Chipman v. Whelan
Filing
35
OPINION AND ORDER denying 28 Motion to dismiss in its entirety; defendant shall file an answer within 21 days; denying as premature 31 Motion for summary judgment to the extent included in Response; denying as moot 32 Motion to stay. Signed by Judge John E. Steele on 9/21/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRIAN MICHAEL CHIPMAN,
Plaintiff,
vs.
Case No.
2:10-cv-321-FtM-29DNF
D. WHELAN, Sergeant I.D. #WD13,
Defendant.
________________________________
OPINION AND ORDER
This matter comes before the Court upon review of Defendant
Whelan's Motion to Dismiss (Doc. #28, Motion) with attached exhibit
(Doc. #28-1).
Plaintiff filed a response in opposition to the
Motion (Doc. #31, Response) with attached exhibits (Doc. #31-1).1
This matter is ripe for review.
I. Factual Background
Brian Michael Chipman, who is in the custody of the Florida
Department of Corrections, initiated this action by filing a pro se
Civil Rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. #1,
Complaint). The Complaint attaches 24 pages of exhibits (Doc. #1-1
through #1-9).
1
According to the Complaint, Defendant Whelan
Defendant Whelan points out that Plaintiff asks that summary
judgment be entered in Plaintiff's favor in his Response and seeks
a stay of the action, including responding to Plaintiff's motion
for summary judgment, until such time as the Court rules on
Defendant's Motion. See Doc. #32. In light of the Court's ruling
on Defendant's Motion, as set forth herein, the Court finds
Defendant's Motion to Stay is moot, as Plaintiff's motion for
summary judgment is premature at this time.
violated Plaintiff’s Eighth Amendment rights on December 9, 2009.
See generally Complaint.
Plaintiff alleges that Defendant Whelan
“grabbed [Plaintiff] in a violent way around his right arm leaving
abrasions and pushed [Plaintiff] into the wall and stomped on
[Plaintiff's] right foot also causing abrasions" because Plaintiff
allegedly disobeyed Whelan's order.
Id. at 8.
Plaintiff states
that he was issued a disciplinary report for disobeying staff, was
found guilty of the charge by correctional officials, and has filed
a writ of mandamus with the State circuit court challenging the
finding.
Id. at 10.
As relief, Plaintiff seeks, inter alia,
monetary damages for mental and physical pain and suffering.
Id.
at 11-12.
Defendant moves to dismiss this action on three grounds.
First Defendant
12(b)(1)
on
the
seeks
dismissal pursuant
basis
that
the
court
to
Fed. R.
lacks
subject
Civ.
P.
matter
jurisdiction because Plaintiff’s claims are barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and Edwards v. Balisok, 520 U.S. 641
(1997). Motion at 6. Defendant points out that Plaintiff received
a disciplinary report in connection with the incident at issue in
the Complaint, for which he lost gain time, and the disciplinary
conviction remains valid, despite Plaintiff's pending writ of
mandamus filed in the State court challenging the disciplinary
report.
See Motion 9.
Defendant submits that a finding in
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Plaintiff’s favor would necessarily imply the invalidity of his
disciplinary conviction.
Id. at 8.
Second, Defendant seeks dismissal due to Plaintiff's failure
to disclose prior cases.
Motion at 10.
Defendant argues that
Plaintiff's failure to disclose the fact that he had filed a
petition for writ of mandamus with the State court concerning the
subject disciplinary incident on both the prisoner civil rights
complaint form and in response to the Court's Order to comply with
Local Rule 1.04(d) constitutes an abuse of the judicial
which warrants dismissal as an appropriate sanction.
process,
Id.
Finally, Defendant argues that Plaintiff's Complaint fails to
articulate a First Amendment retaliation claim.
Id. at 12.
For
the reasons set forth herein, the Court finds that Defendant's
Motion is due to be denied in its entirety.
II.
Applicable Law
A motion to dismiss pursuant to Rule 12(b)(1) provides for a
dismissal
of
jurisdiction.
an
action
if
the
court
lacks
subject
matter
When reviewing a motion to dismiss for lack of
subject matter jurisdiction, the allegations of the complaint
should be construed in a light most favorable to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Cole v. United States,
755 F.2d 873, 878 (11th Cir. 1985).
jurisdiction come in two forms.
Attacks on subject matter
Carmichael v. Kellogg, Brown &
Root Servs., Inc., 572 F.2d 1271, 1279 (11th Cir. 2009); Lawrence
-3-
v. Dunbar, 919 F.2d 1525, 1528 (11th Cir. 1990).
The first is a
facial attack on the complaint, which requires the court to see
whether plaintiff has sufficiently alleged a basis of subject
matter jurisdiction.
facial validity,
the
Lawrence, 919 F.2d at 1529.
court
must
take
the
complaint as true for purposes of the motion.
In considering
allegations
Id.
in
the
In contrast, as
in the instant case, a factual attack challenges the existence of
subject matter jurisdiction, or the court’s power to hear the case.
Id.
The court can look outside the pleadings in order to make its
determination, and the court is free to weight the evidence in
order
to
determine
whether
it
has
jurisdiction.
Id.;
see
also Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir. 2008)(stating
“[w]here exhaustion--like
process--is
treated
as
jurisdiction,
a
matter
in
venue,
and
abatement
service
and
not
of
an
adjudication on the merits, it is proper for a judge to consider
facts outside of the pleadings and to resolve factual disputes so
long as the factual disputes do not decide the merits and the
parties have sufficient opportunity to develop the record.”).
Section 1915 provides that a court shall dismiss at any time
a complaint filed in forma pauperis if it is frivolous, malicious,
fails to state a claim, or seeks monetary relief from a defendant
who is immune from a claim.
28 U.S.C. § 1915(e)(2)(B).
This
section affords the court with the power to impose sanctions for
abuse of the judicial process.
Williams v. Brown, 347 F. App'x
-4-
429, 433 (11th Cir. 2009).
The Eleventh Circuit recognizes that
dismissal of a complaint for plaintiff's perjury on the complaint
form in response to the question of the existence of prior lawsuits
filed is an appropriate sanction.
See Rivera v. Allin, 144 F.3d
719, 731 (11th Cir. 1998), abrogated on other grounds Jones v.
Bock, 127 S. Ct. 910 (2007).
The Court nonetheless will liberally construe Plaintiff’s pro
se pleadings and hold the pleadings to a less stringent standard
than pleadings drafted by an attorney.
Hughes v. Lott, 350 F.3d
1157, 1160 (11th Cir. 2003) (citing Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998)).
III.
Analysis
that
the
A. Heck Bar
Defendant
submits
Court
lacks
subject
matter
jurisdiction because Plaintiff’s claims are barred by Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994).
Motion at 6.
In Response,
Plaintiff maintains that his claim is not barred by Heck. Response
at 6.
In Heck, the United States Supreme Court held:
[I]n order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such
determination, or called into question by a federal
court's issuance of a writ of habeas corpus, 28 U.S.C.
§ 2254. A claim for damages bearing that relationship to
-5-
a conviction or sentence that has not been so invalidated
is not cognizable under § 1983.
Thus, when a state
prisoner seeks damages in a § 1983 suit, the district
court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence; if it would, the complaint must
be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.
Heck, 512 U.S. at 486-87 (emphasis added)(internal citation and
footnote omitted). The United States Supreme Court has applied the
Heck analysis to actions brought by prisoners who are challenging
disciplinary proceedings in jails.
See Edwards v. Balisok, 520
U.S. 641, 643-649 (1997); Roberts v. Wilson, 259 F. App’x 226, 228,
2007 WL 4336446 (11th Cir. Dec. 13, 2007).
In Balisok, the plaintiff initiated a § 1983 action alleging
defendants violated his due process rights during a disciplinary
hearing, which resulted in the plaintiff’s loss of good-time
credits.
action
Id. at 643.
was
not
The Balisok Court concluded that a § 1983
cognizable,
even
though
the
plaintiff
was
challenging the procedure and not the result, because a finding in
favor of the plaintiff would “necessarily imply the invalidity of
the punishment imposed.”
Id. at 648.
The Court held that a
prisoner could not pursue such an action unless the prisoner had
successfully invalidated the disciplinary report.
Id. at 646-68;
see also Wilkinson v. Dotson, 544 U.S. 74 (2005)(finding a state
prisoner’s § 1983 action is barred--absent prior invalidation--no
matter the relief sought--damages or equitable relief--no matter
the
target
of
the
prisoner’s
suit--state
-6-
action
leading
to
conviction or internal prison proceedings--if success in that
action would necessarily invalidate prisoner’s confinement).
However, the Court has rejected the view that Heck applies to
all suits challenging prisoner disciplinary proceedings.
See
Muhammad v. Close, 540 U.S. 749, 754-55 (2004); Dyer v. Lee, 488
F.3d 876, 879 (11th Cir. 2007); see also Beecher v. Jones, Case No.
3:08-cv-416, 2010 WL 5058555 (N.D. Fla. Oct. 29, 2010)(finding the
plaintiff did not “steer his case” into Heck territory because
according to the complaint “[p]laintiff could have committed all of
the acts set forth in the DR and hearing team decision, yet the
manner in which the chemical agent was applied, the duration of its
application, etc., could still constitute the use of excessive
force.”).
In Muhammad, the Court declined to extend Heck to a
prisoner’s § 1983 action claiming a constitutional violation based
on
his
pre-hearing
plaintiff’s
action
confinement.
did
not
The
challenge
Court
the
held
that
conviction,
this
the
disciplinary action, nor did he seek expungement of the misconduct
finding, so it was not “construed as seeking a judgment at odds
with his conviction.”
Id. at 754-55.
In the instant case, the Court finds that Plaintiff has not
steered his case into Heck territory.
whether
a
claim
allegations.
is
barred
by
Heck
The Court’s determination
turns
on
the
Plaintiff’s
The Charging Disciplinary Report, dated December 28,
2009 (Log #575-090800), states as follows:
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On 12/09/09 I Sergeant Whelan was assigned to GDormitory. At approximately 10:55 a.m. Inmate Chipman,
Brian DC #R16382 asked me if he could go to
classification. I told Inmate Chipman that he would not
be able to go at this time the yard is closed. At 11
a.m. I opened the wing 1 door to let inmates into the
dorm at this time. Inmate Chipman looked towards the GDormitory control room then he ran out of the wing 1
door. I'm charging inmate Chipman with 6-I disobeying
verbal order.
Doc.
#1-5.
Similarly,
the
February
10,
2010
response,
to
Plaintiff's formal grievance, explains in pertinent part:
The
not
you
the
disciplinary report was written due to [Plaintiff]
following the last order given []. Sgt. Whelan gave
an order to not leave the dorm and you chose to leave
dorm when he opened the door for inmates to come in.
Dpc. #1-7.
Plaintiff’s claims in the instant Complaint are based on the
assertion that he was subjected to excessive use of force by
Defendant Whelan after he allegedly disobeyed Whelan's order and
attempted to leave the dormitory.
Plaintiff is not disputing the
disciplinary charge or seeking restoration of lost gain time in his
Complaint.
Instead, Plaintiff is challenging the manner in which
Defendant Whelan applied force upon him when he returned back to
Whelan after trying to leave the dormitory.
Thus, Plaintiff’s basis for this action is not intertwined
with the facts upon which the disciplinary conviction is based.
A
judgment in favor of Plaintiff, finding that Defendant Whelan used
excessive force on Plaintiff without provocation in violation of
the Eighth Amendment, would not necessarily imply the invalidity of
-8-
the disciplinary charge of disobeying an order.
See Richards v.
Dickens, 411 F. App’x 276, 278, 2011 WL 285212 (11th Cir. Jan. 31,
2011).
Thus, the Court finds Plaintiff’s claim is not barred by
Heck.
B. Dismissal as Sanction
In the alternative, Defendant seeks dismissal of Plaintiff's
Complaint as a sanction for Plaintiff's dishonest and malicious
conduct. Motion at 10. In response, Plaintiff explains he did not
identify the State petition for writ of habeas corpus on his
Complaint form or in response to the Court's Order to identify any
related cases because he did not consider the petition against the
Secretary of the Florida Department of Corrections to concern the
conditions of his confinement or his petition seeking restoration
of his gain time to be related to his § 1983 claim for Whelan's use
of excessive force.
Response 7-8.
the State petition to his Motion.
Defendant attaches a copy of
Doc. #28-1.
The Court finds the pro se Plaintiff did advise the Court that
he filed the State petition.
Indeed, Plaintiff stated in the body
of his Complaint that he filed the State petition and even attached
a copy of the petition to his Complaint.
1.
Complaint at 10; Doc. #1-
Thus, Plaintiff's technical failure to include this case under
section IV, subsection A and C of the civil rights complaint form,
or in response to the Court's May 21, 2010 Order was unintentional
and certainly not misleading.
Under no circumstances does the
-9-
Court find that Plaintiff’s actions rise to the type of “evidence
of bad faith” or “maliciousness” to warrant dismissing this action
as an appropriate sanction.
Williams v. Brown, 347 F. App'x 429,
433 (11th Cir. 2009).
Retaliation
Defendant
retaliation
seeks dismissal
claim
on
the
of Plaintiff's
basis
that
adequately state a claim for relief.
the
First
Complaint
Motion at 12.
Amendment
fails
to
Upon review of
the Complaint, even liberally construed, the Court does not read
Plaintiff's Complaint as alleging a claim of retaliation stemming
from Plaintiff's transfer as a separate cause of action. See
Complaint at 8 (stating that Plaintiff raises only an Eighth
Amendment claim).
Indeed, Plaintiff in his Response acknowledges
that he "planned to file a separate complaint" concerning his
transfer and his claim of retaliation.
Response at 3.
ACCORDINGLY, it is hereby
ORDERED:
Defendant’s Motion to Dismiss (Doc. #28) is DENIED in its
1.
entirety.
Defendant shall file an answer to the Complaint within
2.
twenty-one (21) days of the date of this Order.
3.
included
Plaintiff's Motion for Summary Judgment, to the extent
in
Plaintiff's
Response
premature.
-10-
(Doc.
#31),
is
DENIED
as
4.
Defendant's Motion to Stay Proceedings (Doc. #32) is
DENIED as moot.
DONE AND ORDERED at Fort Myers, Florida, on this
of September, 2011.
SA: hmk
Copies: All Parties of Record
-11-
21st
day
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