Huff v. Budz et al

Filing 41

OPINION AND ORDER granting re: 37 MOTION to Dismiss D.E. 12 Plaintiff's Amended Complaint . All claims against these defendants are dismissed for failure to state a claim upon which relief may be granted. The Clerk the Court is directed to terminate any pending motions, close this case, and enter judgment accordingly. Signed by Judge Sheri Polster Chappell on 7/25/2014. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
CLARENCE HUFF,
Plaintiff,
v.

Case No: 2:13-cv-257-FtM-38DNF

REBBECA JACKSON and DONALD
SAWYER,
Defendants.
/
OPINION AND ORDER 1
Plaintiff Clarence Eugene Huff (“Plaintiff”) initiated this action by filing a complaint
pursuant to 42 U.S.C. § 1983 (Doc. 1, filed April 4, 2013). Upon the Court’s direction,
Plaintiff filed an amended complaint which is the operative complaint before the Court
(Doc. 12, filed August 15, 2013). This matter is presently before the Court upon review
of the motion to dismiss Plaintiff's amended complaint filed by Defendants Rebecca
Jackson and Donald Sawyer (collectively, “Defendants”) (Doc. 37, filed April 17, 2014).
Plaintiff has filed a response to the motion to dismiss (Doc. 40), and the motion is now
ripe for review.

1

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the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of
the court.

For the reasons set forth in this Order, Defendants’ motion to dismiss is
GRANTED, and the complaint is dismissed without prejudice for failure to state a claim
upon which relief may be granted. Fed. R. Civ. P. 12(b)(6).
I.

Background and Procedural History

Plaintiff is a resident at the Florida Civil Commitment Center (“FCCC”) in Arcadia,
Florida (Doc. 12). 2

Plaintiff alleges that the defendants have violated his “First

Amendment rights to freedom of speech, choice, expression, and press, under the
Entertainment, Motion Picture, and Video Clauses of the Federal Constitution” by
implementing a policy requiring movies and video games to be approved before a resident
is allowed to view or possess them (Doc. 12 at 5).
2

The Florida legislature enacted the Sexually Violent Predators Act, Florida
Statute §§ 394.910-394.913, by which a person determined to be a sexually violent
predator is required to be housed in a secure facility “for control, care, and treatment until
such time as the person’s mental abnormality or personality disorder has so changed that
it is safe for the person to be at large.” Fla. Stat. § 394.917(2). The Act was promulgated
for the dual purposes “of providing mental health treatment to sexually violent predators
and protecting the public from these individuals.” Westerheide v. State, 831 So. 2d 93,
112 (Fla. 2002); Kansas v. Hendricks, 521 U.S. 346 (1997)(holding that the Kansas
Sexually Violent Predator Act did not establish criminal proceedings, and involuntary
confinement pursuant to the Act was not punitive). Civil commitment under the Act
involves several steps. First, the Act requires a mental evaluation of any person who
has committed a sexually violent offense and is scheduled for release from prison or
involuntary confinement. See generally Fla. Stat. § 394.913. The evaluation is
conducted by a multi-disciplinary team of mental health professionals who must
determine whether the individual meets the definition of a “sexually violent predator.”
After the evaluation, the state attorney may file a petition with the circuit court alleging
that the individual is a sexually violent predator subject to civil commitment under the Act.
Id. If the judge determines the existence of probable cause that the individual is a
sexually violent predator, then he or she will order the individual to remain in custody. Id.
at § 394.915. Thereafter, a jury trial, or a bench trial if neither party requests a jury trial,
will commence. Id. If the jury finds the individual to be a sexually violent predator by
clear and convincing evidence, then the individual will be committed to the custody of the
Department of Children and Family Services for “control, care, and treatment until such
time as the person’s mental abnormality or personality disorder has so changed that it is
safe for the person to be at large.” Id. at § 394.917.

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The allegations of, and attachments to, the complaint state the following: 3
On July 26, 2012, former FCCC director Timothy Budz posted on all the bulletin
boards at the FCCC a memorandum written by Defendant Jackson, stating in pertinent
part:
It has come to my attention that there is some conflicting
information regarding media that may be ordered through the
package request process. Specifically, the question has
been whether Rated R movies may be ordered. We all know
that some Rated R movies are without objection while some
PG or PG-13 movies may be quite inappropriate for the
resident population. This also true of books and video
games. In an effort to avoid blanket denial of all Rated R
movies or video games or blanket approvals of inappropriate
PG/PG-13 movies, all media requests must be approved by
your case manager.
Effective immediately, your package requests must be
presented to your case manager. Any movie, book, or video
game will be individually approved or denied.
(Doc. 12-2 at 1) (emphasis in original). On November 19, 2012, Defendant Jackson
issued another memorandum explaining that a “Media Committee” had been established
“to monitor the therapeutic appropriateness of media at our facility.” (Doc. 12-2 at 2).
Defendant Jackson explained:
Media that is pornographic, contains strong sexual, violent,
and/or sexually violent content is not considered therapeutic
in this environment. Likewise, media that depicts minors
sexually or has a primary audience consisting of children is
not appropriate. Media that promotes or encourages illegal

3

The court may consider documents attached to the complaint or directly
referenced in the complaint as part of the complaint. See Grossman v. Nationsbank, N.A.,
225 F.3d 1228, 1231 (11th Cir. 2000); Brooks v. Blue Cross & Blue Shield, 116 F.3d 1364,
1368-69 (11th Cir. 1997); Solis-Ramirez v. United States Dep't of Justice, 758 F.2d 1426,
1430 (11th Cir. 1985) (Attachments to the complaint “are considered part of the pleadings
for all purposes, including a Rule 12(b)(6) motion.”); Fed. R. Civ. P. 10(c) (“A copy of a
written instrument filed as an exhibit to a pleading is a part thereof for all purposes[.]”).

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activity and/or poses a threat to the safety of the facility, staff,
and/or residents is also prohibited.
(Doc. 12-2 at 2). The memorandum explained the procedures a resident must follow to
request media and provided for a grievance procedure if a resident believed that media
had been unreasonably denied (Doc. 12-1 at 2).
Plaintiff asks this Court for an order directing the defendants to refrain from denying
Plaintiff his “First Amendment Right to own, possess, or order any R-rated video, movie,
video games, book, magazine, or publication allowed by law.” (Doc. 12 at 7).
Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure (Doc. 37). In the motion, Defendants assert that Plaintiff has
not alleged that Defendant Jackson ever actually denied Plaintiff the right to possess any
media. Id.

Defendants also assert that Plaintiff is attempting to attribute liability to

Defendant Sawyer under an impermissible theory of respondeat superior. Id. at 2-5.
Defendants request that this Court dismiss Plaintiff's amended complaint and grant any
other relief deemed proper and just. Id. at 4.
In his response to the complaint, Plaintiff clarified his claims and attached copies
of the requests he had made to the FCCC media committee (Doc. 40). 4
I.

Legal Standards
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,

4

The Court may consider Plaintiff's response and its attachments to the extent
they clarify the allegations in his complaint. See Pegram v. Herdrich, 530 U.S. 211, 230
n.10 (2000) (using Plaintiff's response brief to clarify allegations in her complaint). In
addition, documents central to, or referenced, in a complaint may be considered in a
motion to dismiss. Horsely v. Feldt, 304 F.3d 11325, 1134 (11th Cir. 2002).

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and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir. 2004). The Court must accept all factual allegations in Plaintiff’s amended complaint
as true and take them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). Conclusory allegations, however, are not entitled
to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662 (2009)(discussing a Rule
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. Randall v. Scott, 610 F.3d 701, 708, n.2 (11th
Cir. 2010). A claim is plausible if the plaintiff alleges facts that “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. The plausibility standard requires that a plaintiff allege sufficient facts
“to raise a reasonable expectation that discovery will reveal evidence” that supports the
plaintiff’s claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 556 (2007); Marsh, 268 F.3d
at 1036 n.16. Thus, “the-defendant-unlawfully harmed me accusation” is insufficient.
Iqbal, 556 U.S. 662, 677. “Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Id. (internal modifications omitted). Further,
courts are not "bound to accept as true a legal conclusion couched as a factual
allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
Because Plaintiff is proceeding pro se, the Court construes his complaint more
liberally than had it been drafted by an attorney. See Powell v. Lennon, 914 F.2d 1459,
1463 (11th Cir. 1990).

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II.

Analysis
a.

Plaintiff has not set forth a First Amendment claim based upon the
FCCC’s revised media policy

Plaintiff appears to assert that the FCCC’s requirement that residents get approval
before they may possess or view certain media is unconstitutional on its face. In Turner
v. Safley, the United States Supreme Court held that “when a prison regulation impinges
on inmates' constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests.” 482 U.S. 78, 89 (1987). The Turner court set out four
factors to be used in determining the reasonableness of prison regulations: (1) the
existence of a “valid, rational connection” between the regulation and a legitimate,
neutral government interest; (2) the existence of alternative methods for the inmate to
exercise his constitutional right; (3) the effect the inmate's assertion of that right will have
on the operation of the prison; and (4) the absence of an obvious, easy alternative
method to satisfy the government's legitimate interest. Turner, 482 U.S. at 89–91.
A modified application of the factors set forth in Turner has been used in the civil
confinement context, recognizing that the legitimate government interests are narrower
than in the prison context – i.e. “the government may not justify a limitation on expressive
freedoms based on retribution or general deterrence.” Pesci v. Budz, 730 F.3d 1291,
1298 (11th Cir. 2013); see also Lane v. Williams, 689 F.3d 879, 884 (7th Cir. 2012)
(“Because Turner tells courts to consider the challenged regulation in relation to the
government's legitimate interests, it would not be too difficult to adapt its standard for
claims by civil detainees. To do so, courts would only have to recognize the different
legitimate interests that governments have with regard to prisoners as compared with
civil detainees.”) (dicta).

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As to the first Turner factor, the question that must be addressed is whether the
FCCC’s stated interest in therapy and rehabilitation of sexual predators is rationally
related to the FCCC’s restriction on certain media. Defendant Jackson’s memoranda
reflect that the censorship of certain movies and other media at the FCCC is based upon
the media’s “therapeutic appropriateness” (Doc. 12-2 at 2).

Defendant Jackson

explained that “[m]edia that is pornographic, contains strong sexual, violent, and/or
sexually violent content is not considered therapeutic in this environment.” Defendant
Jackson further noted that certain media involving children or posing a threat to the safety
of faculty or residents would be prohibited. Id.

Because therapeutic and security

concerns are legitimate interest of a mental health facility, the FCCC’s media regulation
has a “valid, rational connection” between the regulation and a legitimate, neutral
government interest. Turner, 482 U.S. at 89–91.
Plaintiff attaches to his complaint a November 19, 2012 memorandum from
Timothy Budz, the former director of the FCCC, which states that there had been
fourteen recent arrests of FCCC residents for the possession of child pornography (Doc.
12-1 at 1).

The memo noted that some people “outside FCCC” attributed the

possession and sharing of child pornography to the center’s liberal media policy. Id.
Plaintiff suggests that the recent arrests of FCCC residents for possession of child
pornography, not therapeutic concerns, was the real reason for the new media policy
(Doc. 12 at 6). The Court agrees that a mere desire for retribution cannot justify a
limitation on expressive freedoms. See Pesci, 730 F.3d at 1298.

However, even if the

adjustment in the media policy was prompted by the arrests of FCCC residents, the Court
fails to see how the FCCC’s concern that residents are being exposed to child

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pornography or other inappropriate material is any less a valid security or therapeutic
concern. A treatment facility is not constitutionally required to maintain the status quo.
Responding to security breaches and experimenting with changes designed to improve
security and the therapeutic environment fall within the deference afforded to those
running the facility. See Lingle v. Kibby, 526 F. App’x 665, at *3 (7th Cir. 2013) (“We
have observed, albeit in dicta, that the question whether a ban on speech is rationally
related to legitimate institutional goals is ‘an objective inquiry;’ the subjective motives of
those who implement the ban should not matter.”).
The Court concludes that the FCCC’s policy requiring prior approval before a
resident is allowed to possess certain media is rationally related to the state's legitimate
interest in maintaining institutional security and a therapeutic treatment environment.
The state's interest in providing comprehensive treatment to sexually violent predators
outweighs Plaintiff's interest in viewing counter-therapeutic material which could interfere
with his treatment program or which could ultimately endanger the public, FCCC
residents, and staff.

Accordingly, the first Turner factor weighs in favor of the

defendants.
Plaintiff’s amended complaint also fails to allege sufficient facts to demonstrate
that the other Turner factors weigh in his favor. Other than insisting that he is entitled
to possess or view any legal R, PG-13, PG, or G rated movie or video game without
restriction, Plaintiff does acknowledge the FCCC’s security concerns and does not
suggest an alternative method for censorship review of the media. Notably, the FCCC’s
July 26, 2012 memorandum specifically stated that the media policy was designed to
avoid a blanket denial of R-rated movies and was designed to limit the amount of

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restricted media. Likewise, the November 19, 2012 memorandum provided for both a
review of material that a resident wished to receive and a grievance process should the
resident disagree with a restriction (Doc. 12-2 at 1; Doc. 12-1 at 2). Finally, even if
certain media is restricted from Plaintiff due to the FCCC’s security concerns, he has
available alternatives to exercise his First Amendment rights. Although Plaintiff asserts
that “90% [of his] requests are denied,” (Doc. 12 at 5), a review of the lists provided by
Plaintiff shows that the majority of Plaintiff's media requests to date have been granted
(Doc. 40-2).

Moreover, Plaintiff was provided a short explanation for each media

request that was denied (Doc. 40-2). Plaintiff does not assert that the reasons for each
denial were incorrect or that he utilized the grievance process for the material to which
he was denied access. See Singer v. Raemisch, 593 F.3d 529, 539 (7th Cir. 2010)
(banning of fantasy role playing games was rationally related to legitimate penological
interests, and prisoner had alternative means of exercising right, such as possessing
other reading materials or playing allowable games).
In sum, the FCCC’s restrictions on movies and video games pass constitutional
muster, and other district courts to have addressed similar First Amendment claims have
reached the same conclusion. See e.g. Lewis v. Phillips, Case No. 10-cv-3163, 2014 WL
1283048 (C.D. Ill. March 28, 2014) (blanket prohibition on R-rated videos for civilly
committed sexually violent predators was rationally related to legitimate safety,
therapeutic, and staffing concerns); Allen v. Mayberg, Case No. 1:06-cv-01801, 2013
WL 3992016 (E.D. Cal. Aug. 1, 2013) (civil commitment facilities have legitimate interest
in prohibiting sexually violent predators from viewing R-rated movies); Martin v.
Richards, Case No. C09-5733RBL/JRC, 2010 WL 2650547, at *1 (W.D. Wash. June 2,

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2010) (“Preventing a sexually violent predator from watching R-rated television does not
violate his constitutional rights.”); Burch v. Jordan, Case No. 07-3236, 2010 WL
5391569, at *21 (D. Kan. Dec. 22, 2010) (a civil commitment center for sexually violent
predators “has a legitimate treatment interest in restricting publications depicting nudity
or pictures of children in general.”); Hedgespeth v. Bartow, Case No. 09–cv–246–slc,
2010 WL 2990897, at *6–*9 (W.D. Wis. July 27, 2010) (media policy banning personal
computers, certain movies, certain video games and gaming systems, and limited
internet usage, instituted at center that civilly detained sexually violent predators was
reasonably related to legitimate institutional concerns).
Plaintiff's construed claim that the FCCC’s media policy is unconstitutional on its
face is dismissed on the ground that Plaintiff has not stated a claim upon which relief
could be granted. Fed. R. Civ. P. 12(b)(6).
b.

Plaintiff has not stated a claim based upon the
unconstitutional actions of Defendants Sawyer or Jackson

specific

Rule 8 of the Federal Rules of Civil Procedure requires that a complaint make “a
a short and plain statement of the claim showing that the pleader is entitled to relief[.]”
Fed. R. Civ. P. 8(a). Plaintiff argues that Defendant Jackson is the supervisor of the
media committee and “has final say to the media Committee members as to what can
and cannot be approved.” (Doc. 40 at 2). However, Plaintiff does not specifically point
to an instance in which his own constitutional rights were violated by the media committee
or by Defendant Jackson personally. Likewise, Plaintiff asserts that Defendant Sawyer
is liable because “when a person in authority has control over a facility such as FCCC,
they have control over any internal committees, and or their supervisors.” Id. at 3.
Plaintiff makes no additional allegations against these defendants other than to argue that

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Defendant Jackson posted the memoranda describing the new policy and that Defendant
Sawyer “continues to allow the denial of Plaintiff's First Amendment rights of the Federal
Constitution[.]” (Doc. 12 at 6).
To the extent Plaintiff's amended complaint can be interpreted to assert that an
unnamed media committee member unconstitutionally restricted his access to specific
permissible media, he has not stated a claim.

Although Plaintiff asserts that both

defendants are liable for the unconstitutional actions of the members of the media
committee, he is mistaken. A defendant cannot be held liable under § 1983 based solely
on the theory of respondeat superior or vicarious liability. Hyland v. Kolhage, 267 F. App’x
836, 841 (11th Cir. 2008); Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Supervisory liability can be established only “when the supervisor personally participates
in the alleged constitutional violation or when there is a causal connection between the
actions of the supervising official and the alleged constitutional deprivation.” Mathews v.
Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (internal quotations omitted).

When

determining whether there is a causal connection between a defendant's action and the
alleged deprivation of a constitutional right, mere knowledge of a potential deprivation is
not sufficient to impose liability on a supervisor. Iqbal, 556 U.S. at 677. Rather, in order
to state a claim against the supervisor, the plaintiff must allege purposeful action by the
supervisor to deprive plaintiff of a constitutional right. Id. At no point in his complaint
does Plaintiff allege that Defendant Sawyer of Defendant Jackson personally participated
in an active plan to deny him access to permissible media.
As discussed above, the media policy at issue is not unconstitutional. See
discussion supra Part II(a). Therefore, neither defendant is liable for creating, promoting,

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or enforcing the policy. Likewise, Plaintiff has not alleged any personal unconstitutional
conduct on the part of either defendant. Accordingly, the claims against Defendants
Sawyer and Jackson are dismissed pursuant to Rules 8 and 12(b)(6) of the Federal Rules
of Civil Procedure.
IV.

Conclusion
Construing all allegations in the amended complaint in Plaintiff's favor, he has

failed to state a claim that the challenged FCCC media regulation is unconstitutional on
its face or that any defendant acted unconstitutionally.
Accordingly, it is now ORDERED:
1.

The Motion to Dismiss filed by Defendants Sawyer and Jackson (Doc. 37)

is GRANTED. All claims against these defendants are dismissed for failure to state a
claim upon which relief may be granted;
2.

The Clerk of Court is directed to terminate any pending motions, close this

case, and enter judgment accordingly.
DONE and ORDERED in Fort Myers, Florida on this 25th day of July, 2014.

SA: OrlP-4
Copies: Clarence Eugene Huff
Counsel of Record

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