Kleparek v. Florida Civil Commitment Center et al

Filing 2

OPINION AND ORDER dismissing defendants' motion to dismiss (Doc. #1) (2:13-cv-490-FtM-38CM) The Clerk of Court shall terminate any pending motions, enter judgment accordingly, and close this case. The Clerk is further directed to: 1) open a new civil action, nature of suit 530, and docket the complaint (Doc. #1) as the petition, and docket a copy of this order; 2) send plaintiff a 2241 habeas corpus form with the new case number. Petitioner must file an amended petition on the form on or before 1/16/15 if he wishes to proceed in the new action. Signed by Judge Sheri Polster Chappell on 12/10/2014. Signed by Judge Sheri Polster Chappell on 12/10/14. (drn)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
GERALD KLEPAREK,
Plaintiff,
v.

Case No: 2:13-cv-490-FtM-38CM

FLORIDA CIVIL COMMITMENT
CENTER, REBECCA JACKSON,
CRAIG BELOFF, JEFF RONE and
TIMOTHY BUDZ,
Defendants.
/
OPINION AND ORDER 1
This matter comes before the Court upon review of defendants’ motion to dismiss
(Doc. #21, Motion). Plaintiff filed a response in opposition (Doc. #23). For the reasons
that follow, the Court will grant defendants’ motion. However, the Court will direct the
Clerk to docket the instant § 1983 Complaint (Doc. #1) in a habeas corpus action pursuant
to 28 U.S.C. § 2241 and assign the new action the nature of suit code 530.

I.

1

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Plaintiff Gerald Kleparkek, who is civilly detained at the Florida Civil Commitment
Center (FCCC), initiated this action by filing a Civil Rights Complaint pursuant to 42 U.S.C.
§ 1983 (Doc. #1, Complaint) and attached an exhibit consisting of his resident grievance
appeal form and response thereto (Doc. #1-1). The Complaint alleges a violation of
Plaintiff’s Fourteenth Amendment rights stemming from a disciplinary report and
subsequent hearing that resulted in a guilty finding. Plaintiff claims that the disciplinary
report is false and that he was denied due process during the hearing. Plaintiff alleges
that this disciplinary infraction will be considered by the circuit court judge when reviewing
Plaintiff’s civil detention at the FCCC and impact the length of his civil detention. As
relief, Plaintiff requests that the Court “remove” the false disciplinary report from his
records at the FCCC.
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) and attach exhibits that are public records including: (1) Plaintiff’s
petition for writ of mandamus filed in state court in case number 2012-CA-183 (Exh. 1);
(2) the state’s response to the petition filed in case number 2012-CA-183 (Exh. 2); (3) the
state court’s order denying the petition (Exh. 3); (4) the appellate court’s order converting
an appeal to a proceeding in certiorari (Exh. 4); (5) the appellate court’s order per curiam
denying the petition for writ of certiorari (Exh. 5); and (6) an order denying appellant’s
motion for rehearing and clarification (Exh. 6). Defendants argue that the principals of
res judicata bar this § 1983 action because Plaintiff filed an almost identical civil action
(the petition for writ of mandamus) in the state court, which was denied.

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II.
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. 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, 681 (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. Randall v. Scott, 610 F.3d 701, 708, n. 2 (11th
Cir. 2010). 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.”
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. 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. Iqbal, 556 U.S. 662, 677. “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. The “[f]actual allegations must

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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). Additionally, there is no longer a heightened pleading requirement. Randall,
610 F.3d at 701. 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.
Upon review of the Complaint and defendants’ 12(b)(6) motion, the Court finds the
action is not properly filed as a § 1983 action and should have been brought in a habeas
corpus action instead.

Plaintiff asserts that the disciplinary report is false and also

challenges the procedures used during his disciplinary hearing. Plaintiff contends that
this disciplinary infraction impacts the length of his civil confinement. A review of the
Complaint evidences that Plaintiff’s disciplinary infraction has not been expunged.
Instead, expungement of the disciplinary infraction is the very relief Plaintiff seeks through
this action. This relief is more appropriately sought through a habeas action. See
Preiser v. Rodriquez, 411 U.S. 475 (1973). “[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 conduct leading to conviction or internal
prison proceedings)- if success in that action would necessarily demonstrate the invalidity
of the confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Therefore, a “claim for declaratory relief and money damages, based on allegations of
deceit and bias on the part of the decision maker that necessarily imply the invalidity of

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the punishment imposed, is not cognizable under § 1983.” Edwards v. Balisok, 520 U.S.
641, 648 (1997); see Id. at 646-48 (holding that challenge to procedures used in
disciplinary hearing that resulted in the deprivation of good-time credits could not be
brought under § 1983); see generally Jenkins v. Haubert, 179 F.3d 19 (2nd Cir.
1999)(recognizing a plaintiff to bring a § 1983, conditions of confinement suit, when the
plaintiff, who was no longer incarcerated, was challenging the disciplinary process, not
the disciplinary infraction).
The remaining issue is whether the Court should convert the instant § 1983 action
to a habeas action, considering it appears Plaintiff has already exhausted his State court
remedies by filing a state petition for writ of mandamus, which the state court denied on
July 9, 2012. See e.g. Watson v. Briscoe, 554 F.2d 650 (5th Cir. 1977) 2 (affirming district
court’s dismissal of a § 1983 action when the prisoner plaintiff should have filed a habeas
petition challenging the disciplinary report, after exhausting his state remedies, but
remanding for a determination of whether the district court should have stayed the action
pending the plaintiff’s exhaustion of state remedies); Prather v. Norman, 901 F.2d 915
(11th Cir. 1990) (cautioning district courts to consider the effect that treatment of an
inmates’ civil rights complaints as petitions for habeas corpus will have on the future
viability of those claims) (citing Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir. 1981);
Meadows v. Evans, 550 F.2d 345 (5th Cir. 1976) (en banc) (per curiam), cert. denied,
434 U.S. 969; Fulford v. Klein, 550 F.2d 342 (5th Cir. 1977) (en banc) (per curiam)).

2Error!

Main Document Only.In Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981) (en banc) the Eleventh Circuit adopted as binding precedent all the
decisions of the former Fifth Circuit handed down prior to the close of business on
September 30, 1981.

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Here, the Complaint names several defendants, who are represented by counsel from a
private law firm, none of whom would be the proper respondent in a habeas action. The
proper respondent in a habeas action filed by a civil detainee at the FCCC is the Secretary
of the Department of Children and Families, who would be represented by counsel from
the Office of the Florida Attorney General. Consequently, the Court grants defendants’
motion to dismiss, but directs the Clerk to open a new civil action with the Complaint (Doc.
#1) docketed as the petition, nature of suit 530. If Plaintiff wishes to proceed with his
action, he must file an amended petition raising all the claims herein and naming the
proper respondent, the Secretary of the Florida Department of Children and Families, on
or before January 16, 2015.
ACCORDINGLY, it is hereby ORDERED:
1. Defendants’ motion to dismiss (Doc. #1) is GRANTED.
2.

The Clerk of Court shall terminate any pending motions, enter judgment

accordingly, and close this case.
3. The Clerk is further directed to: (1) open a new civil action, nature of suit 530,
and docket the Complaint (Doc. #1) as the Petition, and docket a copy of this order; (2)
send Plaintiff a § 2241 habeas corpus form with the new case number.
4. Petitioner must file an amended petition on the form on or before January 16,
2015, if he wishes to proceed in the new action. Failure to do so will result in the
dismissal of the new action without further notice.
DONE and ORDERED in Fort Myers, Florida on this 10th day of December, 2014.

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SA: alr
Copies: All Parties of Record

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