Young v. Scott et al

Filing 64

OPINION AND ORDER granting re: 58 Amended MOTION for summary judgment and Memorandum of Law. The Clerk of Court shall terminate all pending motions, enter judgment accordingly, and close this case. Signed by Judge Sheri Polster Chappell on 8/24/2017. (SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL GEORGE YOUNG, JR.,
Plaintiff,
v.

Case No: 2:16-cv-44-FtM-38MRM

MIKE SCOTT, THOMAS
EBERHART, JAMES BARACCO,
KEVIN KOLLER and MIA
RODGERS,
Defendants.
/
OPINION AND ORDER1
I.
Plaintiff Michael George Young, Jr., initiated this 42 U.S.C. § 1983 action
proceeding pro se as a pre-trial detainee at the Lee County Jail. Plaintiff is proceeding
on his Amended Complaint (Doc. #56) filed October 26, 2016, against the following
defendants from the Lee County Sheriff’s Office: Sheriff Mike Scott, Colonel Thomas
Eberhard, Major James Baracco, Captain Kevin Koller, and Captain Mia Rodgers in their
official and individual capacities. Doc. #56 at 3-4.

1

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Under the “Statement of Claim” portion on the Amended Complaint, Plaintiff
summarizes his claims against Defendants as follows:
In violating Mr. Young’s First Amendment rights, Sheriff Mike
Scott’s policies, rules, and procedures of visitation violate Mr.
Young’s liberty interest to intimate association with his
daughter. They violated Florida State law and Florida Model
Jail standards of allowing all persons held within [its] state
prisons and county jail systems visitation with their spouses,
children, relatives, and friends. This also a violation of due
process of law and equal protection rights of the 5th and 14th
Amendments.
In violating Mr. Young’s [Eighth] Amendment right, Sheriff
Mike Scott and his officers in charge of the corrections and
the care and well-being of Mr. Young and denying him
visitation without regard to his mental and emotional stat[u]s.
This is further compounded by the fact, as show in in Exhibit
“I” that the current system has capabilities of being upgraded
with software and hardware at a [minimal] cost. The
“Deliberate Indifference” being shown to Mr. Young
constitutes cruel and unusual punishment. Mr. Young is also
subjected needlessly to the mental and emotional stresses of
long term separation from family and friends without hope of
ever seeing his daughter again, unless she can scrape up
enough money to come all the way to Fort Myers, Florida.
In violation of Mr. Young’s [Fifth] and [Fourteenth]
Amendment rights, Sheriff Mike Scott and the other
defendants in charge of Mr. Young’s care and well-being
violated his Substantive Due Process rights in not allowing
some form of hearing or other mediation method to find a
solution for the denial of visitation with his daughter. He has
suffered cruel and unusual punishment from the long term
denial to see Ms. Young and is suffering from mental and
emotional anguish, tensions, and stresses unjustly placed
upon him. He suffers from daily depressive episodes and
mental hardships needlessly due to this denial. His Equal
Protection rights are violated in the denial of allowing him the
same rights, privileges, and immunities that others enjoy
during their detainments. His liberty interest is violated in the
denial of his intimate association with Ms. Young.
Doc. #56 at 5-7. As relief Plaintiff seeks declaratory relief, injunctive relief, and monetary
damages. Id. at 14.

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Defendants’ move for summary judgment in an Amended Motion for Summary
Judgment (Doc. #58) filed on November 2, 2016. Defendants refer to the following
exhibits in support of their motion: Affidavit of Colonel Thomas Eberhardt (Doc. 58-1, Aff.
Eberhardt), Affidavit of Deputy First Class Bryon Haycook (Doc. #58-2, Aff. Haycook),
and a copy of the final criminal judgment entered against Plaintiff in the Twentieth Judicial
Circuit Court (Doc. #58-3).2
Defendants argue that none of Plaintiff’s allegations rise to the level of a
Constitutional violation.

Doc. #58 at 7.

Regarding the visitation claim, Defendants

recognize that pre-trial detainees have a Constitutional right to reasonable visitation. Id.
at 8 (citing Jones v. Diamond, 594 F.2d 997, 1013 (5th Cir 1979)). However, Defendants
argue that visitation may be limited when necessary to preserve institutional security. Id.
Defendants argue that the Lee County Sheriff’s policy prohibiting Skype-style visitation
was implemented to preserve institutional security. Id. at 9.
In support of the security argument, Defendants opine that if inmates were
permitted Skype visitation they could “pass messages, plan escapes, or conduct gang
related, or other criminal activity” because the correctional officials would lose the ability
to control and supervise the visitors visiting each inmate.

Id. at 4 (Exh. A ¶ 8).

Defendants further state that Skype visitation would have a negative effect on security
“as the secure network could be compromised due to open connections outside the
firewalls.” Id. at 4 (citing Exh. A ¶ 9). Defendants submit that the current video visitation
Although Colonel Eberhardt’s affidavit refers to Lee County Corrections Bureau SOP
5.03 as an attachment to his affidavit, see Doc. #58-1 at 2, the Standard Operating
Procedures are not attached to his affidavit, nor do the SOP appear elsewhere in the
record.
2

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system is not compatible with Skype and the cost associated with adding even one Skype
portal would be $25,580.00.

Id. at 5, 10; see also Aff. Haycook, Doc. #58-2 at 2.

Defendants explain that the current visitation procedures allow standard video visitation
and allow the Lee County Sheriff’s Office to control the number of visitors, the identity of
the visitors, the items a visitor can bring with them to visitation, and the behavior of the
visitors. Id.
Defendants Eberhardt, Baracco, and Koller further argue that the Amended
Complaint does not allege they were personally involved in the alleged Constitutional
deprivations. Id.

In fact, Defendants point out that their names are not even mentioned

in the Amended Complaint.

Id.

Because there is no affirmative causal connection

between the Defendants and the alleged Constitutional deprivations, they move for
summary judgment. Id.
Despite Plaintiff being allotted additional time to respond to the Defendants’
amended motion in response to Plaintiff’s Amended Complaint, Plaintiff did not file an
amended response and the time to do so has long expired. See Doc. #61. Considering
Plaintiff is proceeding pro se, the Court will consider Plaintiff’s previous response (Doc.
#39) opposing Defendants’ initial motion for summary judgment because both motions
are substantially the same.

Attached to Plaintiff’s response is a document entitled

“Psychiatric opinions on visitation” (Doc. #39-1).
In response to Defendants’ allegations that the Complaint contains no allegations
of personal involvement, Plaintiff argues that all Defendants established the jail’s policies
and procedures board. Doc. #39 at 13. Plaintiff recognizes that Defendant Baracco’s
name is not mentioned in the Complaint, but states he identified Baracco as a defendant

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due to his position in the chain-of-command and his long career with the Lee County
Corrections Bureau. Id. Plaintiff contends Defendants violated his First Amendment
rights because of the jail’s policy prohibiting Skype visitation is arbitrary and capricious.
Id. at 3.
In support of Plaintiff’s Due Process and Equal Protection claims, he argues that
Florida law, specifically Florida’s Model Jail Standards, have created a liberty interest to
two-hours a week of visitation. Id. at 4. Plaintiff further contends that the current video
system is compatible with a software program called Viszo, which is used by the Public
Defender’s Office to communicate with their clients at the jail. Id. at 6.
In support of Plaintiff’s Eighth, or Fourteenth Amendment, claim of cruel and
unusual punishment, he contends he faced cruel and unusual punishment by having a
long-term denial of visitation with his family and friends who could not travel to Fort Myers
to participate in the video visitation at the Ortiz facility. Id. at 10. This matter is ripe for
review.
II.
“Summary judgment is appropriate only if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011)(internal quotations and
citations omitted). See also, Fed. R. Civ. P. 56(c)(2). “The moving party may meet its
burden to show that there are no genuine issues of material fact by demonstrating that
there is a lack of evidence to support the essential elements that the non-moving party
must prove at trial.” Moton, 631 F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). The standard for creating a genuine dispute of fact requires the court

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to “make all reasonable inferences in favor of the party opposing summary judgment,”
Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)(en banc)(emphasis added),
not to make all possible inferences in the non-moving party=s favor. To avoid the entry
of summary judgment, a party faced with a properly supported summary judgment motion
“bears the burden of persuasion@ and must come forward with extrinsic evidence, i.e.,
affidavits, depositions, answers to interrogatories, and/or admissions, and “set forth
specific facts showing that there is a genuine issue for trial.” Beard v. Banks, 548 U.S.
521, 529 (2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v. Murata Elecs. N.
Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999). If there is a conflict in the evidence, the
non-moving party=s evidence is to be believed and “all justifiable inferences” must be
drawn in favor of the non-moving party. Beard, 548 U.S. at 529 (citations omitted); Shotz
v. City of Plantation, Fl., 344 F.3d 1161, 1164 (11th Cir. 2003). “A court need not permit
a case to go to a jury, however, when the inferences that are drawn from the evidence,
and upon which the non-movant relies, are >implausible.’”

Cuesta v. School Bd. of

Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002) (citations omitted). Nor are
conclusory allegations based on subjective beliefs sufficient to create a genuine issue of
material fact. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000). AWhen
opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version
of the facts for purposes of ruling on a motion for summary judgment.@ Scott v. Harris,
550 U.S. 372, 380 (2007).

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III.
The parties do not dispute most of the facts that are necessary to resolve this case.
See Doc. #58 at 3, fn. 1. Plaintiff was a pre-trial detainee at the Lee County Jail during
the incidents giving rise to the cause of action. Id. at 5. Plaintiff’s daughter was serving
in the United States Army and was stationed at Fort Bliss, Texas during Plaintiff’s pre-trial
detention at the jail. Id. at 8. In the spring and summer of 2014, Plaintiff filed his first
inmate grievances and requests to access Skype-style videoconference visitation, so he
could visit with his daughter.

Id.

Plaintiff’s inmate grievances and requests were

denied. Id. Plaintiff again filed inmate grievances and requests to access Skype video
visitation with his daughter in July 2015. Id. at 9. Defendant Rogers denied Plaintiff’s
inmate requests and grievances.

Id. (citing Pl’s Exh. B). Plaintiff’s grievance filing

continued in November and December 2015, see Pl’s Exh. C, Exh. E, to which Plaintiff
either received no reply, or jail officials denied his request explaining that the jail only has
video visitation, not Skype. The video visitation in place at the Lee County Jail requires
visitors to go to the core facility located off site. Id. at 10 (citing P’s Exh. E).
The Defendants submit that the Lee County Jail’s standard operating procedures,
which apply equally to pre-trial detainees and inmates at the county jail, do not allow any
inmate to have Skype-style videoconference visitation. Doc. #58-1, Aff. Eberhardt at 12. Defendants state that the restriction is necessary to maintain security.

Id. at 2.

Defendants opine that allowing Skype would pose security risks at the jail including, but
not limited to, not knowing whether visitors were engaging in behavior that could
potentially negatively affect the security of the jail, such as, passing of messages,
planning escapes, and conducting gang or other criminal activity. Id.

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Plaintiff disputes Defendants’ security concerns and argues that the chances “of
passing contraband, harm to visitors, or passing a weapon are non-existent.” To the
contrary, Plaintiff asserts security is the purpose of this type of visitation. “Institutional
security is very well preserved by this type of non-contact visitation.” Doc. #39 at 8.
Aside from Plaintiff’s lone allegations, he presents no evidence to dispute Defendants’
affidavits.
A. Eighth and Fourteenth Amendment Claims
The United States Supreme Court has observed:
Running a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of the
Legislative and Executive branches of Government. Prison
administration is, moreover, a task that has been committed
to the responsibility of those branches, and separation of
powers concerns counsel a policy of judicial restraint. Where
a state penal system is involved, federal courts have . . .
additional reason to accord deference to the appropriate
prison authorities.
Turner v. Safley, 482 U.S 78, 84-85 (1987) (citation omitted).

Thus, this Court is

cognizant of the deference owed to prison authorities’ decisions in maintaining a safe and
orderly facility.

Despite this deference, courts facing challenges to jail policies that

denied pre-trial detainees contact visits with family have on occasion deemed such
blanket denials unconstitutional. See Miller v. Carson, 563 F.2d 741, 747 (5th Cir. 1977)
(“‘There can be no doubt that the necessity of assuring security must be balanced against
the right to humane treatment of prisoners and that if contact visits (visits that permit
inmates to touch their visitors) are incompatible with that need they must be scarified.
The critical question is whether the two can coexist. We are persuaded they can . . .”
So said the Court in Rhem v. Malcolm, 371 F.Supp at 605. So said the trial judge in this

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case. So say we.’”); Marcera v. Chinlund, 595 F.2d 1231 (2d Cir. 1979) (all pretrial
detainees except those classified as a security risk are entitled to contact visits);
Detainees of the Brooklyn House of Detention for Men v. Malcolm, 421 F. Supp. 832,
(E.D. NY Oct. 8, 1976) (finding no contact visitation for pretrial detainees violated Due
Process and Equal Protection Clauses); Doe v. Sparks, 733 F. Supp. 227, 234 (W.D. PA
Aug. 20, 1990) (finding no contact visitation policy violated Equal Protection Clause of the
Fourteenth Amendment); contra, Feeley v. Sampson, 570 F.2d 364, 373 (1st Cir. 1978)
(finding pretrial detainees do not have right to a contact visit). Contact visitation is not at
issue in this case, however.
Here, the issue presented is whether the record presents a question of material
fact that Defendants violated Plaintiff’s rights protected under the United States
Constitution by not providing Skype visitation, so Plaintiff could visit with his daughter who
resided out of state. As a result of a Lee County Jail policy restricting Skye visitation,
Plaintiff had no opportunities for visitation during his pre-trial detention because his family
did not reside in Florida.
The applicable standard for reviewing pre-trial detainees’ challenges to the
constitutionality of conditions or restrictions that implicate a deprivation of liberty without
due process of law is set forth in Bell v. Wolfish, 441 U.S. 520 (1979). Id. at 535. The
proper inquiry is whether the conditions amount to punishment of the detainee because
a pretrial detainee may not be punished prior to an adjudication of guilt under the Due
Process Clause. Id. at 535-536. Notably not every disability imposed during pretrial
detention amounts to punishment.

Id. at 538.

amounts to punishment, the courts consider:

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To determine whether a condition

[W]hether the disability is imposed for the purpose of
punishment or whether it is but an incident of some other
legitimate governmental purpose. . . . Absent a showing of an
expressed intent to punish on the part of detention facility
officials, that determination generally will turn on ‘whether an
alternative purpose to which [the restriction] may rationally be
connected is assignable for it, and whether it appears
excessive in relation to the alternative purpose assigned [to
it].’ . . . Thus, if a particular condition or restriction of pretrial
detention is reasonably related to a legitimate governmental
objective, it does not, without more, amount to ‘punishment.’
Id. at 538-539.
Here, the undisputed record evidence shows that Skype was not permitted at the
Lee County Jail for any inmate or pretrial detainee.3 The record shows no expressed
intent to punish by not allowing Skype visitation to Plaintiff. Instead, Defendants present
affidavits from correctional officials who submit that Skype visitation would be detrimental
to security at the county jail. Defendants further present evidence that the current video
visitation system would not function with Skype visitation. A salient difference between
the current video visitations in place as opposed to Skype visitation is the correctional
officials’ ability to see what is happening on the other side of the camera at the main
facility. To the contrary, Skype visitation would essentially allow visitors on the nondetained side unfettered communication with the detained individual. Considering the
absence of evidence that Defendants had an expressed intent to punish and in light of
the legitimate governmental objective to keeping the facility secure, the record contains
no genuine dispute of material fact concerning Plaintiff’s due process, or conditions of

3

Because the visitation policy is the same for all individuals detained at the jail, no
Equal Protection claim exists.

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confinement claim.

Defendants are entitled to summary judgment on Plaintiff’s

Fourteenth and Eighth Amendment claims.
B. First Amendment
Plaintiff also challenges the Lee County Jail’s policy prohibiting Skype visitation
under the First Amendment. Although Defendants submit that “the constitutionality of
limitations imposed on visitation for pretrial detainees involves an analysis under the
Fourteenth Amendment, rather than the Fifth or First,” this Court’s independent review
revealed no prohibition to the First or Fifth Amendments applying to the county jail’s
visitation policy. One case Defendants cite in support of the proposition that the Fifth or
First Amendment analysis does not apply in this case, Miller v. Carson, 563 F.2d 741,
746 (5th Cir. 1977), in fact stated that “because the appellants to do not attack the trial
judge’s conclusions of law, we need not determine which constitutional amendment is
applicable to what misconduct by the prison authorities.” Courts have reviewed visitation
policies affecting convicted prisoners for compliance with free speech under the First
Amendment and the Equal Protection Clause under the Fifth and Fourteenth
Amendments. The United States Supreme Court has held:
[C]onvicted prisoners do not forget all constitutional
protections by reason of their conviction and confinement in
prison.
‘There is no iron curtain drawn between the
Constitution and the prisons of this country. So, for example,
case have held that sentenced prisoners enjoy freedom of
speech and religion under the First and Fourteenth
Amendments; that they are protected against invidious
discrimination on the basis of race under the Equal Protection
Clause of the Fourteenth Amendment; and that they may
claim the protection of the Due Process Clause to prevent
additional deprivation of life, liberty, or property without due
process of law. A fortiori, pretrial detainees, who have not
been convicted of any crimes, retain at least those

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constitutional rights that we have held are enjoyed by
convicted prisoners.
Bell v. Wolfish, 41 U.S. 520, 545 (1979) (emphasis added) (internal citations omitted).
See also Doe v. Sparks, 733 F.Supp. 227 (W.D. PA March 14, 1990) (addressing Fifth
and Fourteenth Amendment Equal Protection claim and to anti-homosexual visitation
policy affecting a convicted prisoner); McMillian v. Carlson, 369 F. Supp. 1182, 1188 (D.
Mass. Dec. 31, 1973) (finding First Amendment free speech violation stemming from
Federal Bureau of Prison’s visitation policy precluding a reporter from personally
interviewing a federal inmate) .
In Turner v. Safley, the Supreme Court articulated the following four considerations
as guidelines in determining whether a prison policy was valid: (1) “there must be a ‘valid
rational connection’ between the prison regulation and the legitimate governmental
interest put forth to justify it”; (2) “whether there are alternate means of exercising the right
that remain open to prison inmates”; (3) the impact of accommodating the asserted
constitutional right on guards and other inmates; and, (4) the absence of ready
alternatives is evidence of the reasonableness of a prison regulation. 482 U.S. at 89-91.
At issue in this case is the Lee County Jail’s visitation policy, which prohibited
Skype visitation.

Aff. Eberhardt, Doc. #58-1 at 2.

Here, the undisputed evidence

reveals that the Lee County Jail has a no-Skype visitation policy due to numerous security
concerns including, but not limited to, the inability to determine whether the non-detained
Skype visitor is engaged in behavior that could potentially negative affect security at the
jail including passing of messages, planning escapes, gang, or other criminal activity, and
comprising the secure internet network due to an open connection outside firewalls. Id.
The impact of accommodating Skype access is a great cost not only to security, but costly

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as it is arguably precluded by the current technological systems in place at the jail. Aff.
Haycock, Doc. #58-2 at 1-2. Further, there are alternative means of visitation at the jail.
Sadly for Plaintiff, his daughter did not reside in Florida. The only way Plaintiff could have
visited with his daughter, who resided out of state, was through the internet. At this point
in time, advancements in technology do not help Plaintiff’s cause given the security risks
to the jail. Accordingly, Defendants are entitled to summary judgment on Plaintiff’s First
Amendment claim.
C. Certain damages requests are moot or barred
Because the Court determines the record presents no genuine dispute of material
fact on Plaintiff’s challenge to the Lee County Jail’s no-Skype visitation policy under the
First, Fifth, Eighth, and Fourteenth Amendments, the Court will not address Defendants’
remaining valid arguments that Plaintiff’s request for injunctive relief is moot based on his
subsequent conviction, transfer from the county jail, and detention within the Florida
Department of Corrections, or that his punitive damages request against the Lee County
Sheriff in his official capacity is barred.
ACCORDINGLY, it is hereby
ORDERED:
1. Defendants’ amended motion for summary judgment (Doc. #58) is GRANTED
for the reasons set forth herein.
2.

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

accordingly, and close this case.

DONE and ORDERED in Fort Myers, Florida on this 24th day of August, 2017.

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FTMP-1
Copies: All Parties of Record

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