Gering v. GEO Group Inc. et al

Filing 26

ORDER OF DISMISSAL dismissing all claims in 1 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 from this Order will be deemed frivolous and not taken in good faith. Signed by Judge John E. Steele on 3/1/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT GERING,
Plaintiff,
v.

Case No: 2:16-cv-267-FtM-99MRM

GEO
GROUP
INC.,
MIKE
CARROLL,
GEORGE
ZOLEY,
KRISTIN
KANNER,
DONALD
SAWYER,
REBBECA
JACKSON,
CHRIS CATRON, WILLIAM PRICE,
and BRIAN MASONY,
Defendants.
ORDER OF DISMISSAL
This matter comes before the Court upon a 42 U.S.C. § 1983
complaint

filed

by

Plaintiff

Robert

Gering

(“Plaintiff”),

challenging the constitutionality of Florida’s civil commitment
statutes for sexually violent predators (Doc. 1, filed April 8,
2016).

Plaintiff, proceeding pro se, is a civil detainee at the

Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida. 1

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.

Because Plaintiff was granted leave to proceed in forma
pauperis (Doc. 8), 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 Complaint

On January 14, 2016, eighteen 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.
This Court denied class certification and dismissed the action
without prejudice for failure to state a claim upon which relief
could be granted. See Case No. 2:16-cv-35-FtM-99MRM at docket entry
2.

However, each individual plaintiff was permitted to file his

own separate amended complaint. Id.
Plaintiff filed the instant action on April 8, 2016 (Doc. 1).
Although Plaintiff was not one of the original plaintiffs in case
number 2:16-cv-35-FtM-99MRM, he appears to have cut and pasted
portions of the complaint filed in that case, along with verbiage
taken directly from a June 15, 2015 order issued by the United

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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), reversed and remanded by Karsjens v. Piper, 845 F.3d 394
(8th Cir. 2017) (Karsjens II) (reversing the district court’s
finding that the Minnesota SVP statutes were unconstitutional).
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

to

make

them

better.

Plaintiff also avers that the named defendants are liable in their
individual
statutes.

capacities

for

adhering

to

the

unconstitutional

Plaintiff claims that mental health treatment at the

FCCC is ineffective and that he and other detainees have stopped
participating in treatment “because they know [it is] futile and
they would never be released because of treatment.” (Doc. 1 at
12).
Plaintiff also claims that the GEO Group, Inc., the company
that operates the FCCC, is operated as a real estate investment
trust, and as a result, is required to return ninety percent of
its profits back to its investors (Doc. 1 at 13).

He argues that

$198 million dollars was returned to investors last year instead
of being used to operate the FCCC.

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Many

of

Plaintiff’s

allegations

appear

to

actually

be

directed towards the Minnesota SVP statutes at issue in Karsjens—
not the Florida SVP statutes.

In fact, Plaintiff 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 dissimilar to the Florida SVP statutes (Doc.
1 at 15-17); 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” of the detainees; (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 “when
the less restrictive alternatives are barely being used”; 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. 1 at 15-16).
Plaintiff also urges that the statutes are unconstitutional
as applied because: (7) Defendants Kanner, Zoley, Carroll, Sawyer,

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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
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 trial court at
his commitment trial sent his jury home without allowing them to
deliberate; (14) Plaintiff’s Equal Protection rights were violated
“because his liberty has been infringed upon 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

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by refusing to supply him with postage stamps for mailing legal
materials to court. (Doc. 1 at 16-17).
As relief, Plaintiff requests that “substantial changes be
made to Florida’s sex offender civil commitment scheme,” and asks
the Court to dismantle the GEO Group’s real estate investment trust
(Doc. 1 at 17-18).

He also seeks two million dollars in damages.

Id. at 21.
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).

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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
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

- 7 -

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
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).
III. Analysis
In order to state a claim under § 1983, a plaintiff must show
“(1) a violation of a constitutional right, and (2) that the
alleged violation was committed by a person acting under color of
state law.” Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005).
Section 1983 does not permit recovery under a theory of respondeat
superior or vicarious liability. Keating v. City of Miami, 598
F.3d 753, 762 (11th Cir. 2010).

Therefore, a defendant may be

held liable under § 1983 only if he personally was responsible for
the constitutional violation. Id. (explaining that a supervisor is
liable under § 1983 only if he actively participated in the
constitutional violation, or if there was a causal connection
between his conduct and the alleged constitutional violation).

- 8 -

a.

Any claims based upon the fact that the FCCC is run by
a private company are dismissed for failure to state a
claim upon which relief may be granted

Plaintiff asserts that:
The GEO GROUP, INC. does not, nor does any of
its subsidiaries, make or manufacture a
product. Nor do they provide a service other
than the warehousing of human beings for
various government agencies in the State of
Florida and elsewhere. Meaning, the taxpayer
money that the State of Florida pays GEO to
warehouse, feed, clothe, provide adequate
medical care and mental health services, as
well as provide meaningful rehabilitation,
education
and
vocational
programs;
$198
million dollars of that money is being skimmed
to pay shareholders in its Real Estate
Investment Trust scheme.
The human beings
under the care of the GEO GROUP INC., have
effectively become a commodity to be bought,
sold, and traded for profit.
It is in GEO
GROUP’s compelling interest to keep the beds
full at FCCC for the enrichment of a few, at
the cost of misery to so many others. GEO’s
REIT scheme skirts the fringes of human
trafficking.
(Doc. 1 at 14).

Plaintiff’s argument that his commitment to the

FCCC is unconstitutional merely because the facility is privately
operated by a for-profit real estate investment trust does not
state a 42 U.S.C. § 1983 claim.
Plaintiff has not demonstrated a legally protected interest
in having the FCCC run by the state instead of a private company.
Indeed, in the prison context, it is well-settled that he does not
have such interest.

See Pischke v. Litscher, 178 F.3d 497, 500

(7th Cir. 1999) (“Nor are we pointed to or can think of any other

- 9 -

provision

of

the

Constitution

that

might

be

violated

by

the

decision of a state to confine a convicted prisoner in a prison
owned by a private firm rather than by a government.”); Rael v.
Williams, 223 F.3d 1153 (10th Cir. 2000) (that an inmate must
reside in a private prison does not raise a federal constitutional
claim); Patscheck v. Snedeker, 135 F. App’x 188, 190 (10th Cir.
2005) (“A prisoner has a legally protected interest in the conduct
of his keeper, but not in the keeper’s identity.”).
Plaintiff’s claims based upon the for-profit nature of GEO
Group, Inc. are dismissed for failure to state a claim upon which
relief may be granted.
b.

Claims of constitutional error during Plaintiff’s civil
commitment trial should be raised in a petition for writ
of habeas corpus

As to Plaintiff’s allegation that constitutional errors were
committed by the trial judge at his civil commitment trial when
the judge issued a directed verdict instead of allowing a jury to
consider his case (Doc. 1 at 6), Plaintiff does not explain how
any of the named defendants were responsible.

Accordingly, the

claim is dismissed for failure to state a claim upon which relief
can be granted.
Moreover, this claim does not address the conditions of
Plaintiff’s

confinement;

rather,

it

attacks

the

fact

of

confinement and should be raised in a habeas corpus action, after

- 10 -

Plaintiff exhausts his state court remedies. 2

See Duncan v.

Walker, 533 U.S. 167, 176 (2001) (explaining that “federal habeas
corpus review may be available to challenge the legality of a state
court order of civil commitment.”); Preiser v. Rodriguez, 411 U.S.
475, 490 (1973) (“congress has determined that habeas corpus is
the appropriate remedy for state prisoners attacking the validity
of the fact or length of their confinement, and that specific
determination must override the general terms of § 1983.”).
c.

Plaintiff’s
claims
regarding
the
constitutional
infirmity of the Florida SVP statutes are dismissed for
failure to state a claim on which relief can be granted

The gravamen of Plaintiff’s complaint, as well as several
other similar complaints filed in this district by other residents
of the FCCC, is that the Florida SVP statutes are constitutionally
infirm. See, e.g., MDFL Case Nos. 2:16-cv-73-JES-MRM, 2:16-cv-75SPC-CM,

2:16-cv-267-UA-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 he believes to be unconstitutional.
Instead, each time he refers to the statutes, he cites to Florida
Statutes §§ 394-910-394.931, which encompass all of Part V of The
Mental

2

Health

Chapter

If Plaintiff
appeal to the state
(“The determination
may be appealed.”);

of

the

Florida

Statutes

addressing

believes a state judgment is invalid, he may
appellate court. See Fla. Stat. § 394.917(1)
that a person is a sexually violent predator
Fla. Rule. App. P. 9.030(b)(1)(A).

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“Involuntary

Civil

Commitment

of

Sexually

Violent

Predators.”

Plaintiff’s failure to specifically identify the portions of the
Florida SVP statutes alleged to be unconstitutional hinders this
Court in evaluating his amended complaint.
Most of Plaintiff’s allegations appear to be based upon the
Karsjens district 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
district court’s analysis applies equally to the Florida SVP
statutes.

This assumption is incorrect.

Moreover, the Karsjens

district court was recently reversed by the Eighth Circuit Court
of Appeals with a finding that the Minnesota SVP statutes are not
unconstitutional. Karsjens II, 845 F.3d at 411.
Without commenting on the Minnesota district court’s or the
Eighth

Circuit

Court

of

Appeal’s

conclusions

regarding

the

Minnesota SVP statutes, the Court will briefly address Plaintiff’s
allegations regarding the allegedly flawed Florida SVP statutes.
1.

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. 1 at 15).

- 12 -

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, Robert Gering, to timely
and reasonably access the judicial process outside of the statutory
discharge process to challenge his ongoing commitment.” Id.

These

statements are incorrect.
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
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

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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
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.

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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.
Therefore, 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
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.

Likewise, any as-applied

claims against individual defendants based upon 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).
2.

Plaintiff

The statutory discharge criteria under the Florida
SVP statutes comport with due process
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. 1 at 16).

- 15 -

Again, the statement is

simply untrue and appears to be taken (albeit incompletely) from
Karsjens. See Karsjens, 109 F. Supp.3d at 1169. 3
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

3

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.

- 16 -

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, 4 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

4

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); compare
Karsjens II, 845 F.3d at 411 (finding no constitutional infirmity
in the Minnesota SVP statute).

- 17 -

with the due process as it relates to release criteria. See Kansas
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 as-applied 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).
3.

Plaintiff

The Florida SVP statutes do not impermissibly shift
the burden of proof to the detainee to prove that
he is entitled to release
argues

that

the

Florida

SVP

statutes

are

not

narrowly tailored because the statute impermissibly places the
burden on committed individuals to demonstrate that they should be
placed in a less restrictive setting (Doc. 1 at 16). 5

Under the

Minnesota SVP statutes, “[t]he petitioning party seeking discharge

5

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.
Thus, Plaintiff
makes the illogical assertion that a non-existent portion of the
Florida SVP statutes is unconstitutional.

- 18 -

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,

the court found this provision to be unconstitutional because “the
burden

of

demonstrating

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, he is wrong.

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.
claims

against

adherence

to

the

the

individual

Florida

SVP

Likewise, the as-applied

defendants
statutes

as

based
they

upon
relate

their
to

a

detainee’s burden of proof are dismissed for failure to state a
claim upon which relief may be granted.

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28 U.S.C. § 1915(e)(2).

4.

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 individuals who no longer
satisfy the criteria for continued commitment.” (Doc. 1 at 16).
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.
Fla. Stat. § 394.919(1) (emphasis added).

By its clear terms, §

394.919(1) requires the state to take affirmative action, in the

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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
alleged 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 upon which
relief may be granted.
5.

28 U.S.C. § 1915(e)(2).

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
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

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“Female” sex offender for their
present sexual violent offenses.
(Doc. 1 at 17).

past

and

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
almost

exclusively

affected

men.

Feeney,

442

U.S.

at

273.

However, in order to state a viable disparate impact claim, a

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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

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.

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Therefore, Plaintiff has not stated an equal protection claim, and
his claim is dismissed for failure to state a claim upon which
relief may be granted. 28 U.S.C. § 1915(e)(2).
6.

Plaintiff has not stated a claim with regard to the
FCCC’s provision of postage

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, Robert
Gering’s indigent Residents/Detainee access to court by refusing
to supply him with postage for the mailing of legal materials to
court.” (Doc. 1 at 17).
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
alleges a denial of access to court must show how the interference
caused

the

litigation.

plaintiff
Lewis,

harm

518

or

U.S.

prejudice

at

349-351.

with

respect

“[A]n

inmate

to

the

cannot

establish relevant actual injury simply by establishing that his
prison’s law library or legal assistance program is subpar in some

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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).
IV.

Conclusion

Each of Plaintiff’s claims is subject to dismissal under 28
U.S.C. § 1915(e)(2) for failure to state a claim upon which relief
may be granted.
Accordingly, it is hereby ORDERED:
1.

All claims in the 42 U.S.C. § 1983 amended complaint

filed by Robert Gering (Doc. 1) 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.

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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 March, 2017.

SA: OrlP-4
Copies: Robert Gering
Counsel of Record

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1st

day