Kleparek v. Florida Civil Commitment Center et al

Filing 20

OPINION AND ORDER denying 3 Petition for writ of habeas corpus. A certificate of appealability and leave to appeal in forma pauperis are denied. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the case. Signed by Judge John E. Steele on 11/5/2015. (RKR)

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

Case No: 2:14-cv-725-FtM-29MRM

MIKE
CARROLL,
Secretary,
Department of Children and
Families,
Respondent.
OPINION AND ORDER
Before the Court is a petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2241 by Gerald Kleparek (“Petitioner”)
(Doc. 3, filed January 20, 2015).

Petitioner, proceeding pro se,

is civilly detained at the Florida Civil Commitment Center (“FCCC”)
in

Arcadia,

Petitioner's

Florida.

The

Fourteenth

petition

Amendment

alleges
rights

a

violation

stemming

from

of
a

disciplinary report and subsequent hearing that resulted in a
guilty

finding.

Respondent

filed

a

response

(Doc.

14),

and

Petitioner filed a reply (Doc. 18).
I.
On

Background and Procedural History
November

23,

2011,

Petitioner

was

disrespectful comments to staff at the FCCC. 1

1

The report on this incident stated:

accused

of

making

He was charged with

a violation of Facility Rule G-10 – Insolence or Disrespect (Doc.
14-1 at 9).

Petitioner was given notice of the violation which

stated that “[t]his type of behavior constitutes a minor rule
violation and jeopardizes the normal operations and safety of the
facility.” Id.

A disciplinary hearing was held on November 30,

2011, and Petitioner was found guilty of insolence or disrespect
as charged. Id. at 10.

The finding of guilt did not result in the

loss of any rights or privileges, but Petitioner asserts that the
finding is now a part of his permanent record (Doc. 3 at 8).
Petitioner’s appeal of the finding was denied (Doc. 3 at 16).
His appeal of the denial was also denied (Doc. 14-1 at 11).
Subsequently, Petitioner filed a petition for writ of mandamus in
the Circuit Court for the Twelfth Judicial Circuit for DeSoto

On 11-23-11 at approx. 8:10 AM while assigned
to Planets, CL Lames called down and requested
R/D/ Holley 1084 and R/D Kleparek 903 to come
to medical. CI Lande called for both in the
dorm. R/D Holley was ready in approx. 10 mins
and exited.
R/D Kleparek came to the
officer’yess window at approx. 8:30 and
stated, “I know I had to go but you stupid
pople didn’t let me know soon enough, so I’m
taking my sweet fucking time getting ready.”
At 9:00 AM Loreto entered Saturn dorm and told
Kleparek “we must go now” “we’re late.”
Kleparek stated, “I’ll go when I’m ready.”
C/O Loreto then stated, “I’ll go see the OIC.”
He then exited.
The OIC was notified and this report written.
(Doc. 14-1 at 8).

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County, Florida in which he raised the same claims as raised in
the instant habeas petition (Doc. 14 at 1).

The circuit court

denied the claim, and Florida’s Second District Court of Appeal
converted Petitioner's appeal to certiorari review and denied the
petition. Id. at 2.

Subsequently, Petitioner filed a civil rights

complaint in this Court against the FCCC and its staff members
(MDFL Case No. 2:13-cv-490-FtM-38CM).

This Court dismissed the

complaint and directed Petitioner to file the instant petition for
writ of habeas corpus. Id.
Petitioner filed this habeas petition on January 20, 2015
(Doc. 3).

He claims that the disciplinary report is false and

that he was denied due process during the hearing.
he

asserts

additional

that

he

charges

was
that

not
may

given
be

advance

levied

or

Specifically,

notice

of

considered

“other
by

the

disciplinary committee” and that he was not provided with a written
statement of the charges of which he was found guilty. Id. at 67.

Petitioner also asserts that his reputation at the FCCC was

harmed by the disciplinary report. Id. at 17.

Petitioner alleges

that this disciplinary infraction will be considered by the circuit
court judge when reviewing his civil detention at the FCCC and
could impact the length of his civil detention. Petitioner requests
that the Court “remove” the false disciplinary report from his
records at the FCCC. Id.

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Respondent argues that the petition should be denied or
dismissed on the following grounds: (1) the petition is timebarred; (2) Petitioner has not alleged any constitutional injury;
(3) Petitioner's claims are moot; (4) the petition is unexhausted;
and (5) the violation found was the same as charged in the written
notice (Doc. 14).
II.

Analysis

In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States
Supreme Court found that due process requires that prisoners who
receive discipline resulting in the loss of good-time credits or
the imposition of solitary confinement be afforded minimal due
process protections. 2

2

The Court recognizes that Petitioner is not a prisoner. The
Supreme Court has concluded that, as a general rule, civil
detainees are “entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish.” Youngberg v. Romero, 457 U.S.
307, 322 (1982). Indeed, the involuntarily civilly committed have
liberty interests under the due process clause of the Fourteenth
Amendment to reasonably safe conditions of confinement, freedom
from unreasonable bodily restraints, and such minimally adequate
training as might be required to ensure safety and freedom from
restraint. Id. The Eleventh Circuit similarly has held that
“Youngberg establishes that the due process rights of the
involuntarily civilly committed are at least as extensive as the
Eighth Amendment rights of the criminally institutionalized, and
therefore, relevant case law in the Eighth Amendment context also
serves to set forth the contours of the due process rights of the
civilly committed.” Lavender v. Kearney, 206 F. App’x 860, *2 (11th
Cir. 2006) (footnote omitted, quoting Dolihite v. Maughon, 74 F.3d
1027, 1041 (11th Cir. 1996) (quotation marks omitted)). Therefore,
the case law that has developed under the Eighth Amendment also

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The Supreme Court subsequently limited Wolff to situations
where

a

punitive

action

causes

an

“atypical

significant

deprivation” in which a State might conceivably have created a
liberty interest. See Sandin v. Conner, 515 U.S. 472, 486 (1995).
In Sandin, the Court considered a due process claim from an inmate
whose disciplinary write-up caused him to be segregated from the
normal prison population.

The Court stated that:

Discipline by prison officials in response to
a wide range of misconduct falls within the
expected perimeters of the sentence imposed by
a court of law. This case, though concededly
punitive,
does
not
present
a
dramatic
departure from the basic conditions of
Conner’s indeterminate sentence.
Id. at 485; see also Wilkinson v. Austin, 545 U.S. 209, 220 (2009)
(“The 14th Amendment’s due process clause protects persons against
deprivations of life, liberty, or property, and those who seek to
invoke its procedural protection must establish that one of these
interests is at stake.”).
Respondent argues that “[n]either the length of Petitioner's
confinement nor the conditions of his confinement were affected in
any manner by the record of the Behavior Management Committee’s
2011 decision and the Petition does not allege otherwise.” (Doc.

sets forth the contours of the due process rights of the civilly
committed. Id.

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14 at 5). 3

As a result, argues Respondent, Petitioner has not

alleged any “constitutionally cognizable injury.” (Doc. 14 at 7).
Respondent also urges that “[i]njury to reputation, by itself,
does not constitute the deprivation of a liberty or property
interest protected under the Fourteenth Amendment.” Id. (citing
Behrens v. Regier, 422 F.3d 1255, 1259 (11th Cir. 2005)).

This

Court is persuaded by Respondent’s argument, and concludes that
this situation is governed by the precedent set forth by the
Supreme Court in Sandin.
Avoiding a behavior report will not automatically entitle an
FCCC patient to release, and it is not the type of liberty interest
protected by, and requiring, a Wolff style hearing. See Sandin,
515 U.S. at 487 (“[T]he claim that a finding of misconduct [during
prison] will alter the balance [in a parole hearing] is simply too
attenuated to invoke the procedural guarantee of the Due Process
Clause”);Moulds v. Bullard, 452 F. App'x 851, 854–55 (11th Cir.
2011)(recognizing

that,

under

3

Sandin,

a

prisoner

is

In support of this assertion, Respondent attaches an
affidavit from the Clinical Director of the FCCC.
In the
affidavit, Director Rebecca Jackson attests that residents of the
FCCC receive a progress report on the anniversary date of their
commitment and that these reports provide the committing court
“with a review of the resident’s progress in treatment and their
behavior at the FCCC.” (Doc. 14-1 at ¶ 7).
Only the progress
report submitted on December 11, 2011 refers to the disciplinary
report at issue in this petition. Id. The three subsequent reports
did not reference the disciplinary report. Id.

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“constitutionally entitled to procedural due process” only if
deprived

of

a

protected

liberty

interest

that

shortens

his

confinement); Moore v. Pemberton, 110 F.3d 22, 23 (7th Cir. 1997)
(prisoner did not suffer a liberty loss when he received as
disciplinary punishment a verbal reprimand). In addition, any
damage to Petitioner's reputation at the FCCC as a result of the
behavior report does not implicate due process concerns. Paul v.
Davis, 424 U.S. 693, 701-02 (1976)(injury to reputation, by itself,
does not constitute the deprivation of a liberty or property
interest protected under the Fourteenth Amendment).

Petitioner

has

support

failed

to

articulate

a

liberty

interest

to

a

constitutional claim.
Even assuming that the Behavior Management Committee was
required to comply with Wolff due process, the record before the
Court shows that it did so.

The Supreme Court has held that when

a prison disciplinary proceeding may result in the loss of good
time credits, a prisoner is entitled to the following three minimal
procedural protections: (1) advance, written notice of the charges
against him and at least 24 hours to prepare a defense; (2) an
opportunity,

when

consistent

with

institutional

safety

and

correctional goals, to call witnesses and present documentary
evidence in his own behalf; and (3) a written statement by the
fact finder of the evidence relied upon and the reasons for the
disciplinary action. See Wolff, 418 U.S. at 563-66.

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Moreover,

“the requirements of due process are satisfied if some evidence
supports

the

decision

by

the

prison

disciplinary

board[.]”

Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455
(1985).
In the instant case, Petitioner was timely provided with a
written

notice

Petitioner

of

admits

the
that

charge
he

against

attended

him

the

(Doc.

hearing

14-1
and

at

9).

had

the

opportunity to present testimony in his defense (Doc. 3 at 14).
Petitioner describes what happened afterwards as follows:
Plaintiff was told by Major Beloff that
regardless of what was said or not said, the
facility has to conduct operations, and by not
leaving on the trip when told caused a
disruption.
I was in fact guilty of
disrupting facility operations.
Rebecca
Jackson then immediately stated that I would
be found to be guilty of a minor violation,
and to keep in mind that if I were to receive
two more, that this would then constitute a
major violation with more severe consequences.
Id. at 14-15.

A written “Facility Management Review and Response”

was provided to Petitioner (Doc. 14-1).

The Wolff requirements

were satisfied by the actions of the FCCC staff members.
To the extent Petitioner argues that insufficient evidence
existed

for

disagrees.

the

committee’s

disciplinary

finding,

the

Court

Petitioner admits that he did not leave for his

doctor’s appointment when told to do so because he wanted to take
a shower (Doc. 3 at 11-12).

It was explained that his refusal

disrupted facility operations. Id. at 14-15.

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Petitioner has

alleged facts necessary to show that “some evidence” existed to
find

him

guilty

of

a

minor

rule

violation.

“The

fundamental

fairness guaranteed by the Due Process Clause does not require
courts to set aside decisions of prison administrators that have
some basis in fact.” Hill, 472 U.S. at 456.
Petitioner's argument that he was found guilty of a different
infraction than charged is unsupported.

He bases his assertion

upon a response to his appeal which read:
Your grievance appeal is denied.
The
disciplinary committee made the determination
based upon the facts surrounding the charge,
witness statements, etc.
As you left the
room, you have no evidence to show the finding
was inappropriate.
If the committee during
the hearing discussed other evidence, charges
can be changed or additional charges filed.
(Doc. 14-1 at 11) (emphasis added).
response

suggests

that

the

A plain reading of the

disciplinary

committee

made

the

determination of Petitioner's guilt from “the facts surrounding
the charge, witness statements, etc.” Id.

Although the response

indicated that additional charges could be filed, there is no
evidence that any additional charges were actually filed or that
Petitioner was found guilty of a different charge than that of
which he was provided notice (Doc. 14-1 at 9-10).
III. Conclusion
Petitioner has neither demonstrated that he was entitled to
due process at this disciplinary proceeding or that such process

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was denied.

Because Petitioner is not entitled to federal habeas

corpus relief, the Court will not address Respondent’s remaining
grounds for dismissal.
ACCORDINGLY, it is hereby
ORDERED AND ADJUDGED:
1. The petition for writ of habeas corpus (Doc. 3) is DENIED.
2.

The

Clerk

of

Court

is

directed

to

enter

judgment

accordingly, terminate any pending motions, and close this case.
A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a
certificate of appealability.

A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court's
denial of his petition. 28 U.S.C. § 2253(c)(1).

Rather, a district

court must first issue a certificate of appealability. Id. “A
certificate of appealability may issue ... only if the applicant
has made a substantial showing of the denial of a constitutional
right.”

Id.

at

§

2253(c)(2).

To

merit

a

certificate

of

appealability, Petitioner must show that reasonable jurists would
find debatable both (1) the merits of the underlying claims and
(2) the procedural issues he seeks to raise. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v.
Linahan, 279 F.3d 926, 935 (11th Cir. 2001).

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Petitioner has not

made the requisite showing in these circumstances and is not entitled
to a certificate of appealability.

Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Fort Myers, Florida on this
of November, 2015.

SA: OrlP-4
Copies: Gerald Kleparek
Counsel of Record

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5th

day