Cowley v. GEO Group Inc. et al
Filing
37
OPINION AND ORDER dismissing all claims in 11 Amended Complaint under 28 U.S.C. § 1915(e)(2)(B)(ii). The Clerk shall enter judgment accordingly and close the case. Any appeal taken will be deemed frivolous and not taken in good faith. Signed by Judge John E. Steele on 12/12/2016. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSE COWLEY,
Plaintiff,
v.
Case No: 2:16-cv-67-FtM-29MRM
GEO GROUP INC., Operator of
GEO, MIKE CARROLL, Secretary
DCF, GEORGE ZOLEY, GEO Group
Inc.,
KRISTIN
KANNER,
Director SVP, DONALD SAWYER,
Dr., Facility Director FCCC,
CHRIS
CATRON,
Security
Director
FCCC,
WILLIAM
PRICE, Health Administrator
FCCC,
BRIAN
MASONY,
DCF
Attorney FCCC, and REBECCA
JACKSON,
Defendants.
OPINION AND ORDER
This matter comes before the Court upon an amended 42 U.S.C.
§ 1983 complaint filed by Plaintiff Jose Cowley (“Plaintiff”)
challenging the constitutionality of Florida’s civil commitment
statutes (Doc. 11, filed March 23, 2016).
Because Plaintiff was
granted leave proceed in forma pauperis (Doc. 10), the Court must
review
his
complaint
to
determine
whether
it
is
frivolous,
malicious, or fails to state a claim upon which relief may be
granted. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). Upon review, the
Court concludes that Plaintiff fails to present an actionable claim
and that dismissal of this case is required.
I.
Background and Procedural History
Plaintiff, proceeding pro se, is a civil detainee at the
Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida. 1
On
January 14, 2016, Plaintiff and eighteen other residents and former
residents of the FCCC filed a putative class action complaint in
Case No. 2:16-cv-35-FtM-99MRM challenging the constitutionality of
the Florida statutes governing the civil commitment of sexually
violent predators and raising a litany of additional individualspecific claims regarding the residents’ treatment at the FCCC
(Doc. 1).
This Court denied class certification and dismissed the
action without prejudice for failure to state a claim upon which
relief
could
be
granted
(Doc.
2).
However,
each
individual
plaintiff was permitted to file his own separate amended complaint.
Id.
II.
Complaint
Plaintiff filed the instant amended complaint on March 23,
2016 (Doc. 11).
Instead of writing his own complaint, specific
to his particular circumstances, Plaintiff appears to have cut and
1
Florida’s Involuntary Civil Commitment for Sexually Violent
Predators Act was enacted in Florida “to create a civil commitment
procedure for the long-term care and treatment of sexually violent
predators.” Fla. Stat. § 394.910, et seq. A person who is found,
after a hearing, to be a “sexually violent predator” is “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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pasted portions of the original “class-action” complaint filed on
January 16, 2016 in Case No. 2:16-cv-35-FtM-99MRM, along with
verbiage taken directly from a June 15, 2015 order issued by the
United States District Court of the District of Minnesota.
See
Karsjens v. Jesson, 109 F. Supp. 3d 1139 (D. Minn. 2015) (finding
portions of the Minnesota statutes governing civil commitment and
treatment of sex offenders to be unconstitutional on their face
and as applied).
Plaintiff’s
complaint
is
difficult
to
understand.
He
generally alleges that the Florida statutes governing the civil
commitment of sexually violent predators (“Florida SVP statutes”)
are unconstitutional and suggests ways they could be made better.
Plaintiff also makes vague and non-specific allegations regarding
the treatment provided to various “class members” at the FCCC and
avers that the named defendants are liable in their individual
capacities
for
adhering
to
the
unconstitutional
statutes.
However, most of the allegations appear to actually be directed
towards the Minnesota SVP statutes at issue in Karsjens—not the
Florida
SVP
statutes.
In
fact,
Plaintiff
merely
copies
and
paraphrases entire sections of the Minnesota district court’s
conclusions in Karsjens and raises each of the Karsjens court’s
stated conclusions as a claim in the instant case, notwithstanding
that the Minnesota statutes at issue are quite dissimilar to the
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Florida SVP statutes (Doc. 11 at 17-23); Karsjens, 109 F.Supp.3d
at 1173-74.
To wit, Plaintiff alleges that the Florida SVP statutes are
facially unconstitutional because: (1) they “indisputably [fail]
to require periodic risk assessments”; (2) they fail to provide a
“judicial bypass mechanism” to challenge his ongoing commitment;
(3) “the statutory discharge criteria is more stringent than the
statutory commitment criteria”; (4) they authorize “the burden to
petition for a reduction in custody to impermissibly shift from
the
State”
to
Plaintiff;
(5)
they
require
civilly
committed
individuals to show by clear and convincing evidence that a less
restrictive alternative is appropriate; and (6) they do not require
the defendants to take any affirmative action, such as petition
for a reduction in custody when they no longer satisfy the criteria
for continued commitment (Doc. 11 at 21).
Plaintiff also urges that the statutes are unconstitutional
as applied because: (7) Defendants Kanner, Zoley, Carroll, Sawyer,
and Jackson do not conduct periodic risk assessments of civilly
committed people at the FCCC; (8) the risk assessments that have
been performed since the opening of the FCCC have not all been
done
in
a
constitutional
manner;
(9)
Plaintiff
has
remained
confined at the FCCC even though he has completed treatment or
sufficiently
reduced
his
risk
of
reoffending;
(10)
discharge
procedures are not working properly at FCCC; (11) although the
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Florida SVP statutes expressly allow the referral of committed
individuals
to
less
restrictive
alternatives,
this
is
not
occurring in practice; (12) although treatment has been made
available,
the
treatment
program’s
structure
has
been
an
institutional failure and there is no meaningful relationship
between the treatment program and an end to indefinite detention;
(13) his due process rights were violated when the probable cause
hearing was held without the presence of him or his attorney; (14)
Plaintiff’s Equal Protection rights were violated “because his
liberty has been implicated as a result of Fla. Stat. § 394 Part
V being unconstitutional on its face because the defendants use
“the statute to punishing and/or detain ‘Male’ sex offenders after
completion of their prison sentence and not applying [sic] the
same standard to ‘Female’ sex offenders for their past and present
sexual violent offenses”; and (15) the defendants have violated
Plaintiff’s rights to access the courts by refusing to supply him
with postage stamps for mailing legal materials to court. (Doc. 11
at 21-23). 2
As relief, Plaintiff requests that “substantial changes be
made to Florida’s sex offender civil commitment scheme,” and he
2
The remainder of the complaint is confusing and repetitive
and appears to raise claims unrelated to Plaintiff. To the extent
Plaintiff intended to raise claims not addressed in this Order,
they are dismissed for failure to state a claim on which relief
can be granted and as violative of Rules 8 and 10 of the Federal
Rules of Civil Procedure.
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seeks two million dollars in punitive and compensatory damages
(Doc. 11 at 23-25).
II.
A
federal
district
Legal Standards
court
is
required
to
review
a
civil
complaint filed in forma pauperis and to dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e).
The mandatory language
of 28 U.S.C. § 1915 applies to all proceedings in forma pauperis.
Specifically, the section provides:
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court
shall dismiss the case at any time if the court
determines that-(A)
the allegation of poverty is
(B)
the action or appeal(i)
untrue; or
is frivolous or malicious;
(ii) fails to state a claim on which
relief may be granted; or
(iii)seeks monetary relief against
a defendant who is immune from
such relief.
28 U.S.C. § 1915(e)(2).
A
complaint
may
be
dismissed
as
frivolous
under
§
1915(e)(2)(B)(i) where it lacks an arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
A claim is
frivolous as a matter of law where, inter alia, the defendants are
immune from suit or the claim seeks to enforce a right that clearly
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does not exist. Id. at 327.
In addition, where an affirmative
defense would defeat a claim, it may be dismissed as frivolous.
Clark v. Georgia Pardons & Paroles Bd., 915 F.2d 636, 640 n.2 (11th
Cir. 1990).
The phrase “fails to state a claim upon which relief may be
granted” has the same meaning as the nearly identical phrase in
Federal Rule of Civil Procedure 12(b)(6). See Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997) (“The language of section
1915(e)(2)(B)(ii) tracks the language of Federal Rule of Civil
Procedure 12(b)(6), and we will apply Rule 12(b)(6) standards in
reviewing dismissals under section 1915(e)(2)(B)(ii).”). That is,
although
a
complaint
need
not
provide
detailed
factual
allegations, there “must be enough to raise a right to relief above
the speculative level”, and the complaint must contain enough facts
to state a claim that is “plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555–56 (2007).
In making the above
determinations, all factual allegations in the complaint must be
viewed as true. Brown v. Johnson, 387 F.3d 1344, 47 (11th Cir.
2004).
Moreover, the Court must read the plaintiff’s pro se
allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519
(1972).
Despite
complaint
is
Plaintiff’s
non-prisoner
subject
initial
to
status,
review
under
his
28
amended
U.S.C.
§
1915(e)(2)(B). See Troville v. Venz, 303 F.3d 1256, 1260 (11th
- 7 -
Cir. 2002) (recognizing that the district court did not err when
it dismissed a complaint filed by a civil detainee for failure to
state a claim under 28 U.S.C. § 1915(e)(2)(B)); Calhoun v. Stahl,
254 F.3d 845 (9th Cir. 2001) (determining that § 1915(e)(2)(B) is
not limited to prisoners, but applies to all persons proceeding in
forma pauperis).
IV.
Analysis
Plaintiff’s failure to describe in sufficient detail the
unconstitutional actions taken by the individual defendants makes
it impossible for the defendants to meaningfully reply to, or
otherwise defend against, the allegations against them.
Notably,
the Court addressed Plaintiff’s pleading failures in its earlier
order dismissing the putative class action claims in case No. 2:16cv-35-FtM-99MRM (Doc. 2), and Plaintiff was provided explicit
instructions on how to amend his individual complaint:
Plaintiff has submitted the type of pleading
the Federal Rules of Civil Procedure are
designed to prevent. Rule 8 requires a
complaint to “contain a short and plain
statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2);
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“[T]he pleading standard Rule 8 announces does
not require ‘detailed factual allegations,’ but
it demands more than an unadorned, thedefendant-unlawfully-harmed-me
accusation.”
(quoting Twombly, 550 U.S. at 555)). Rule 10
further provides, “[i]f doing so would promote
clarity, each claim founded on a separate
transaction or occurrence . . . must be stated
in a separate count[.]” Fed. R. Civ. P. 10(b).
Rules 8 and 10 work together and “‘require the
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pleader to present his claims discretely and
succinctly, so that his adversary can discern
what he is claiming and frame a responsive
pleading, the court can determine which facts
support which claims and whether the plaintiff
has stated any claims upon which relief can be
granted, and, at trial, the court can determine
that evidence which is relevant and that which
is not.’” Fikes v. City of Daphne, 79 F.3d 1079,
1082 (11th Cir. 1996) (citation omitted).
Here, the Complaint represents a confusing
mixture
of
allegations,
relevant
facts,
irrelevant
facts,
disjointed
narrative,
conclusory accusations, and legal argument.
(Doc. 1). Moreover, hundreds of pages of unlabeled documents are attached in an appendix.
The plaintiffs do not separate the causes of
action, making it difficult to decipher the
precise claims and against whom the claims are
brought. In fact, the plaintiffs do not even
name most of the defendants in the body of the
complaint, much less associate them with any
specific claim.
It is the type of pleading
that renders it impossible for a defendant to
answer and must be dismissed under Rule 8 for
that reason.
Finally, many of the claims raised in the
instant complaint appear to be unrelated to
each other.
For example, the plaintiffs’
claims that Florida’s civil commitment statutes
are unconstitutional are not related to claims
of inadequate medical care or fraud by FCCC
staff members.
Unrelated claims against
different defendants belong in different suits.
If claims are not related to the same basic
issue or incident, then each must be raised in
a separate suit to prevent confusion and to
ensure that the plaintiffs pay the required
filing fees. See George v. Smith, 507 F.3d 605,
607 (7th Cir. 2007) (“Unrelated claims against
different defendants belong in different suits,
not only to prevent the sort of morass that this
50–claim, 24–defendant suit produced but also
to ensure that [plaintiffs] pay the required
filing fees[.]”).
- 9 -
(Doc.
2
at
6-7).
Despite
clear
instructions
regarding
his
obligation to submit a cogent, decipherable complaint, Plaintiff
merely cut and pasted portions of the prior class-action complaint
to the amended complaint without complying with the order to amend
and without explaining exactly how each named defendant is alleged
to have violated his constitutional rights.
Although the Court
is required to liberally construe a pro se complaint, neither the
Court
nor
the
defendants
are
required
to
comb
through
an
incomprehensible pleading in order to cobble together a claim on
Plaintiff’s
behalf.
See
GJR
Investments,
Inc.
v.
County
of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998) (“[t]his leniency
does not give a court license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to
sustain an action[.]”) (citations omitted), overruled on other
grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th
Cir.
2010).
prolixity
of
Where
a
complaint
unrelated
and
amounts
vituperative
to
a
charges
“labyrinthian
that
def[y]
comprehension,” dismissal is appropriate. Prezzi v. Schelter, 469
F.2d 691, 692 (2d Cir. 1972); Baron v. Complete Mgt., Inc., 260 F.
App’x 399, 400 (2d Cir. 2008) (affirming dismissal of complaint
described
as
harassing”).
“virtually
This
is
unintelligible”
particularly
true
and
when,
“frivolous
as
here,
and
the
plaintiff was given an opportunity to amend his deficient pleading
and detailed instructions on how to do so. See Marantes v. Miami-
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Dade County, 649 F. App’x 665, 673 (11th Cir. 2016) (“[O]ur case
law does not require a district court to give a pro se litigant
multiple opportunities to amend.”); Friedlander v. Nims, 755 F.2d
810, 811–12 (11th Cir. 1985) (stating that dismissal with prejudice
was appropriate [for pro se litigants] where the district court
gave
“specific
and
repeated
warnings”
that
amendment
was
necessary), abrogated as to represented litigants by Wagner v.
Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
Although the amended complaint is subject to dismissal due to
Plaintiff’s
failure
to
adhere
to
the
Court’s
instructions
regarding amendment, the gravamen of the complaint, as well as
several other similar complaints filed in this district, is that
the Florida SVP statutes are constitutionally infirm. See, e.g.,
MDFL Case Nos. 2:16-cv-73-JES-MRM, 2:16-cv-75-SPC-CM, 2:16-cv-267UA-MRM, 2:16-cv-59-UA-MRM, 2:16-cv-62-JES-MRM, 2:16-cv-72-UA-CM,
and 2:16-cv-74-SPC-CM.
Plaintiff does not direct this court to
any specific portion of the Florida SVP statutes that he believes
is
unconstitutional.
Instead,
each
time
he
refers
to
the
statutes, he cites to Florida Statutes §§ 394-910-394.931, which
encompasses all of Part V of The Mental Health Chapter of the
Florida
Statutes
addressing
Sexually Violent Predators.”
“Involuntary
Civil
Commitment
of
Plaintiff’s failure to specifically
identify the portions of the Florida SVP statutes alleged to be
- 11 -
unconstitutional hampers this Court in evaluating his amended
complaint.
The allegations appear to be based upon the Karsjens court’s
findings that portions of the Minnesota SVP statues are facially
unconstitutional. Plaintiff seems to believe that the Florida SVP
statutes
are
either
identical
to,
or
similar
enough
to,
the
Minnesota SVP statutes that the Minnesota court’s analysis applies
equally
to
the
incorrect.
Florida
Therefore,
SVP
statutes.
without
commenting
This
on
assumption
the
is
Minnesota
district court’s conclusions regarding the Minnesota SVP statutes,
the Court will briefly address Plaintiff’s allegations regarding
the unconstitutionality of the Florida SVP statutes.
1.
Unlike the Minnesota SVP statutes at issue in Karsjens,
Florida Statute § 394.915 provides that a petitioner is
entitled to be present and to be represented by counsel
during his probable cause hearing
Plaintiff
argues
that
the
Florida
SVP
statutes
are
unconstitutional because they do not recognize the right of a
person deemed a sexually violent predator to be present and to be
represented by counsel at his probable cause hearing (Doc. 11 at
22).
Plaintiff asserts the following:
Plaintiff Jose Cowley, has been harmed and his
liberty has been infringed upon as a result of
Defendant's George Zoley, Kanner, Sawyer,
Jackson, and Catron actions under the color of
State and Federal law. For example, prior to
a prisoner’s release from incarceration who
has been convicted of a sex offense, pursuant
to sections §§ 394.910-394.931 Fla. Stat.[,]
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the State Attorney office may file a petition
to declare an individual a sexually violent
predator and petition the court for an Ex
Parte petition to determine probable cause
exist to believe an individual is too
dangerous to be release [sic] after completion
of their prison sentence without due process
thus, hearing is conducted without the present
[sic] of the accused nor their attorney, that
resulted in the denial of the accused[‘s] due
process rights to confront his accuser or
contest the allegation against him.
(Doc. 11 at 7).
Although this statement appears to accurately
describe Minnesota Statute § 253D.07 as it relates to a probable
cause hearing, 3 it is untrue as it relates to the Florida SVP
statutes.
In Florida, a person suspected of being a sexually
violent predator has the right to appear in person at the probable
cause hearing and to be represented by counsel. See Fla. Stat. §§
394.915(2) and (2)(a) (stating that the person against whom the
probable cause hearing is directed “shall be provided with notice
of, and an opportunity to appear in person at, an adversarial
hearing” and has the right to be represented by counsel at the
hearing).
3
Under the Minnesota SVP statute, a county attorney, upon a
determination of good cause, may petition a court “that a proposed
respondent is a sexually dangerous person or a person with a sexual
psychopathic personality[.]” Minn. Stat. § 253D.07 (1) and (2).
Thereafter, if the court finds by clear and convincing evidence
that the respondent is a sexually dangerous person or a person
with a sexual psychopathic personality, the court “shall order
commitment for an indeterminate period of time[.]” Unlike the
Florida SVP statute, no provision is made for the presence of the
respondent or his attorney at these hearings. See Minn. Stat. §§
253D.07(2) and (3).
- 13 -
Accordingly,
any
claims
based
upon
allegations
that
the
probable cause hearings as described in the Florida SVP statutes
are unconstitutional (because they are conducted ex parte and
without the benefit of counsel) are dismissed for failure to state
a claim upon which relief may be granted.
Likewise, any claims
against the individual defendants based upon their adherence to
the Florida SVP statutes as they relate to the probable cause
hearing are dismissed for failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2).
2.
The Florida SVP statutes require periodic assessments of
a civil detainee’s mental condition and provide for
judicial review of the assessments at the detainee’s
request
Plaintiff
unconstitutional
urges
that
because
the
they
do
Florida
not
SVP
statutes
are
require
periodic
risk
assessments of a civil detainee’s mental condition (Doc. 11 at
21).
Also, presumably relying on Karsjens, Plaintiff urges that
the Florida SVP statutes “contain[] no judicial bypass mechanism
and, as such, there is no way for Plaintiff, Jose Cowley, to timely
and reasonably access the judicial process outside of the statutory
discharge process to challenge his ongoing commitment.” Id.
Unlike the Minnesota SVP statutes at issue in Karsjens, the
Florida SVP statutes provide for periodic assessments of a civil
detainee’s mental condition and for judicial review at the civil
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detainee’s request at any time after commitment.
Specifically,
Florida Statute § 394.918 provides:
A person committed under this part shall have
an examination of his or her mental condition
once every year or more frequently at the
court’s discretion. The person may retain or,
if the person is indigent and so requests, the
court may appoint, a qualified professional to
examine the person. Such a professional shall
have access to all records concerning the
person. The results of the examination shall
be provided to the court that committed the
person under this part. Upon receipt of the
report, the court shall conduct a review of
the person’s status.
The department shall provide the person with
annual written notice of the person’s right to
petition the court for release over the
objection of the director of the facility
where the person is housed. The notice must
contain a waiver of rights. The director of
the facility shall forward the notice and
waiver form to the court.
The court shall hold a limited hearing to
determine whether there is probable cause to
believe that the person’s condition has so
changed that it is safe for the person to be
at large and that the person will not engage
in acts of sexual violence if discharged. The
person has the right to be represented by
counsel at the probable cause hearing and the
right to be present. Both the petitioner and
the respondent may present evidence that the
court may weigh and consider. If the court
determines that there is probable cause to
believe it is safe to release the person, the
court shall set a trial before the court on
the issue.
At the trial before the court, the person is
entitled to be present and is entitled to the
benefit of all constitutional protections
afforded the person at the initial trial,
except for the right to a jury. The state
- 15 -
attorney shall represent the state and has the
right
to
have
the
person
examined
by
professionals chosen by the state. At the
hearing, the state bears the burden of
proving, by clear and convincing evidence,
that the person’s mental condition remains
such that it is not safe for the person to be
at large and that, if released, the person is
likely to engage in acts of sexual violence.
Fla. Stat. §§ 394.918(1)-(4) (emphases added).
The Florida SVP
statutes further provide:
A person is not prohibited from filing a
petition for discharge at any time after
commitment under this part. However, if the
person has previously filed such a petition
without the approval of the secretary or the
secretary’s designee and the court determined
that the petition was without merit, a
subsequent petition shall be denied unless the
petition contains facts upon which a court
could find that the person’s condition has so
changed that a probable cause hearing is
warranted.
Fla. Stat. § 394.920 (emphasis added).
Accordingly, unlike the
Minnesota statutes at issue in Karsjens, the Florida SVP statutes
provide for both mandatory periodic reviews of a civil detainee’s
mental condition and allow for more frequent reviews at the court’s
discretion. Id.
The Florida SVP statutes also allow a detainee
to petition the court for release over the objection of the
facility’s director and at any time thereafter. Id.
Accordingly, the Florida statutes do not suffer from the same
defects as the Minnesota statutes at issue in Karsjens and any
claims based upon allegations that the Florida SVP statutes are
- 16 -
unconstitutional
because
they
do
not
provide
for
period
assessments of a detainee’s mental condition or a “judicial bypass mechanism” are due to be dismissed for failure to state a
claim upon which relief may be granted.
against
individual
defendants
based
upon
Likewise, any claims
their
adherence
to
Florida Statute § 394.920 are also dismissed for failure to state
a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2).
3.
The statutory discharge criteria under the Florida SVP
statutes comport with due process
Plaintiff
asserts
that
the
Florida
SVP
statutes
are
unconstitutional because the statutory discharge criteria for a
civilly committed person are more stringent than the statutory
commitment criteria (Doc. 11 at 21).
Specifically, he claims:
To be discharged from FCCC, Fla. Stat. §
394.910-394.931 requires that Plaintiff, Jose
Cowley, “no longer be dangerous” as opposed to
being “highly likely to reoffend,” which is
the initial commitment standard however, the
statute does not state the same for noncommitted
residents
who
are
treated
differently. Although Plaintiff, Jose Cowley,
may be initially committed to FCCC on no proof
of being “highly likely to engage in harmful
sexual conduct” in the future, Jose Cowley is
prohibited from being discharged unless he
demonstrates, among other things, that he is
no longer dangerous.
Because the statute
renders discharge of Jose Cowley, from the
FCCC more onerous than admission to Fla. Stat.
§§ 394.910-394.931 it is not narrowly tailored
and
results
in
a
punitive
effect
and
application contrary to the purpose of civil
commitment.
- 17 -
(Doc. 11 at 10-11) (emphases in original).
Again, the statement
is simply untrue and appears to be taken (albeit incompletely)
from Karsjens. See Karsjens, 109 F. Supp.3d at 1169. 4
Under the Florida SVP statutes, a person is subject to civil
commitment as a sexually violent predator if a court or a unanimous
jury finds, by clear and convincing evidence, that the person is
a sexually violent predator. Fla. Stat. § 394.917.
A “sexually
violent predator” is any person who has been convicted of a
sexually violent offense as defined by Florida Statute § 394.912(9)
and “[s]uffers from a mental abnormality or personality disorder
that makes the person likely to engage in acts of sexual violence
if not confined in a secure facility for long-term control, care,
and treatment.” Fla. Stat. § 394.912(10).
After commitment, the
civil detainee is entitled to a release trial when there is
probable cause to believe that his condition is “so changed that
it is safe for the person to be at large and that the person will
not engage in acts of sexual violence if discharged.” Fla. Stat.
§ 394.918(3).
The State then bears the burden at trial of proving
by
convincing
clear
and
evidence,
“that
the
person’s
mental
condition remains such that it is not safe for the person to be at
large and that, if released, the person is likely to engage in
4
The Karsjens court concluded that the Minnesota SVP statutes
were unconstitutional because the statutes “render[] discharge
from the MSOP more onerous than admission to it[.]” Karsjens, 109
F. Supp. 3d at 1169.
- 18 -
acts of sexual violence.” Fla. Stat. § 394.918(4) (emphasis added).
These criteria are constitutionally sound.
The United States Supreme Court has clarified that the purpose
of civil commitment “is to treat the individual’s mental illness
and protect him and society from his potential dangerousness.”
Jones v. United States, 463 U.S. 354, 368 (1983).
A state may
confine a mentally ill person if it shows that the individual is
both mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71,
80 (1992).
Accordingly, it is axiomatic that a civilly committed
person is entitled to release when he has recovered his sanity or
is no longer dangerous. O’Conner v. Donaldson, 422 U.S. 563, 575
(1975)
(noting
that
an
involuntary
commitment
cannot
constitutionally continue after the basis for it no longer exists).
Unlike the Minnesota SVP statutes at issue in Karsjens, 5 the
Florida SVP statutes require the state to prove that a civil
detainee is both still mentally ill and poses a danger to society
if released; otherwise, the detainee is entitled to release. Fla.
Stat. § 394.918(4).
Accordingly, the Florida SVP statutes comport
with the due process as it relates to release criteria. See Kansas
5
Notably, under the Minnesota statute, a person who is no
longer mentally ill, but still a danger to the public could not be
released. See Minn. Stat. § 253D.31.
This appears to run afoul
of the Supreme Court’s statements in Foucha and Hendricks. See
Foucha, 504 U.S. at 80 and Hendricks, 521 U.S. at 358 (both holding
that proof of dangerousness must be coupled with a finding of
mental illness to justify continued civil detention).
- 19 -
v. Hendricks, 521 U.S. 346, 358 (1997) (“We have sustained civil
commitment statutes when they have coupled proof of dangerousness
with the proof of some additional factor such as mental illness or
mental abnormality”) (internal quotations omitted).
Any
claims
predicated
upon
the
alleged
facial
unconstitutionality of the Florida SVP statutes as they relate to
release criteria are dismissed for failure to state a claim upon
which relief may be granted.
Likewise, the claims against the
individual defendants based upon their adherence to the Florida
SVP statutes as they relate to release criteria are dismissed for
failure to state a claim upon which relief may be granted. 28
U.S.C. § 1915(e)(2).
4.
The Florida SVP statutes do not impermissibly shift the
burden of proof to the detainee to prove that he is
entitled to release
Plaintiff
argues
that
the
Florida
SVP
statutes
are
not
narrowly tailored because “the statute impermissibly places the
burden on him and non-committed individuals to demonstrate that
they should be placed in a less restrictive setting[.]” (Doc. 11
at 14). 6
Under the Minnesota SVP statutes, “[t]he petitioning
6
Plaintiff admits that the Florida SVP statutes do not
contemplate any less restrictive settings than commitment to the
FCCC for people who are deemed to be sexually violent predators,
but urges that the conditional release and probation provisions of
the Florida criminal statutes should apply to the civilly committed
(Doc. 11 at 14). However, they do not. Thus, Plaintiff makes the
illogical assertion that a non-existent portion of the Florida SVP
statutes is unconstitutional.
- 20 -
party seeking discharge or provisional discharge bears the burden
of going forward with the evidence, which means presenting a prima
facie case with competent evidence to show that the person is
entitled to the requested relief.” Minn. Stat. § 253.28, subd.
2(d).
In
Karsjens,
unconstitutional
the
because
court
“the
found
burden
this
of
provision
to
demonstrating
be
the
justification for continued confinement by clear and convincing
evidence should remain on the state at all times.” 109 F. Supp. 3d
at 1169.
To the extent Plaintiff asserts that the Florida SVP statutes
also place the burden on the detainee to show his entitlement to
release, this is simply not true.
Under the Florida SVP statutes,
“the state bears the burden of proving, by clear and convincing
evidence, that the [detainee’s] mental condition remains such that
it is not safe for the person to be at large and that, if released,
the person is likely to engage in acts of sexual violence.” Fla.
Stat. § 394.918(4) (emphasis added).
Accordingly,
any
claims
challenging
the
facial
constitutionality of the Florida SVP statutes as they relate to
the detainees’ burden of proof are dismissed for failure to state
a claim upon which relief may be granted.
Likewise, the claims
against the individual defendants based upon their adherence to
the Florida SVP statutes as they relate to a detainee’s burden of
- 21 -
proof are dismissed for failure to state a claim upon which relief
may be granted.
5.
28 U.S.C. § 1915(e)(2).
The Florida SVP statutes require the Secretary of the
Department of Children and Families or the Secretary’s
designee to authorize a detainee to petition the court
for release if it is determined that the person is not
likely to commit acts of sexual violence if discharged
Plaintiff asserts that the Florida SVP statutes “do[] not
require the Defendants to take affirmative action, such as petition
for a reduction in custody on behalf of Jose Cowley and individuals
who no longer satisfy the criteria for continued commitment.” (Doc.
11 at 16-17).
This claim appears to be predicated on Karsjens,
which determined that the Minnesota SVP statutes’ “failure to
require the state to petition for reduction of custody, on behalf
of individuals who no longer satisfy the criteria for continued
commitment”
was
a
“fatal
flaw”
rendering
the
statutes
unconstitutional. 109 F. Supp. 3d at 1169-70.
However, in contrast to the Minnesota SVP statutes, the
Florida SVP statutes provide that:
If the secretary or the secretary’s designee
at any time determines that the person is not
likely to commit acts of sexual violence if
discharged, the secretary or the secretary’s
designee shall authorize the person to
petition the court for release. The petition
shall be served upon the court and the state
attorney. The court, upon receipt of such a
petition, shall order a trial before the court
within 30 days, unless continued for good
cause.
- 22 -
Fla. Stat. § 394.919(1) (emphasis added).
By its clear terms, §
394.919(1) requires the state to take affirmative action, in the
form of authorizing the detainee to petition the court for release,
if it is determined that a detainee may be entitled to release.
Therefore, the Florida SVP statutes do not suffer from the same
defect at issue in Karsjens.
Accordingly,
any
claim
challenging
the
facial
constitutionality of the Florida SVP statutes as they relate to
the defendants’ requirement to take affirmative action on behalf
of individuals who no longer satisfy the criteria for continued
commitment are dismissed for failure to state a claim.
28 U.S.C.
§ 1915(e)(2).
6.
Plaintiff has not stated an Equal Protection claim
The Fourteenth Amendment to the United States Constitution
provides that “[n]o State shall . . . deny to any person within
its jurisdiction the equal protection of the laws.”
The Supreme
Court has expressed that there is “a strong presumption that gender
classifications are invalid” under the Equal Protection Clause.
J.E.B.
v.
Alabama
ex
rel.
T.B.,
511
U.S.
127,
152
(1994).
Plaintiff asserts that his Fourteenth Amendment equal protection
rights have been violated by the defendants because:
[H]is liberty has been implicated as a result
of
Fla.
Stat.
§
394
Part
V.
being
unconstitutional on its face as the result of
Defendants, Kristin Kanner, George Zoley, Mike
Carroll, Dr. Donald Sawyer, and Dr. Rebecca
- 23 -
Jackson, and State Attorney utilizing the
statute to punishing and/or detain “Male” sex
offenders after completion of their prison
sentence and not applying the same standard to
“Female” sex offender for their past and
present sexual violent offenses.
(Doc. 11 at 22).
Accordingly, Plaintiff appears to allege that
Florida’s SVP statutes do not apply the same standards to female
sex offenders who commit the same types of crimes as male sex
offenders. Id.
Plaintiff provides no factual assertions to support this
conclusory claim, and his legal conclusion, in terms of the wording
of the statute, is false.
Florida’s SVP statutes do not target
“men,” but rather “sexually violent predators.”
394.912(10).
Fla. Stat. §
Sexually violent predators are not a protected class
under the Fourteenth Amendment’s Equal Protection Clause.
When a
statutory scheme does not specifically classify based on a suspect
class (such as persons of a certain race, alienage, religion,
gender,
or
national
origin),
“uneven
effects
upon”
suspected
classes “are ordinarily of no constitutional concern.” Personnel
Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 272 (1979).
The
Fourteenth Amendment “guarantees equal laws, not equal results.”
Id. at 273.
Still, “when a neutral law has a disparate impact” on a
suspect class “an unconstitutional purpose may still be at work,”
and the Court does not doubt that Florida’s SVP statutes have
- 24 -
almost
exclusively
affected
men.
Feeney,
442
U.S.
at
273.
However, in order to state a viable disparate impact claim, a
claimant
must
prove
that
the
intention
of
the
law
was
to
discriminate against a suspect class. M.L.B. v. S.L.J., 519 U.S.
102, 135 (1996).
If the impact of a law “could not be plausibly
explained on a neutral ground, impact itself would signal that the
real classification made by the law was in fact not neutral.”
Feeney, 442 U.S. at 275.
In this case, the legislature’s intent in creating the Florida
SVP statutes was to “create a civil commitment procedure for the
long-term care and treatment of sexually violent predators.” Fla.
Stat. § 394.910.
The Florida SVP statutes’ primary purpose is to
protect the public and treat sexually violent predators. Id.
These purposes are entirely plausible and rationally related to a
legitimate
state
interest.
Any
assertion
that
Florida’s
SVP
statutes target the male gender with respect to anything other
than the proclivity of some males to be sexually violent predators
is untenable.
If a woman is determined to be a sexually violent
predator, the clear terms of the Florida SVP statutes would apply
to her as well. Id.
To imply that the Florida Legislature passed
the statutes in order to fulfill a discriminatory animus it harbors
against men is speculative and implausible.
the
gender
Plaintiff’s
neutral
complaint
language
rests
on
of
a
- 25 -
the
Furthermore, given
Florida
legal
SVP
conclusion,
statutes,
i.e.
the
statutes (and defendants) “do not apply the same standard[s] to
female sex offenders,” but he provides no facts in support thereof.
Therefore, Plaintiff has not stated an equal protection claim, and
his equal protection claim is dismissed for failure to state a
claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2).
7.
Plaintiff has not stated a claim with regard to postage
stamps
Plaintiff makes the conclusory assertion that “Defendants,
Kristin Kanner, George Zoley, Mike Carroll, Dr. Donald Sawyer, and
Dr. Rebecca Jackson, FCCC has [sic] violated Plaintiff, Jose
Cowley’s indigent Residents/Detainee access to court by refusing
to
supply
them
[sic]
with
postage
materials to court.” (Doc. 11 at 23).
for
the
mailing
of
legal
In his request for relief,
he seeks an order for the FCCC to supply all indigent civil
detainees with postage to mail legal materials to court. Id. at
25.
Interference
with
a
detainee’s
access
to
the
court
constitutes a First Amendment violation. Lewis v. Casey, 518 U.S.
343 (1996); Bounds v. Smith, 430 U.S. 817 (1977); Chandler v.
Baird, 926 F.2d 1057 (11th Cir. 1991).
The Supreme Court in Bounds
made clear that institutions must ensure that inmates have “a
reasonably adequate opportunity to present claimed violations of
fundamental constitutional rights to the courts.” Id. at 825.
Additionally, the Supreme Court explained that a plaintiff who
- 26 -
alleges a denial of access to court must show how the interference
caused
the
litigation.
plaintiff
Lewis,
harm
518
or
U.S.
prejudice
at
with
349-351.
respect
“[A]n
to
inmate
the
cannot
establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in some
theoretical sense.” Id. at 351.
Indeed, “the injury requirement
is not satisfied by just any type of frustrated legal claim.” Id.
at 354.
access
Specifically, a plaintiff must show that the denial of
to
court
prejudiced
him
in
a
criminal
appeal,
post-
conviction matter, or in a civil rights action under 42 U.S.C. §
1983 “to vindicate ‘basic constitutional rights.’” Id. (quoting
Wolff v. McDonnell, 418 U.S. 539, 579 (1974)).
Plaintiff
makes
no
factual
allegations
interference with an access to court claim.
supporting
an
Nor has he alleged
facts explaining how any named defendant’s interference with his
access
to
the
courts
prejudiced
him
in
any
legal
matter.
Accordingly, any First Amendment access claim is dismissed for
failure to state a claim on which relief may be granted. 28 U.S.C.
§ 1915(e)(2).
V.
Plaintiff’s
amended
Conclusion
complaint
(Doc.
11)
is
subject
to
dismissal due to his failure to comply with this Court’s order
regarding amendment.
In addition, Plaintiff’s claims related to
the constitutionality of the Florida SVP statutes are subject to
- 27 -
dismissal for failure to state a claim on which relief can be
granted.
Accordingly, it is hereby ORDERED:
1.
All claims in the 42 U.S.C. § 1983 amended complaint
filed by Jose Cowley (Doc. 11) are dismissed under 28 U.S.C. §
1915(e)(2)(B)(ii).
2.
The Clerk of Court is directed to terminate any pending
motions, close this case, and enter judgment accordingly.
3.
Any appeal taken from this Order will be deemed frivolous
and not taken in good faith.
DONE and ORDERED in Fort Myers, Florida on this
of December, 2016.
SA: OrlP-4
Copies: All Parties of Record
- 28 -
12th
day
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