Despart v. State of Florida
Filing
9
OPINION AND ORDER dismissing Amended Complaint pursuant to 28 U.S.C. § 1915(e) (2)(B)(i) and (ii). The Clerk shall enter judgment accordingly and close the file. Signed by Judge John E. Steele on 12/18/2018. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS G. DESPART,
Plaintiff,
v.
Case No:
2:18-cv-351-FtM-29CM
STATE OF FLORIDA,
Defendant.
OPINION AND ORDER
Plaintiff Thomas G. Despart, who is involuntarily civilly
confined to the Florida Civil Commitment Center, is proceeding in
this action on his pro se Amended Complaint (Doc. #5, “Amended
Complaint”).
Despart seeks to proceed in forma pauperis on his
Amended Complaint (Doc. #2).
As more fully discussed below, the
Court dismisses the Amended Complaint.
Background
The Amended Complaint names the State of Florida as the sole
defendant and alleges that “Part V of the Florida Mental Health
Act 1 is unconstitutional” because it exempts Plaintiff, due to his
1
The Florida Mental Health Act (“Act”), Part I, is also known
as the Baker Act, and is codified in Chapter 394.451-394.47892,
Florida Statutes (2018). Part V of the Act, titled “Involuntary
Civil Commitment of Sexually Violent Predators,” also known as the
Jimmy Ryce Act, is codified in Chapter 394.910-394.932, and
provides that a person determined to be a sexually violent predator
is required to be housed in a secure facility “for control, care,
and treatment until such time as the person’s mental abnormality
civil commitment status under Florida’s Jimmy Ryce Act, from
certain provision and safeguards contained in Part I of the Act
and
essentially allows “the state to hold the plaintiff in
punitive
conditions
of
confinement.”
(Doc.
#5
at
1-2).
Essentially Despart contends that Florida’s Jimmy Ryce Act is
“unconstitutional” because sexual offenders confined at the FCCC
are not entitled to the same rights as those individuals civilly
confined under the Baker Act. (Doc. #5 at 2).
Although Despart
does not explicitly identify any constitutionally protected rights
of which he is deprived due to his commitment under the Jimmy Ryce
Act, he does copy and paste various sections of the “Rights of
Patients” 2
contained within Part I of the Act and contends that
these portions must be added to the Jimmy Ryce Act (Section V of
the
Mental
standards.”
Health
Act)
“to
bring
it
up
to
constitutional
(Doc. #5 at 2-4).
Despart provides the following litany of conditions to which
he is subjected as evidence that his civil confinement is punitive:
“he has no privacy rights,” he is subject to “illegal search and
or personality disorder has so changed that it is safe for the
person to be at large.” Fla. Stat. § 394.917(2). The Act was
promulgated for the dual purpose “of providing mental health
treatment to sexually violent predators and protecting the public
from these individuals.” Westerheide v. State, 831 So. 2d 93, 112
(Fla. 2002).
2
Codified at Fla. Sta. § 394.459 (2018).
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seizure,”
his
annual
reviews
“contain
a
lot
of
hearsay
and
inaccurate information,” all of his “day to day contact” is with
security staff, the FCCC has a “goon squad S.O.R.T. which is
primarily used in prison settings,” etc.
(Doc. #5 at 4-5).
As relief, Despart asks this Court: (1) to declare the Section
V of the Florida Mental Health Act unconstitutional, (2) to repair
and open the G. Pierce Woods Mental Health Center, (3) require the
state to fund the Florida Department of Children and Families (DCF)
and stop hiring “for profit private contractors,” (4) “give the
DCF the legal authority” to rewrite the Mental Health Act, (5)
place him “in a more therapeutic environment,” (6) provide him
with
treatment
books,
(7)
“gut
the
administrative,
clinical,
medical, and security staff,” (8) hire new staff, (9) award him
monetary damages, and (11) award him attorney’s fees.
(Doc. #5
at 5-6).
Legal Standard
Since Despart seeks to proceed in forma pauperis, the Court
is to review the Complaint sua sponte to determine whether it is
frivolous, malicious, or fails to state a claim upon which relief
may be granted.
28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
Although
Despart is considered a non-prisoner due to his civil commitment
status, he is still subject to § 1915(e)(2).
See Troville v.
Venz, 303 F.3d 1256, 1260 (11th Cir. 2002) (finding “no error in
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the district court’s dismissal of [a non-prisoner’s] complaint”
under § 1915(e)(2)).
“less
stringent
attorneys.
In general, pro se complaints are held to
standards”
than
those
drafted
and
filed
by
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing
Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
However, the standard
pleading requirements under Fed. R. Civ. P. 8, Fed. R. Civ. P. 10
still apply to pro se complaints.
Giles v. Wal-Mart Distribution
Ctr., 359 F. App'x 91, 92 (11th Cir. 2009).
In particular, the
complaint must contain “a short and plain statement of the claim
showing
that
the
pleader
is
entitled
to
relief,”
allegation must be simple, concise, and direct.”
8(a)(2), (d)(1).
suggesting,
but
and
“each
Fed. R. Civ. P.
Overall, “a lengthy . . . personal narrative
not
clearly
and
simply
stating,
a
myriad
of
potential claims” does not meet the pleading requirements of Rules
8 and 10.
Giles, 359 F. App’x at 93.
Furthermore, this Court uses the standard for Fed. R. Civ. P.
12(b)(6) dismissals for dismissals under § 1915(e)(2)(B)(ii).
Alba v. Montford, 517 F. 3d 1249, 1252 (11th Cir. 2008).
See
Under
Rule 12(b)(6), a complaint is subject to dismissal if the claim
alleged is not plausible on its face.
550 U.S. 544, 556 (2007).
the
purposes
of
Rule
Bell Atlantic v. Twombly,
All pleaded facts are deemed true for
12(b)(6),
but
insufficient without adequate facts.
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a
Id.
complaint
is
still
The plaintiff must
assert enough facts to allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The asserted facts
must “raise a reasonable expectation that discovery will reveal
evidence” in favor of the plaintiff’s claim.
at 556.
Twombly, 550 U.S.
Overall, “labels . . . conclusions, and a formulaic
recitation of the elements of a cause of action” are not enough to
meet the plausibility standard.
Id. at 555.
Analysis
The
sponte,
Court
and
now
finds
reviews
this
Despart’s
action
1915(e)(2)(B)(i) 3 and (ii).
subject
Amended
to
Complaint,
dismissal
sua
under
§
At the outset the Court takes judicial
notice that over a decade ago, Despart, represented by counsel,
filed an analogous complaint in this Court claiming, inter alia,
that the Jimmy Ryce Act was unconstitutional because it was written
to hold him in punitive conditions of confinement.
Despart v.
Kearney, No. 2:02-CV-4-FTM-29DNF, 2006 WL 2789007, at *5–6 (M.D.
Fla. Sept. 26, 2006).
This Court dismissed that claim with
prejudice holding, in relevant part:
The Florida Supreme Court has noted that
‘Florida's Ryce Act is similar to the Kansas
Sexually
Violent
Predator
Act
in
many
3
A judge performing an examination for frivolity under
Section 1915(e)(2)(B)(i) is not required to assume the truth of
the allegations. See Cofield v. Ala. Public Serv. Comm., 936 F.2d
512, 515 (11th Cir. 1991).
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respects.’ Westerheide, 831 So.2d at 99, n. 6.
In Kansas v. Hendricks, 521 U.S. 346 (1997)
the United States Supreme Court held that
involuntary confinement pursuant to the Kansas
Sexually Violent Predator Act was not punitive
because
it
did
not
establish
criminal
proceedings. Similarly, the Court finds that
the Jimmy Ryce Act is not punitive because it
does not establish criminal proceedings. Thus,
the claim that the Jimmy Ryce Act is
unconstitutional
because
it
constitutes
punishment is dismissed.
Id.
Res judicata and collateral estoppel are affirmative defenses
which justify dismissal of a claim as frivolous. “When the defense
is apparent from the face of the complaint or the court's records,
courts need not wait and see if the defense will be asserted in a
defensive pleading.” Miller v. Woodham, No. 05-12425, 2006 WL
955748, at *1 (11th Cir. Apr. 12, 2006) (citing Clark v. Ga.
Pardons and Paroles Bd., 915 F.2d 636, 641 n.2 (11th Cir. 1990)).
Here,
Plaintiff’s
allegations
are
simply
a
rework
of
the
allegations he raised in his earlier lawsuit and thus are barred
by the doctrine of collateral estoppel and res judicata.
Wilson
v. Lynaugh, 878 F.2d 846, 850-851 (5th Cir. 1989) (dismissing
complaint that reasserted allegations litigated in a previous
suit), cert. denied, 493 U.S. 969 (1989).
Alternatively, the Court notes that the Florida legislature
distinguished sexual offenders from individuals committed under
the Baker Act and determined that the Baker Act was inadequate to
properly address their condition:
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The Legislature finds that a small but extremely
dangerous number of sexually violent predators exist who
do not have a mental disease or defect that renders them
appropriate for involuntary treatment under the Baker
Act, part I of this chapter, which is intended to provide
short-term treatment to individuals with serious mental
disorders and then return them to the community.
In
contrast to persons appropriate for civil commitment
under the Baker Act, sexually violent predators
generally have antisocial personality features which are
unamenable
to
existing
mental
illness
treatment
modalities, and those features render them likely to
engage in criminal, sexually violent behavior. The
Legislature further finds that the likelihood of
sexually violent predators engaging in repeat acts of
predatory sexual violence is high. The existing
involuntary commitment procedures under the Baker Act
for the treatment and care of mentally ill persons are
inadequate to address the risk these sexually violent
predators pose to society.
The Legislature further
finds that the prognosis for rehabilitating sexually
violent predators in a prison setting is poor, the
treatment needs of this population are very long term,
and the treatment modalities for this population are
very different from the traditional treatment modalities
for people appropriate for commitment under the Baker
Act. It is therefore the intent of the Legislature to
create a civil commitment procedure for the long-term
care and treatment of sexually violent predators.
§ 394.910, Fla. Stat.(2018). The legislature expressly stated its
intent that sexually violent predators not be governed by Baker
Act standards:
The Legislature intends that persons who are subject to
the civil commitment procedure for sexually violent
predators under this part be subject to the procedures
established in this part and not to the provisions of
part I of this chapter. Less restrictive alternatives
are not applicable to cases initiated under this part.
§ 394.911, Fla. Stat. (2018) (emphasis added).
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In Seling v.Young, 531 U.S. 250 (2001), a case brought under
28 U.S.C. § 2254, the United States Supreme Court considered a
sexually violent predator's “as applied” constitutional challengeon double jeopardy and ex post facto grounds-to Washington State's
sexually violent predator statute based on the conditions of his
confinement (the petitioner claimed that the conditions of his
confinement were too restrictive, that they were incompatible with
treatment, and that the system was designed to result in indefinite
confinement). Id. at 262. The Court rejected as unworkable a scheme
where a sexually violent predator statute's punitive intent would
be evaluated on an “as applied” basis and held that Washington
State's legislative and judicial determination that its sexually
violent predator statute was civil rather than criminal precluded
the “as applied” double jeopardy and ex post facto challenges.
The Court further noted that Seling's claims “were in many respects
like the claims presented to the Court in [Kansas v.] Hendricks,
[521 U.S. 346, 117 S. Ct. 2072 (1997)], where we concluded that
the conditions of confinement were largely explained by the State's
goal to incapacitate, not to punish.”
Id., at 262.
Consequently,
the fact that Plaintiff’s conditions of confinement are not akin
to the conditions of confinement of an individual held under the
Baker Act does not ipso facto give rise to a constitutional
violation.
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Accordingly, it is hereby
ORDERED:
1. The Amended Complaint is DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B)(i) and (ii).
2. The Clerk of Court shall terminate any pending motions,
enter judgment, and close this file.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2018.
SA:
FTMP-1
Copies:
Counsel of Record
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18th
day
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