Smith v. State of Florida Parole and Probation Commission et al
Filing
23
OPINION AND ORDER. The Motion to Dismiss 20 filed on behalf of Defendants Florida Parole Commission, and parole examiners Pamela Carwise and Hal William Lest is GRANTED in part and DENIED in part. The Motion to Dismiss is GRANTED with respect to Plaintiff's claims for monetary damages against the Florida Parole Commission and Defendants Carwise and Lest in their official and individual capacities. In all other respects, the Motion is DENIED. Defendants shall file an answer to Plaintiff's Complaint within TWENTY-ONE DAYS from the date of this Order. Signed by Judge Charlene E. Honeywell on 12/16/2011. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEITH N. SMITH,
Plaintiff,
vs.
Case No.
2:10-cv-668-FtM-36DNF
STATE
OF
FLORIDA
PAROLE
AND
PROBATION
COMMISSION;
PAMELA
CARWISE; HAL WILLIAM LEST,
Defendants.
________________________________
OPINION AND ORDER
This matter comes before the Court upon review of the Motion
to Dismiss (Doc. #20, Motion) filed on behalf of Defendants State
of Florida Parole and Probation Commission, Parole Examiners Pamela
Carwise and Hal William Lest on May 20, 2011.
Plaintiff filed a
Response (Doc. #22, Response) and attached exhibits (Doc. #22-1,
Pl’s Exhs. A-C) consisting of a copy of the envelope that was used
to mail the Defendants’ Motion, an affidavit from himself, and an
affidavit
Barker.1
from
Florida
Civil
Commitment
Center
resident
Tom
This matter is ripe for review.
I. Status
Keith N. Smith, a pro se plaintiff who is civilly committed at
the Florida Civil Commitment Center (“FCCC”), initiated this action
1
Plaintiff’s response does not address the issues raised in the
Defendants’ Motion. Instead, Plaintiff’s response raises issue
with the date he received a copy of the Defendants’ Motion, despite
the Defendants’ certificate of service showing the Motion was
mailed the same day it was filed.
by filing a Civil Rights Complaint pursuant to 42 U.S.C. § 1983
with attached supporting exhibits (Doc. #1-1, Pl’s Exhs.).
See
Complaint at 1-2; see generally Pl’s Exhs. Plaintiff sues the
Florida Parole and Probation Commission (hereinafter “FPC”) and two
parole
examiners,
who
Plaintiff
claims
were
involved
in
the
erroneous violation of his conditional release, in their official
and individual capacities.
Complaint at 1-4.
Plaintiff alleges
Defendants violated his Fourth and Fourteenth Amendment rights
protected under the United States Constitution, as well as “pendent
State constitutional and tort claims.”
Id. at 2.
The incident giving rise to the cause of action stems from the
FPC’s decision to violate Plaintiff’s conditions of release despite
the parole examiner’s finding that Plaintiff did not willfully
violate any conditions, which resulted in Plaintiff’s removal from
the FCCC and imprisonment with the Department of Corrections.
generally Complaint at 3; see also Pl’s Exhs.
See
According to the
Complaint, on an unspecified date the FPC mailed Plaintiff a notice
advising him that a hearing would commence on September 22, 2009,
at DeSoto County Jail, to determine whether Plaintiff violated the
following conditions:
1. Violated Condition 8(d) by failing to promptly
and truthfully answer all questions and follow all
instructions asked or given to him by his Conditional
Release Officer or the Commission, in that on July 9,
2009, Plaintiff was instructed to sign up for sex
offender treatment, and that he failed to do so as of
July 31, 2009.
-2-
2. Violated Special Condition 24 which states, “You
shall participate during your Conditional Release term,
in a sex offender treatment program, at your own expense,
until a determination is made by authorities of the
program that you are no longer in need of said treatment,
or you complete your term of supervision, whichever
occurs first,” in that he was instructed on July 9, 2009,
to sign up for sex offender treatment, and this he has
failed to do.
See Pl’s Exh. at 1.
On September 22, 2009, the FPC held Plaintiff’s hearing.
Mr.
Walker, a FCCC Clinician who Plaintiff identifies as his “treatment
therapist/case manager,” testified that Plaintiff was “signed up
for sex offender treatment” at the FCCC and was attending “phase 1"
of the program.
Complaint at 3.
At the conclusion of the
September 22, 2009 hearing, the parole examiner, Defendant Lest,
completed the FPC documentation finding that Petitioner was “not
guilty/not willful” of violating conditions 8(d) and 24. Pl’s Exh.
at 3.
Nonetheless, Plaintiff alleges that the FPC “chose to
violate [Plaintiff’s] conditional release anyway” and send him to
the Department of Corrections, specifically the Central Florida
Reception Center, for a five-day period of time.
3; Pl’s Exh. Doc. #1-1 at 4.
Complaint at 1,
As a result of the FPC’s actions,
Plaintiff was removed from his treatment group at the FCCC and upon
his return to the FCCC was forced to start at the beginning of the
sex offender treatment program.
Id. at 4.
Plaintiff seeks
$100,000 in monetary damages, punitive damages, an injunctive
-3-
order, costs and reasonable attorney’s fees, and any other relief
the Court deems proper.
Id. at 4.
Defendants move to dismiss and first claim that Plaintiff has
failed to comply with Fed. R. Civ. P. 8(a)(2) because the Complaint
is a “quintessential shot gun pleading.”
Motion at 5.
The Court
disagrees with Defendants and finds that the pro se Complaint
complies, in pertinent part, with Fed. R. Civ. P. 8.
Defendants
also move to dismiss, claiming that the FPC is not a “person” under
section 42 U.S.C. § 1983 and that the individual parole officers
are entitled to “judicial immunity.” Id. at 8-10. Defendants also
raise qualified immunity as to any claims against the officers in
their
individual
immunity.
capacities,
Id. at 7-8; 10-15.
as
well
as
Eleventh
Amendment
For the reasons herein, the Court
will grant in part and deny in part the Defendants’ Motion.
II. Motion to Dismiss Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court
limits its consideration to well-pleaded factual allegations,
documents central to or referenced in the complaint, and matters
judicially noticed.
La Grasta v. First Union Sec., Inc., 358 F.3d
840, 845 (11th Cir. 2004). Thus, the Court must accept all factual
allegations in Plaintiff’s Complaint as true and take them in the
light most favorable to the plaintiff.
F.3d 1282, 1284 (11th Cir. 2008).
Pielage v. McConnell, 516
Conclusory allegations, however,
are not entitled to a presumption of truth.
-4-
Ashcroft v. Iqbal, 556
U.S. ___, 129 S. Ct. 1937, 1951 (2009)(discussing a 12(b)(6)
dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16
(11th Cir. 2001).
The Court employs the Twombly-Iqbal plausibility standard when
reviewing a complaint subject to a motion to dismiss.
Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010).
Randall v.
A claim is
plausible where the plaintiff alleges facts that “allow[] the court
to draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ct. 1937, 1949 (2009).
plaintiff
allege
Ashcroft v. Iqbal, 556 U.S. ____, 129 S.
The plausibility standard requires that a
sufficient
facts
“to
raise
a
reasonable
expectation that discovery will reveal evidence” that supports the
plaintiff’s claim.
556 (2007);
Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
Marsh, 268 F.3d at 1036 n.16.
Specifically, “[w]hile
a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations . . . a plaintiff’s obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555 (citations
omitted). Thus, “the-defendant-unlawfully harmed me accusation” is
insufficient.
Ashcroft, 129 S. Ct. at 1949. “Nor does a complaint
suffice if it tenders naked assertions devoid of further factual
enhancement.”
Id.
-5-
A complaint must satisfy the pleading requirements of Fed. R.
Civ. P. 8 by simply giving the defendant fair notice of what the
plaintiff’s claims are and the grounds upon which they rest.
Conley v. Gibson, 355 U.S. 41 (1957).
However, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
See Twombly, 550 U.S. 544, 127 S. Ct. 1955,
1965, 1968-69 (citations omitted) (abrogating Conley, 355 U.S. 41
in part and stating that Conley did not set forth the minimum
standard
governing
a
complaint’s
survival
under
a
motion
to
dismiss, rather the case “described the breadth of opportunity to
prove what an adequate complaint claims”).
Additionally, there is
no longer a heightened pleading requirement.
701.
Randall, 610 F.3d at
Because Plaintiff is proceeding pro se, his pleadings are
held to a less stringent standard than pleadings drafted by an
attorney and will be liberally construed. 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.
Applicable Law
Title 42 U.S.C. § 1983 imposes liability on anyone who, under
color of state law, deprives a person “of any rights, privileges,
or immunities secured by the Constitution and laws.”
To state a
claim under 42 U.S.C. § 1983, Plaintiff must allege: (1) Defendants
deprived
him
of
a
right
secured
under
the
United
States
Constitution or federal law, and (2) such deprivation occurred
-6-
under color of state law.
Arrington v. Cobb County, 139 F.3d 865,
872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d
1275, 1288 (11th Cir. 2001).
and
establish
an
In addition, Plaintiff must allege
affirmative
causal
connection
between
the
defendant’s conduct and the constitutional deprivation. Marsh, 268
F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th Cir.
1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541 n.1
(11th Cir. 1994).
Plaintiff alleges a violation of his Fourth and Fourteenth
Amendment
rights
Complaint.
under
the
United
States
Constitution.
See
Liberally construing the pro se Complaint, Plaintiff
alleges a claim of false imprisonment, malicious prosecution, and
a due process claim.
Id. at 2.
The Defendants include two Florida
parole examiners in their official and individual capacities.
at 1.
Id.
Defendants do not dispute that the parole examiners were
acting under the color of state law at the time of the incident.
See Motion.
Plaintiff also names the “FPC” as a Defendant.
Id.
A. Fourteenth Amendment- Due Process Claim
As a general rule, in order to sustain a due process violation
under the Fourteenth Amendment, one must have a liberty interest
created by the United States Constitution or by a state.
Monroe v.
Thigpen, 932 F.2d 1437, 1441 (11th Cir. 1991). Interests protected
by the Due Process Clause may be created by prison regulation, see
Wolff v. McDonnell, 418 U.S. 539, 556-58 (1974), and state statutes
-7-
and regulations, Vitek v. Jones, 445 U.S. 480, 488 (1980).
See
also Slocum v. Georgia State Board of Pardons and Paroles, 678 F.2d
940 (11th Cir. 1982).
interest in parole,
The Constitution does not confer a liberty
Swarthout v. Cooke, ____ U.S. ____, 131 S. Ct.
859, 862 (Jan. 24, 2011)(citations omitted).
The Eleventh Circuit
Court of Appeals has previously found that the Florida statutes do
not create a liberty interest in parole, because the decision
whether to release an inmate on parole is a matter committed to the
discretion of the Commission without the mandate of statute, Hunter
v. Florida Parole & Probation Commission, 674 F.2d 847, 848 (11th
Cir. 1982).
Where there is no liberty interest in parole, “the procedures
followed in making the parole determinations are not required to
comport with the standards of fundamental fairness.”
Snow, 53 F.3d 319, 321 (11th Cir. 1995).
exception
to
this
rule
exists
unauthorized action” by the Board.
when
there
O’Kelley v.
However, a limited
is
“flagrant
or
Monroe, 932 F.2d at 1441.
In
Monroe, the Eleventh Circuit Court of Appeals held that a parole
board’s discretion is not unlimited, and determined that the parole
board’s
reliance
on
“unauthorized action.”
admittedly
false
information
constituted
Id. at 1442. Although an inmate has no due
process right to an error-free determination of parole eligibility,
a prison official may not engage in “arbitrary and capricious” or
“flagrant or unauthorized action,” such as knowingly or admittedly
-8-
relying on false information in making parole decisions.
932 F.2d at 1442, n. 11.
Monroe,
However, prisoners do not state a due
process claim by simply asserting that erroneous information might
have been used during their parole consideration. Slocum, 678 F.2d
940 (11th Cir. 1982).
The following minimum requirements of due process must be
provided in a parole revocation proceeding:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parolee of evidence against him;
(c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses ...; (e) a
‘neutral and detached’ hearing body such as a traditional
parole board, members of which need not be judicial
officers or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons for
revoking parole.
Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972).
error of state law is not a denial of due process.”
However “a mere
Swarthout, 131
S. Ct. at 863 (quoting Engle v. Isaac, 456 U.S. 107, 121 n. 21
(1982)).
These same limited liberties must also be afforded to a
Florida prisoner while on “conditional release.”
See Brown v.
McNeil, Case No. 3:05-cv-86-32TEM, 591 F.Supp.2d 1245, 1259-1260
(M.D. Fla. May 14, 2008)(citing cases and explaining that Florida’s
Conditional Release program is a “probation-type program.”).
“Florida courts have imputed the same due process protections
governing probation and parole revocation decisions to challenges
to conditional release supervision revocations.”
-9-
Id. at 1260
(citing Houck v. Florida Parole Comm’n, 953 So. 2d 692, 692 (Fla.
1st DCA 2007)(holding circuit court failed to observe essential
requirements
of
law
where
it
upheld
revocation
based
on
petitioner’s violation of conditional release supervision curfew
requirement without any evidence that violation was both willful
and substantial); Ellis v. Florida Parole Comm’n, 911 So. 2d 831,
832 (Fla. 1st DCA 2005)(holding circuit court failed to observe
essential requirements of law where it upheld revocation based on
petitioner’s
requirement
violation
that
he
not
of
conditional
leave
county,
release
where
supervision
hearing
officer
determined petitioner was guilty, but that his violation was not
willful).
See also Lawson, 969 So. 2d at 230 (holding that Florida
Supreme Court’s requirement that a violation underlying probation
revocation must always be found to be both willful and substantial
satisfies
probation
statute’s
requirement
that
revocation
be
supported by finding that probationer has violated a condition of
probation “in a material respect”);
Collins v. Hendrickson, 371
F.Supp.2d 1326, 1328 (M.D. Fla. 2005)(granting habeas petition
where
revocation
of
petitioner’s
control
release
supervision
violated due process when FPC failed to follow statute’s mandate
for
revocation).
Thus,
while
there
is
no
federal
right
to
conditional release supervision, “having exercised the discretion
to [place a prisoner into that program],” the State is “constrained
by substantive limitations on its authority to rescind [it].”
-10-
Brown, 591 F.Supp.2d at 1260 (citing Collins, 371 F.Supp.2d at
1348)(other citations omitted).
Florida Statute § 947.141 “places substantive limitations on
the
FPC
when
supervision.”
it
is
deciding
whether
to
revoke
a
person’s
Collins v. Henderickson, 371 F. Supp.2d 1326, 1328
(M.D. Fla. Jan. 26, 2005).
“In sum, the FPC must make its decision
based on the factual findings of its authorized representative, the
hearing examiner.”
Id.
“The FPC cannot disregard a hearing
examiner’s factual findings and substitute its own, where the
hearing examiner’s findings are supported by competent, substantial
evidence.
Id.
B.
Fourth Amendment-False
Prosecution Claims
Imprisonment
and
Malicious
Malicious prosecution can form a basis for a Fourth Amendment
claim under § 1983. DeRosa v. Rambosk, 732 F.Supp.2d 1285, 1300-01
(M.D. Fla. Aug. 11, 2010)(citing Uboh v. Reno, 141 F.3d 1000, 1002
(11th Cir. 1998)).
To state a claim for malicious prosecution, a
plaintiff must allege the following elements: (1) that an original
criminal or civil judicial proceeding against the present plaintiff
was commenced or continued; (2) the present defendant was the legal
cause of the original proceeding against the present plaintiff as
the defendant in the original proceeding; (3) the termination of
the original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (5) there was malice
on the part of the present defendant; and (6) the plaintiff
-11-
suffered damage as a result of the original proceedings.
Cohen v.
Corwin, 980 So. 2d 1153, 1155 (Fla. 4th DCA 2008); see also
Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004).
A false imprisonment claim requires the same elements listed for a
malicious prosecution claim, and also requires a Fourth Amendment
violation.
Kingsland, 382 F.3d at 1234.
IV. Application of Law to the Facts
A.
Whether the Florida Parole Commission is a “Person”
The Court first addresses Defendants’ argument that the “FPC”
is not a “person” under 42 U.S.C. § 1983.
Motion at 6.
Here,
Plaintiff names as Defendants the FPC and two parole examiners, in
their official and individual capacities.
See Complaint at 4;
Motion at 2 (recognizing suit filed in official and individual
capacities).
It is well established that a suit against a state
officer in his or her official capacity is considered to be a suit
against the State.
Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989); see
also
Dean v. Barber, 951 F.2d 1210, 1214-
1215 (11th Cir. 1992)(noting that sheriff’s departments and police
departments are not usually considered “legal entities” subject to
suit, but further noting that the capacity to sue or be sued shall
be determined by the law of the state in which the district court
is held).
Significantly, Defendants cite to no case law, or the
relevant Florida Statutes, in support of their proposition that the
FPC is not a “person” under 42 U.S.C. § 1983.
-12-
Id.
Therefore, at
this stage of the litigation, the Court will not grant Defendants’
Motion and find that the FPC is not an entity subject to suit under
§ 1983.
B.
Fourth and Fourteenth Amendment Claims
According
to
the
Complaint,
Plaintiff
was
placed
on
conditional release supervision while civilly confined at the FCCC.
See Complaint; see also Parole Commission v. Smith, 896 So. 2d 966
(Fla. 2d DCA 2005)(finding that Plaintiff, who is an FCCC resident,
can be placed on conditional release supervision while civilly
committed under Florida’s Sexually Violent Predators Act, formerly
known as the Jimmy Ryce Act).
Plaintiff avers that despite
Defendant Lest’s determination that Plaintiff did not willfully
violate the conditions of his supervision and that Plaintiff was
“not guilty,” the FPC nonetheless violated Plaintiff’s conditional
release.
Complaint at 3.
As a result, Plaintiff was transferred
from the custody of the Department of Children and Families into
the
custody
of
the
Secretary
of
the
Florida
Department
Corrections and imprisoned for a five-day period of time.
of
The
Complaint and exhibits attached thereto suggest that Plaintiff did
not have a written statement by the parole commission as to the
evidence
they
relied
on
and
their
reasons
for
finding
that
Plaintiff violated the conditions of his release. To the contrary,
the FPC’s statement shows that the parole examiner found Plaintiff
did not violate the conditions of his release.
-13-
Defendants do not
address these facts in their Motion.
See Motion.
Thus, at this
stage of the proceedings, the Court finds that the Complaint
includes sufficient facts to state a Fourth and a Fourteenth
Amendment claim.
C. Parole Board Defendants-Claim for Monetary Damages
The Eleventh Circuit Court of Appeals has repeatedly held that
members of a parole board and parole officers are entitled to
absolute quasi-judicial immunity from a suit for monetary damages.
Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005)(citing
Fuller v. Georgia State Board of Pardons and Parole, 851 F.2d 1307,
1310 (11th Cir. 1988); see also Clark v. State of Ga. Pardons &
Paroles, 915 F.2d 636, 641 n. 2 (11th Cir. 1990); Sultenfuss v.
Snow, 894 F.2d 1277, 1278-79 (11th Cir. 1990), vacated and affirmed
on other grounds after rehearing en banc, 35 F.3d 1494 (11th Cir.
Plaintiff seeks monetary2 damages against Defendants
1994)).
Carwise and Lest, who are parole examiners, in their individual
capacities
for
their
actions
relative
to
the
Plaintiff’s conditions of release.
Complaint at 4.
quasi-judicial
is
immunity
Plaintiff
prohibited
violation
of
Thus, under
from
seeking
monetary damages against Defendants Carwise and Lest in their
individual capacities. Defendants’ argument that they are entitled
to qualified immunity in their individual capacities is therefore
2
Plaintiff’s claim for declaratory relief, injunctive relief,
and any other relief the Court deems appropriate, is not prohibited
and will proceed.
-14-
moot.
See Holmes, 418 F.3d at 1259 n. 7.
However, to the extent
that Plaintiff seeks declaratory or injunctive relief, the shield
of immunity is inapplicable.
Fuller, 851 F.2d at 1310.
Similarly, the law is well established that the Eleventh
Amendment bars monetary damages against the State.
See Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989)(citing
Kentucky v. Graham, 473 U.S. 159, 165-166 (1985)(other citations
omitted)(stating a suit against a state employee in his official
capacity is a suit against the State for Eleventh Amendment
purposes)).
The Eleventh Amendments also “bars state law claims
against a State in federal court, even where the Plaintiff is only
seeking prospective relief.”
Thorne v. Chairperson Florida Parole
Com’n, 427 F. App’x 765 (11th Cir. 2011)(citing Pennhurst State
School & Hosp. v. Halderman 465 U.S. 89, 103-06 (1984)).
Thus, to
the extent Plaintiff seeks monetary damages against the Chairperson
of the Florida Parole Commission, or against the parole examiners
in their official capacities, his claim for monetary damages is
barred by Eleventh Amendment immunity.
However,
prospective
Plaintiff’s
relief,
request
against
the
for
declaratory
Defendants
in
their
capacities is not barred by the Eleventh Amendment.
U.S. at 167, n. 14.
relief,
or
official
Graham, 473
To set forth an official capacity claim
against Defendants, Plaintiff would have to allege that a custom or
policy set forth by the FPC, or lack thereof, was the “moving
-15-
force” behind the alleged constitutional violation.
Graham, 473
U.S. at 166; see also Monell v. New York Dep’t of Soc. Serv.,
U.S. 658, 690 (1978).
436
Here, Plaintiff claims that the FPC’s lack
of policies impacted him. Complaint at 2. Specifically, Plaintiff
alleges
the
FPC
“failed
to
promulgate
administrative
rules
specifically pertaining to residents at the FCCC.” Id. Therefore,
the Court will allow Plaintiff’s official capacity claim to proceed
against the Defendants.
ACCORDINGLY, it is hereby
ORDERED:
1.
The Motion to Dismiss (Doc. #20) filed on behalf of
Defendants Florida Parole Commission, and parole examiners Pamela
Carwise and Hal William Lest is GRANTED in part and DENIED in part.
2.
The
Motion
to
Dismiss
is
GRANTED
with
respect
to
Plaintiff’s claims for monetary damages against the Florida Parole
Commission and Defendants Carwise and Lest in their official and
individual capacities.
3.
In all other respects, the Motion IS DENIED.
4.
Defendants shall file an answer to Plaintiff’s Complaint
within twenty-one (21) days from the date on this Order.
DONE AND ORDERED at Fort Myers, Florida, on this 16th day of
December, 2011.
-16-
SA: alj
Copies: All Parties of Record
-17-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?