government for redress of grievances. To state a claim for

relief, Robles had to allege that prison officials interfered with his freedom to




                                           6
                Case: 12-14314        Date Filed: 12/19/2013       Page: 7 of 10


invoke the judicial process.5 The right to petition is a procedural guarantee that a

prisoner will have the opportunity to present his claims in court, not a substantive

guarantee that the prison will take remedial action based on those claims. See

Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011) (“[T]he 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. . . .”) (quotation

marks omitted). But Robles’ allegation is substantive. He accuses the defendants

of “fail[ing] to address his allegations of legal mail interference and depriv[ing]

him of a remedy.” Furthermore, the fact that Robles’ complaints are now before

this Court is proof that the Facility did not interfere with his freedom to invoke the

judicial process. See Antonelli v. Sheahan, 81 F.3d 1422, 1430–31 (7th Cir. 1996).

Robles has therefore failed to state a claim for relief based on his right to petition

the government for redress of grievances.

       Finally, Robles argues that the defendants violated his First Amendment

right to confidential communication with his attorney. Because the Facility is a

privately run prison, Robles cannot have a viable claim for relief unless we

recognize a Bivens cause of action against it. See Corr. Servs. Corp. v. Malesko,

534 U.S. 61, 66–67, 122 S.Ct. 515, 519 (2001); Alba v. Montford, 517 F.3d 1249,


   5
      We have also held that the right to petition for redress of grievances protects prisoners from
retaliation for filing administrative grievances. See, e.g., Boxer X, 437 F.3d at 1112. That
aspect of the right is not at issue here.


                                                 7
              Case: 12-14314    Date Filed: 12/19/2013   Page: 8 of 10


1252–56 (11th Cir. 2008). We may do so only if: (1) there are no adequate

alternative remedies under state or federal law, and (2) no “special factors” counsel

against implying a cause of action here. See Wilkie v. Robbins, 551 U.S. 537, 550,

127 S.Ct. 2588, 2598 (2007). Robles’ claim flounders on the first criterion. State

law tort actions provide an adequate alternative remedy if they “provide roughly

similar incentives for potential defendants to comply with” the constitutional right

in question “while also providing roughly similar compensation to victims of

violations.” Minneci v. Pollard, — U.S. —, 132 S.Ct. 617, 625 (2012). Georgia

tort law provides both.

      We base our conclusion largely on the fact that Robles’ constitutional claim

would, if successful, entitle him only to nominal damages. Prisoners like Robles

— who claim interference with their legal mail but no actual injury — can receive

only nominal damages. See Al-Amin, 511 F.3d at 1334–35; see also Al-Amin v.

Smith, 637 F.3d 1192, 1196–98 (11th Cir. 2011) (explaining that, under the Prison

Litigation Reform Act, prisoners cannot receive compensatory or punitive damages

in the absence of a physical injury. That sets a very low bar for Georgia tort law to

provide “roughly similar incentives” and “roughly similar compensation.”

Minneci, — U.S. —, 132 S.Ct. at 625.

      Georgia law clears that bar by providing several causes of action for

prisoners like Robles. See id. at — U.S. —, 132 S.Ct. at 624 (explaining that the



                                          8
              Case: 12-14314     Date Filed: 12/19/2013   Page: 9 of 10


adequate alternative remedies criterion asks whether the defendant’s actions are

“the kind of conduct that state tort law typically forbids”). Robles’ complaint

focuses on two actions by the defendants: opening his private legal mail outside

his presence and withholding his legal mail. As for the opening of private mail,

Robles can sue under Georgia common law for intrusion upon seclusion or

solitude. See Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d 835, 837 (Ga. 1991)

(“The ‘unreasonable intrusion’ aspect of the invasion of privacy involves a prying

or intrusion, which would be offensive or objectionable to a reasonable person,

into a person’s private concerns.”); cf. Thomas v. Pearl, 998 F.2d 447, 452 (7th

Cir. 1993) (recognizing that opening an individual’s mail would qualify as an

intrusion upon seclusion). As for the withholding of mail, Robles can sue under

Georgia’s statutory tort for deprivation of possession. See Ga. Code Ann. § 51-10-

1 (“The owner of personalty is entitled to its possession. Any deprivation of such

possession is a tort for which an action lies.”); see also Byrd v. Stewart, 811 F.2d

554, 555 n.1 (11th Cir. 1987) (recognizing § 51-10-1 as an adequate remedy where

state police officers have seized a defendant’s personal property).

      Both Georgia law torts are arguably better remedies than a Bivens claim

would be because they would allow Robles to seek compensatory and punitive

damages, as well as “apply principles of respondeat superior and thereby obtain

recovery from a defendant’s potentially deep-pocketed employer.” Minneci, —



                                          9
              Case: 12-14314      Date Filed: 12/19/2013   Page: 10 of 10


U.S. —, 132 S.Ct. at 625. At the least, the two Georgia law torts provide roughly

similar incentives and compensation to a Bivens claim. For that reason, we decline

to recognize a Bivens cause of action under these circumstances. Robles has

therefore failed to state a claim for relief.

       AFFIRMED.




                                            10
