Whitsett v. Cannon et al
Filing
31
ORDER denying 28 Defendants' Motion to Dismiss. Defendants Parrish and Polk shall respond to the Fourth Amended Complaint by October 20, 2015. Signed by Judge Marcia Morales Howard on 9/30/2015. (JW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
STEVEN R. WHITSETT,
Plaintiff,
v.
Case No. 3:14-cv-813-J-34JBT
TIMOTHY CANNON,
et al.,
Defendants.
ORDER
THIS CAUSE is before the Court on Defendants Parrish and
Polk’s Motion to Dismiss Plaintiff’s Fourth Amended Complaint (Doc.
#28; Motion) filed on January 20, 2015. Plaintiff filed a response
to the Motion on February 9, 2015.
See Plaintiff’s Reply to
Defendants Parrish [sic] Polk’s Motion to Dismiss Plaintiff’s
Fourth Amended Complaint (Doc. #29; Response).
Motion is ripe for review.
Accordingly, the
I.
Background Facts1
Plaintiff Steven R. Whitsett (Whitsett), proceeding pro se,
alleges that, while an inmate at Columbia Correctional Institution
(CCI), he has been improperly designated as a “violent potential
predator,” transferred to more restrictive housing with violent
inmates, and deprived of numerous privileges.
Complaint
(Doc.
#27;
FAC)
¶¶
10-42.2
See Fourth Amended
Whitsett
asserts
that
Defendants J.A. Parrish and Randall Polk have violated his right to
due process under 42 U.S.C. § 1983, as guaranteed by Article I,
Section 9 of the Florida Constitution and the Fourteenth Amendment
to the United States Constitution, by designating him a potential
predator without prior notice or an opportunity to defend (Count I)
and by doing so based on a 1995 conviction for lewd assault in
violation of department policy (Count Two).
Id. at 8-9.
Whitsett provides the following factual background for his
claims.
In 1995, Whitsett was convicted of lewd assault, and the
state court sentenced him to 8 years of incarceration.
Id. ¶ 1.
1
In considering the Motion, the Court must accept all factual
allegations in the Fourth Amended Complaint (Doc. #27) as true,
consider the allegations in the light most favorable to the
plaintiff, and accept all reasonable inferences that can be drawn
from such allegations. Hill v. White, 321 F.3d 1334, 1335 (11th
Cir. 2003); Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534
(11th Cir. 1994). As such, the facts recited here are drawn from
the FAC, and may well differ from those that ultimately can be
proved.
2
The Court will refer to the exhibits appended to Whitsett’s
FAC as “Ex.”
- 2 -
After completing his term of incarceration in 1999, Whitsett
continued to be detained in a civilian mental health facility from
which he escaped on June 5, 2000.
Id. ¶¶ 3-4.
Authorities
captured Whitsett the next day, charged and convicted him of armed
escape,
and
later
imprisonment.
sentenced
Id. ¶¶ 5-7.
Whitsett
to
twenty
years
of
In 2010, authorities transferred
Whitsett to CCI, and on February 8, 2013, relocated him to a high
security housing dorm with “particularly violent prisoners.”
¶¶ 9-10.
Id.
“[A]cting on a rumor,” Whitsett requested information
regarding his inmate classification.
Id. ¶ 11.
In response, J.
Waters, a classification officer, advised Whitsett that on February
4, 2013 the Institutional Classification Team had designated him as
a “potential violent predator” (PVP) based on his 1995 conviction
for lewd assault, pursuant to an interim policy explained in a
department Memorandum.
(Memorandum).
Id. ¶¶ 11-14, 18; see Exs. A, B, C, D
Whitsett contends that the Inmate Classification
Team included Defendants Polk and Parrish.
Id. at ¶ 14.
He
further asserts that these Defendants failed to give him notice, an
opportunity
designation.
to
appear,
or
Id. ¶¶ 15-17.
an
opportunity
to
challenge
his
Whitsett also alleges that the
department policy only allowed a PVP designation based on actions
that occurred within the correctional system during the current
term of incarceration, not for prior actions that occurred outside
- 3 -
the correctional system, such as his 1995 lewd assault.
Id. ¶ 21;
see generally, Memorandum.3
In support of his claims, Whitsett provides a copy of a
Memorandum, dated January 18, 2013, sent by Timothy H. Cannon, then
the Assistant Secretary of Institutions, Florida Department of
Corrections (FDOC),4 to Regional Directors and Wardens with the
subject, “Potential Predator Identification List (Pre-iBAS/SRI
Initiatives).”
See id. at 1.
The Memorandum describes an interim
process for FDOC “to identify certain predators or potential
predators” with the goal of reducing in-cell violence between
inmates.
a
report
Id.
The Memorandum provides a high-level description of
analyzing
a
variety
of
factors,
including
the
two
classifications described below, to be used “to ensure appropriate
inmate housing assignments.”
Id. at 2.
During assessments,
classification officers are directed to check a box in the central
database if the inmate meets one of two criteria: (1) commission of
a murder in prison (MIP), for which inmates will be deemed a
3
There was some confusion regarding Whitsett’s
classification. Cf. Exs. A, B, C, I, K, L (explaining Whitsett had
been classified a potential predator by the Central Office) with
Exs. H, N, O (mistakenly confirming Whitsett had no such
classification).
In their Motion, Defendants explain that
Whitsett’s designation was initially maintained only in the Central
Office database, but was not kept in his institutional
classification file, which explains why certain CCI officers did
not have immediate access and provided incorrect information.
Motion ¶ 12.
4
Mr. Cannon is now the Deputy Secretary of FDOC.
- 4 -
predator; or (2) currently incarcerated for a violent felony
commission (VFC), for which inmates will be deemed a PVP.
Id.
For
the second category, in which Whitsett has been classified, the
Memorandum states that
an inmate’s entire record should be taken into
consideration, including the number of violent
disciplinary reports and their circumstances,
and/or the nature and circumstances of the
violent felony conviction, the inmate’s arrest
record including the presence of any sex
convictions,
overall
institutional
adjustments,
prior
negative
transfers,
contacts, length of sentence, size, stature
and any other information about the inmate
known by staff not available in the database.
Id. at 3.
The Memorandum states that inmates with the MIP flag,
“to the extent possible, SHOULD NOT be housed with inmates who are
not identified as such[,]” id. at 2 (emphasis original), but
provides no such proscription for inmates deemed PVPs, such as
Whitsett.
Whitsett also provides an email from Terri Gilliam, State
Classification
Officer,
Bureau
of
Classification
Management,
explaining that
to qualify for the VFC flag he or she must
have committed the violent felony and received
a conviction for the violent felony during his
or her current incarceration. This includes
convictions for offenses while the inmate is
out of [FDOC’s] custody but still actively
serving his or her sentence ... .
FAC, Ex. J.
Whitsett attaches his inmate requests, informal and
formal grievances, and corresponding FDOC responses regarding his
- 5 -
classification and change in housing, documenting his attempts to
determine his status and address his concerns internally.
See id.
Exs. A, B, C, E, F, G, H, I, K, L, M, N, O.
As a result of his VFC classification and PVP designation,
Whitsett alleges that he has endured a “significant and atypical
hardship.”
Id. at 8.
Specifically, he alleges that he
was placed in a “high risk” housing unit at
[CCI ...] with other prisoners designated
potential predators[;] has had restrictions
placed on [his] housing, bunk, work, education
and vocation assignments which prevent him
from participating in rehabilitation programs
necessary for his re-entry into society in
early 2016[;] suffers from the stigma of being
viewed as a sexual predator by staff and other
prisoners [resulting in] sexual harassment and
threats of sexual violence[; and] suffers
mental anguish from being designated a
potential predator [although] a civil jury
returned a verdict on April 4, 2001, finding
him to not be a predator.
Id. ¶¶ 43-47 (emphasis original).
For relief, Whitsett seeks (1)
a declaratory judgment stating Whitsett’s PVP designation without
notice, hearing, or proper qualification violated his due process
rights; (2) an award of costs against Defendants; (3) a permanent
injunction directing Defendants to remove Whitsett’s designation
from his institutional classification file; (4) an award of nominal
damages; and (5) such other relief as he may be entitled.
Id. at
9-10.
In their Motion, Defendants seek dismissal of Whitsett’s
claims in their entirety.
See generally Motion.
- 6 -
Specifically,
Defendants argue that Whitsett’s claims should be dismissed because
he has not alleged a loss of any cognizable liberty interest, and,
thus, fails to state a claim.
See Motion at 4-9.
Defendants
contend that there can be no stigma creating a liberty interest
based on designating Whitsett as a PVP because he has a prior
conviction for lewd assault.
Id. at 5-6.
In doing so, Defendants
distinguish Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999), in
which the Eleventh Circuit found a liberty interest implicated by
labeling an inmate as a sexual predator where the inmate had not
been convicted of a sex crime and the classification restricted his
housing, took away privileges, and required attendance at therapy
sessions. See Motion at 5. Defendants argue that unlike in Kirby,
Whitsett
has
been
convicted
of
a
sex
crime
and,
here,
no
participation in therapy or treatment programs is required. Id. at
6.
Defendants also argue that Whitsett’s designation is made
under the FDOC’s general authority to maintain order that includes
broad discretion in housing classification.
Id. at 6-7 (citing
Fla. Stat. §§ 944.17(7), 945.025(1)). Indeed, they assert that the
housing restrictions about which Whitsett complains are similar to
those imposed on other inmates in administrative and disciplinary
confinements5 or those placed in close management and which have
5
Pursuant to Rules 33-602.220(1)(a), (5); 33-602.222(1)(f),
(4); 33-601.800(1)(d), (e), Fla. Admin. Code.
- 7 -
been held not to implicate the Due Process Clause.
Id. at 7 n.1
(citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d
418
(1995)).
Defendants
also
argue
that
Whitsett
has
no
constitutional right to vocational, rehabilitative, or educational
programs. Id. at 8. Thus, Defendants contend that because the PVP
designation implicates no constitutional rights, even if the policy
stated in the Memorandum was misapplied, Whitsett has no cause of
action.
Id. at 8-9.
In his Response, Whitsett argues that, even if the conditions
of his confinement did not implicate a liberty interest, which he
disputes,
his
placement
in
segregation
implicates
a
liberty
interest requiring due process under Wolff v. McDonnell, 418 U.S.
539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Response at 1-4.
Whitsett contends that, just as with disciplinary confinement or
close management, which require due process through formal rules
providing notice and hearing, his segregation implicates a liberty
interest that also requires due process.
Id. at 3-4.
He notes
that, after he began filing grievances related to the lack of
process,
in
September
2013,
prison
authorities
implemented
procedures to provide notice and hearings for other prisoners
subsequently reviewed for MIP or VFC designations.
Id. at 4.
Whitsett argues that this is a tacit admission that a liberty
interest is implicated in his designation.
- 8 -
Id.
Whitsett further argues that, since prisoners in disciplinary
segregation
have
a
liberty
interest
in
outdoor
recreation
privileges under the standard announced in Sandin, 515 U.S. 472,
115 S.Ct. 2293, he must have a similar liberty interest in access
to some rehabilitative programs, which have been banned outright
for
his
indefinite6
segregation,
especially
in
light
of
his
upcoming release. Id. at 4-6 (citing Bass v. Perrin, 170 F.3d 1312
(11th Cir. 1999).
Whitsett acknowledges that he does not have a
liberty interest in any specific program assignment, but responds
that
a
blanket
ban
on
all
assignments
is
an
atypical
and
significant hardship, especially in his situation so close to
release where such a ban contradicts FDOC’s statutory goal to
rehabilitate offenders.
Id. at 5.
Whitsett also notes that on at
least two occasions the Second Circuit Court of Appeals has held
that extended administrative segregation, in both cases shorter
than his, implicate a liberty interest.
Id. at 6 (citing Giano v.
Selsky, 238 F.3d 223 (2d Cir. 2001) (762 days); Colon v. Howard,
215 F.3d 227 (2d Cir. 2000) (305 days)).
Finally, Whitsett contends that his designation as a PVP is
akin to a designation as a sexual predator, thus requiring due
process.
Id. a 6-10.
He asserts that, as in Kirby, he should not
6
In the Response, filed February 9, 2015, Plaintiff states
that he has been in segregation as a potential predator for 720
days. Thus, as of this writing, Plaintiff has been in segregation
for over two and one-half years.
- 9 -
be labeled a “violent predator” without process because he has not
been convicted of a violent felony. Id. at 7-8. Whitsett compares
his classification to that of a sexual predator and cites state
court decisions requiring due process for such a classification.
Id. at 8-9.
As a result of his PVP classification, Whitsett
contends that he has been stigmatized and sexually harassed by
guards and inmates, thus further implicating a liberty interest.
Id. at 9-10.
II.
Standard of Review
In ruling on a motion to dismiss, brought pursuant to Rule
12(b)(6), Federal Rules of Civil Procedure (Rule(s)), the Court
must accept the factual allegations set forth in the complaint as
true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
1949, 173 L.Ed.2d (2009); Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1, 122 S.Ct. 992, 995 n.1 (2002); see also Lotierzo v.
Woman’s World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir.
2002).
In addition, all reasonable inferences should be drawn in
favor of the plaintiff.
See Omar ex. rel. Cannon v. Lindsey, 334
F.3d 1246, 1247 (11th Cir. 2003) (per curiam).
Nonetheless, the
plaintiff must still meet some minimal pleading requirements.
Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1262-63 (11th Cir.
2004) (citations omitted). Indeed, while “[s]pecific facts are not
necessary[,]” the complaint should “‘give the defendant fair notice
of what the ... claim is and the grounds upon which it rests.’”
- 10 -
Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167
L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007)). Further, the plaintiff must allege “enough facts to state
a claim to relief that is plausible on its face.” Twombly,550 U.S.
at 570, 127 S.Ct. at 1974, 167 L.Ed.2d 929.
“A claim has facial
plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678, 129
S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
A “plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.”
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65
(internal quotations omitted); see also Jackson, 372 F.3d at 1262
(explaining that “[c]onclusory allegations, unwarranted deductions
of facts or legal conclusions masquerading as facts will not
prevent dismissal”) (internal citation and quotations omitted).
Indeed, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions,” which simply “are not entitled to [an] assumption of
truth.”
See Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.
Thus, in
ruling on a motion to dismiss, the Court must determine whether the
FAC contains “sufficient factual matter, accepted as true, to
- 11 -
‘state a claim to relief that is plausible on its face.’” Id. at
678 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955).7
III. Discussion
“[S]ection 1983 provides individuals with a federal remedy for
the deprivation of rights, privileges, or immunities protected by
the
Constitution
or
the
laws
of
committed under color of state law.”
the
United
States
that
are
Brown v. City of Huntsville,
Ala., 608 F.3d 724, 733 n.12 (11th Cir. 2010) (citation omitted);
see 42 U.S.C. § 1983.
Thus, to state a claim for relief under §
1983, a plaintiff must sufficiently allege that he or she was
“deprived of a right secured by the Constitution or laws of the
United States, and that the alleged deprivation was committed under
color of state law.”
See Focus on the Family v. Pinellas Suncoast
Transit Auth., 344 F.3d 1263, 1276-77 (11th Cir. 2003) (quotation
7
Prior to Iqbal, Eleventh Circuit precedent instructed that
a heightened pleading standard applied in § 1983 actions where “the
defendants are individuals who may seek qualified immunity.” See
Amnesty Int’l, USA v. Battle, 559 F.3d 1170, 1179 (11th Cir. 2009).
However, in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), the
Eleventh Circuit determined that “[a]fter Iqbal it is clear that
there is no ‘heightened pleading standard’ as it relates to cases
governed by Rule 8(a)(2), including civil rights complaints.” See
Randall, 610 F.3d at 707-10. In light of this Eleventh Circuit
precedent and because Defendants do not assert that the heightened
pleading standard applies, the Court will apply the standard of
review set forth in Twombly and Iqbal.
Id. at 710; see also
Nettles v. City of Leesburg Police Dep’t, 415 F. App’x 116, 120-21
(11th Cir. 2010) (unpublished); but see Harper v. Lawrence Cnty.,
Ala., 592 F.3d 1227, 1233 (11th Cir. 2010) (applying the heightened
pleading standard post-Iqbal); Keeting v. City of Miami, 598 F.3d
753, 762-63 (11th Cir. 2010) (same).
- 12 -
omitted). Here, Whitsett alleges that Defendants have violated his
Fourteenth Amendment rights by designating him as a PVP without
prior notice or an opportunity to defend based on a 1995 conviction
in violation of department policy and that such designation results
in atypical and significant hardships to his confinement.
A.
Due Process Analysis Under Sandin
Courts “examine procedural due process questions in two steps;
the first asks whether there exists a liberty or property interest
that has been interfered with by the state[;] the second examines
whether
the
procedures
attendant
upon
that
deprivation
were
constitutionally sufficient.” Kentucky Dep’t of Corr. v. Thompson,
490 U.S. 454, 460, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989);
see also Wilkinson v. Austin, 545 U.S. 209, 221-22, 125 S.Ct. 2384,
2393, 162 L.Ed.2d 174 (2005).
Liberty interests may arise from
either the Due Process Clause or state law.
Meachum v. Fano, 427
U.S. 215, 225-27, 96 S.Ct. 2532, 2538-39, 49 L.Ed.2d 451 (1976).
In reviewing whether state law creates a liberty interest, the
Supreme Court has directed that courts must focus on the nature of
the deprivation at issue rather than a search for a negative
implication
from
mandatory
language
- 13 -
in
prisoner
regulations.
Sandin, 515 U.S. at 483-84, 115 S.Ct. at 2300.8
Looking at the
nature of the deprivation, the Sandin Court explained that state
created liberty interests rising to the level of requiring Due
Process protection generally will be limited to “freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to a Due Process violation of its
own force nonetheless imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484, 115 S.Ct. at 2300 (internal citations
omitted).
Notably,
in
the
wake
of
Sandin,
courts
have
reached
inconsistent conclusions regarding what constitutes an “atypical
and significant hardship” or how to determine the baseline of the
8
In Sandin, the Supreme Court abrogated its prior
methodology, in part, because federal courts had become too
involved in the day-to-day management of prisons. Sandin, 515 U.S.
at 482-83, 115 S.Ct. at 2299-2300 (citing Klos v. Haskell, 48 F.3d
81, 82 (2d Cir. 1995) (claiming liberty interest in right to
participate in “shock program” – a type of boot camp for inmates);
Segal v. Biller, 39 F.3d 1188, *1-2 (9th Cir. 1994) (unpublished)
(claiming liberty interest in a waiver of the travel limit imposed
on prison furloughs); Burgin v. Nix, 899 F.2d 733, 735 (8th Cir.
1990) (claiming liberty interest in receiving a tray lunch rather
than a sack lunch); Spruytte v. Walters, 753 F.2d 498, 506-08 (6th
Cir. 1985) (finding liberty interest in receiving a paperback
dictionary due to a rule that states a prisoner “‘may receive any
book ... which does not present a threat to the order or security
of the institution’”) (citation omitted); Lyon v. Farrier, 727 F.2d
766, 768-69 (8th Cir. 1984) (claiming liberty interest in freedom
from transfer to a smaller cell without electrical outlets for
televisions and liberty interest in a prison job); United States v.
Michigan, 680 F.Supp. 270, 277 (W.D. Mich. 1988) (finding liberty
interest in not being placed on food loaf diet).
- 14 -
“ordinary incidents of prison life.”9
Wilkinson, 545 U.S. at 223;
125 S.Ct. at 2394 (describing the difficulty in comparing different
Circuits’ approaches in Beverati v. Smith, 120 F.3d 500, 504 (4th
Cir. 1997), and Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996),
with Hatch v. District of Columbia, 184 F.3d 846, 847 (D.C. Cir.
1999); also citing Wagner v. Hanks, 128 F.3d 1173, 1177 (7th Cir.
1997)).
In 2005, the Supreme Court revisited the issue of a
prisoner’s liberty interest in the context of a change in custodial
conditions.
174.
Wilkinson, 545 U.S. 209, 125 S.Ct. 2384, 162 L.Ed.2d
Although the Supreme Court had previously held that the
Constitution does not give rise to a liberty interest in avoiding
transfer to more adverse conditions of confinement, see Meachum,
427 U.S. at 225, 96 S.Ct. at 2538, the Wilkinson Court held that a
transfer to a supermax facility did implicate a liberty interest
under state law. Wilkinson, 545 U.S. at 223-24; 125 S.Ct. at 239495.
The
Supreme
Court
reasoned
that,
taken
together,
the
conditions at the supermax facility were so extreme, almost all
human contact is prohibited for the duration of the sentence, no
conversation among cells is allowed, the lights in cells are
constantly on, exercise is limited to one hour per day in a small
9
As Justice Ginsburg noted in her dissent, “[t]he Court
ventures no examples, leaving consumers of the Court’s work at sea,
unable to fathom what would constitute an ‘atypical and significant
deprivation, ... and yet not trigger protection under the Due
Process Clause directly.” Sandin, 515 U.S. at 490 n.2; 115 S.Ct.
at 2303 n.2 (Ginsburg, J., dissenting).
- 15 -
indoor room, only annual reviews occur, and otherwise eligible
inmates are disqualified for parole consideration, that regardless
of how the baseline was defined, the restrictions imposed an
atypical and significant hardship.
was implicated.
Id.
Thus, a liberty interest
Id.
Consistent with Sandin and Wilkinson, the Eleventh Circuit has
recognized that a prisoner can be deprived of his liberty in
violation of due process in two ways:
The first is when a change in a prisoner’s
confinement is so severe that it essentially
exceeds the sentence imposed by the court.
See Sandin v. Conner, 515 U.S. 472, 484, 115
S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); see
e.g., Vitek v. Jones, 445 U.S. 480, 492-93,
100 S.Ct. 1254, 1263-64, 63 L.Ed.2d 552 (1980)
(holding that a prisoner is entitled to due
process prior to being transferred to a mental
hospital). The second is when the state has
consistently given a certain benefit to
prisoners (for instance, via statute or
administrative policy), and the deprivation of
that benefit “imposes atypical and significant
hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin,
515 U.S. at 484, 115 S.Ct. at 2300; see, e.g.,
Wolff v. McDonnell, 418 U.S. 539, 558, 94
S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974)
(prisoners may not be deprived of statutory
“good-time credits” without due process); cf.
Dudley v. Stewart, 724 F.2d 1493, 1497-98
(11th Cir. 1984) (explaining how the state
creates liberty interests).
In the first
situation, the liberty interest exists apart
from the state; in the second situation, the
liberty interest is created by the state.
Bass, 170 F.3d at 1318 (footnote omitted); see also Magluta v.
Samples, 375 F.3d 1269, 1282 (11th Cir. 2004) (recognizing a “new
- 16 -
Sandin standard,” under which there is “no liberty interest and no
constitutional
violation
...
if
the
Sandin
‘atypical
significant hardship’ standard [is] not met.”).
and
Applying this
standard, in Bass, the Eleventh Circuit considered a provision of
the Florida Administrative Code which provided for two hours of
“yard time” for prisoners in close management absent clear and
compelling reasons to do otherwise.
Bass, 170 F.3d at 1318.
Finding that prisoners had a state created interest in yard time,
the court concluded that the deprivation of yard time imposed
“enough of a hardship to qualify as a constitutionally protected
liberty interest.”
Id. at 1318.
Although the prisoners were
deprived of only two hours of yard time, the court found the
marginal value of those two hours to be substantial to one in close
management.
Id.
As such, the deprivation of those two hours
constituted an atypical and significant hardship warranting due
process protection.
Id.
While the various courts of appeal continue to differ in their
approach
to
determining
what
constitutes
an
“atypical
and
significant hardship” and where to look to determine the baseline
of the “ordinary incidents of prison life,” what is evident is that
the
ultimate
determination
of
whether
- 17 -
a
liberty
interest
is
implicated requires a fact intensive inquiry.10
At least at the
pleading stage, it appears that courts in this Circuit endeavor to
determine
whether
the
deprivation
alleged
is
atypical
and
significant when compared with the conditions experienced by the
general population. See Magluta, 375 F.3d at 1282-83 (holding that
allegations of solitary confinement in a tight space for over 500
days was sufficient to state an atypical and significant hardship
when compared to the expectations of a pre-trial detainee); Bass,
170 F.3d at 1318 (a deprivation of two hours per week of yard time
10
Cf., e.g., Sealey v. Giltner, 197 F.3d 578, 589 (2d Cir.
1999) (101 day administrative segregation was not atypical and did
not amount to significant hardship in relation to the ordinary
incidents of prison life); Frazier v. Coughlin, 81 F.3d 313, 317
(2d Cir. 1996) (neither 12 day solitary confinement nor 11 month
close supervision confinement were dramatically different from
conditions of general confinement); Griffin v. Vaughn, 112 F.3d 703
(3d Cir. 1997) (15 month administrative custody was not deprivation
of liberty); Beverati, 120 F.3d 500 (six month administrative
confinement was not a deprivation of liberty when compared to
conditions imposed on the general population); Pichardo v. Kinker,
73 F.3d 612, 612-13 (5th Cir. 1996) (under Sandin, absent
extraordinary circumstances, administrative segregation does not
work a deprivation of liberty); Jones v. Baker, 155 F.3d 810 (6th
Cir. 1998) (two and one half year administrative segregation during
the investigation of riot and prisoner’s implication in killing of
prison guard was not atypical and significant hardship); Selby v.
Caruso, 734 F.3d 554, 559 (6th Cir. 2013) (confinement in
administrative segregation for nearly 13 years is deprivation of
liberty); Hatch, 184 F.3d at 851 (analyzing the various different
approaches taken by Circuit Courts to determine whether a prisoner
suffered atypical and significant hardship in relation to the
ordinary incidents of prison life before holding that “due process
is required when segregative confinement imposes an ‘atypical and
significant hardship’ on an inmate in relation to the most
restrictive conditions that prison officials, exercising their
administrative authority to ensure institutional safety and good
order, routinely impose on inmates serving similar sentences.”).
- 18 -
implicates a liberty interest for a prisoner in close management);
Wallace
v.
Hamrick,
229
F.
App’x
827,
830
(11th
Cir.
2007)
(unpublished) (denying motion to dismiss because allegations of
twenty-eight day administrative segregation with no hot water, no
ventilation, no opportunity to exercise, and without timely medical
care, in violation of Georgia Department of Corrections policy,
might be sufficient to establish a state created liberty interest
when compared to the conditions of other inmates); Spaulding v.
Woodall, 551 F. App’x 984, 987 (11th Cir. 2014) (unpublished)
(finding inappropriate to dismiss prisoner’s complaint where he
alleged a liberty interest in his atypical segregation compared to
the general prison population and stigmatization of branding as a
sex offender).
B.
Whitsett’s Allegation of a Liberty Interest
Whitsett
alleges
that
he
was
unaware
of
his
initial
classification or any review, which he was told occurred on a
Sunday, that he was excluded from both decisions, and was only
informed after the fact.
his
liberty
interests
FAC Exs. K, L, M.
are
implicated
by
Whitsett contends that
(1)
his
indefinite11
confinement as a PVP in a “high risk” housing unit at CCI with
other
prisoners
designated
as
PVPs;
(2)
restrictions
on
his
housing, bunk, work, education and vocation assignments which
11
Over 950 days have elapsed.
- 19 -
prevent his access to rehabilitation programs; (3) the stigma of
being viewed as a sexual predator by staff and other prisoners; and
(4) a lack of any notice or review restricting any opportunity to
object to or defend against the ICT’s decision.
FAC at 8, ¶¶ 43-
46.
As explained in Sandin, a liberty interest may exist either
under the Due Process Clause or as created by a state, however, the
focus should be on the nature of the deprivation itself rather than
wrestling “with the language of intricate, often rather routine,
prison guidelines to determine whether mandatory language and
substantive predicates created an enforceable expectation that the
State would produce a particular outcome with respect to the
prisoner’s conditions of confinement.” Sandin, 515 U.S. at 480-81,
115 S.Ct. at 2298.
Thus, whether the State properly applied the
policy outlined in the Memorandum, or any other implementing
procedures, is less important than the nature of the deprivation
and its effect on the conditions of Whitsett’s confinement because
the Memorandum does not appear to create any liberty interest but
rather describes an interim classification procedure. Instead, the
Court
must
determine
whether
Whitsett’s
alleged
change
in
confinement and classification deprive him of a liberty interest
protected either by the Due Process Clause of its own force, or by
some other state-created liberty interest.
- 20 -
Defendants
argue
that
implicate a liberty interest.
Whitsett’s
designation
does
not
Initially, the Court notes that the
Supreme Court has determined that administrative confinement for
short periods of time does not implicate a liberty interest under
the Due Process Clause.
Sandin, 515 U.S. at 485-87, 115 S.Ct. at
2301-02 (thirty days); Rodgers v. Singletary, 142 F.3d 1252, 1253
(11th Cir. 1998) (two months).
Also, a transfer to a more
restrictive prison with less rehabilitative programs does not
typically implicate a liberty interest under the Due Process
Clause.
Meachum, 427 U.S. at 223-25, 96 S.Ct. at 2538; Moody v.
Daggett, 429 U.S. 78, 88 n.9, 97 S.Ct. 274, 279 n.9, 50 L.Ed.2d 236
(1976) (holding there is no constitutional entitlement to prison
rehabilitative programs or to particular custody classifications
under the Due Process Clause); Montanye v. Haymes, 427 U.S. 236,
242, 96 S.Ct. 2543, 2547, 49 L.Ed.2d 466 (1976).
administrative
confinement
and
exclusion
from
Thus, Whitsett’s
rehabilitative
programs do not of themselves implicate a liberty interest under
the Due Process Clause on this basis.
In other Due Process cases, courts have inquired whether such
a
designation
is
a
typical,
day-to-day,
administrative
classification, or amounts to an effective “branding,” as courts
have recognized in terms such as “sexual offender” and “mental
illness,” at least when such designation also requires counseling
and denial of privileges.
See Kirby, 195 F.3d at 1290-92 (citing
- 21 -
Vitek, 445 U.S. at 483-86, 100 S.Ct. at 1259-60); Kramer v. Donald,
286 F. App’x 674 (11th Cir. 2008) (unpublished) (denying claim
because prisoner was only required to attend counseling, not
branded with any offensive term). Indeed, in both Kirby and Vitek,
courts found that a stigmatization, more restrictive confinement,
and compelled treatment, taken together, implicated a liberty
interest under the Due Process Clause. However, while Whitsett has
alleged a stigmatization and more restrictive confinement, as in
Kirby and Vitek, he has not alleged any compelled treatment.
Viewing Whitsett’s allegations in the light most favorable to him,
Whitsett fails to allege a restraint that exceeds his sentence in
such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force.
Nevertheless, Whitsett alleges
violations of liberty interests connected with his administrative
segregation, which may instead arise under state law.
“[T]he touchstone of the inquiry into the existence of a
protected, state-created liberty interest in avoiding restrictive
conditions of confinement is not the language of the regulations
regarding those conditions but the nature of those conditions
themselves ‘in relation to the ordinary incidents of prison life.’”
Wilkinson, 545 U.S. at 223, 125 S.Ct. at 2394 (quoting Sandin, 515
U.S. at 484, 115 S.Ct. at 2300).
The Court notes that in Sandin,
where the Court held that a thirty day disciplinary segregation did
not present an atypical and significant deprivation by the state,
- 22 -
the Court did so on a motion for summary judgment.
486, 115 S.Ct. at 2301.
515 U.S. at
The Court first compared evidence of the
treatment of inmates in disciplinary segregation, administrative
segregation, and the general population to find that (1) the
administrative
segregation
“mirrored
those
conditions”
in
disciplinary segregation, and (2) the thirty day confinement “did
not
work
a
major
disruption
in
his
environment[,]”
determining that no liberty interest was implicated.
Indeed,
much
of
the
Eleventh
Circuit
and
before
Id.
Supreme
Court
authorities determining the existence of state created liberty
interests compare such evidence on summary judgment or at trial,
rather than at the pleading stage, as in the instant case.
See
Sandin, 515 U.S. 472, 115 S.Ct. 2293; Wilkinson, 545 U.S. 209, 125
S.Ct. 2384; Wolff, 418 U.S. 539, 94 S.Ct. 2963; Bass, 170 F.3d
1312; Rodgers, 142 F.3d 1252; Al-Amin v. Donald, 165 F. App’x 733
(11th Cir. 2006) (per curiam).
In contrast, in close cases courts
are less willing to dismiss claims for failure to allege a statecreated liberty interest at the motion to dismiss stage of the
proceedings.
See Spaulding, 551 F. App’x 984; Wallace,
229 F.
App’x at 830; Magluta, 375 F.3d at 1282-83; but see Morales v.
Chertoff, 212 F. App’x 888, 889-90 (11th Cir. 2006) (per curiam)
(holding that neither the Due Process Clause nor Florida statutes
bestowed a liberty interest in prisoner’s position as a law clerk);
Smith v. Regional Dir. of Fla. Dep’t of Corr., 368 F. App’x 9, 13
- 23 -
(11th Cir. 2010) (per curiam) (dismissing prisoner’s claims because
he failed to allege an atypical and significant hardship).
Upon review of the FAC, the Court cannot find as a matter of
law
that
the
particularly
combinations
when
imposed
of
hardship
indefinitely,
are
Whitsett
not
alleges,
atypical
and
significant when compared to “the ordinary incidents of prison
FDOC Rules12 allow for five levels of custody: community,
life.”
minimum, medium, close, or maximum.
R. 33-601.210(2)(a), Fla.
Admin. Code. They also require the prisoner’s presence at a formal
evaluation of his custody status at least annually to, among other
things, provide “the inmate with an opportunity to become involved
in assessing his progress and in stating his work and program
interests.”
the
Court
Whitsett’s
R. 33-601.210(4), Fla. Admin. Code.
cannot
determine
confinement
the
category,
falls.
Moreover,
if
On this record,
any,
Whitsett
in
which
alleges
indefinite confinement in circumstances akin to one of the middle
to higher levels of confinement allowed in Florida, which may
implicate a liberty interest.
Notably, other courts recognize the length of an inmate’s
confinement or administrative segregation to be significant in the
determination of whether a liberty interest is implicated.
12
See
The state law applicable to inmate classifications and
reclassifications, Fla. Stat. § 944.1905, provides the general
guidelines that prison officials use to determine a prisoner’s
classification level.
Likewise, Rule 33-601.210, Florida
Administrative Code, describes custody classification.
- 24 -
Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (noting that the
length of disciplinary confinement “is one of the guiding factors
in applying Sandin’s ‘atypical and significant hardship’ test”);
Arce v. Walker, 139 F.3d 329, 336-37 (2d Cir. 1998) (hardship of
confinement offset by relative brevity); see also Jones, 155 F.3d
at 814 (Gilman J., concurring) (noting that “relatively minor
hardships can give rise to a liberty interest when imposed for an
extended period of time”).
To be sure, Whitsett’s deprivation is
not as great as a transfer to a supermax prison, as in Wilkinson,
or a loss of “good time” credits, as in Wolff.
However, his
indefinite segregation with the attendant restrictions and loss of
privileges may be both atypical and significant when compared to
the state prisoner confinement scheme prescribed by State statute
and rule.
Thus, at the pleading stage, the Court cannot find as a
matter of law that Whitsett’s confinement does not impose an
atypical and significant hardship “in relation to the ordinary
incidents of prison life,” Sandin, 515 U.S. at 484, 115 S.Ct. at
2300.
Further, the Supreme Court has cautioned, “administrative
segregation may not be used as a pretext for indefinite confinement
of an inmate.
Prison officials must engage in some sort of
periodic review of the confinement of such inmates.”
Hewitt v.
Helms, 459 U.S. 460, 477 n.9, 103 S.Ct. 864, 874 n.9, 74 L.Ed.2d
675 (1983) (methodology abandoned, but holding affirmed, Sandin,
- 25 -
515
U.S.
at
483
n.
5,
115
S.Ct.
at
2300
n.5).
Thus,
the
possibility that Whitsett’s exclusion from any formal review could
be used as a pretext for indefinite confinement, cautions against
dismissal at this stage of the proceedings.
Accordingly, construing Whitsett’s pro
se
Fourth Amended
Complaint liberally and affording him every reasonable inference,
this
Court
finds
that
Whitsett’s
indefinite
confinement,
classification, restrictions, and loss of privileges, all taken
together, may implicate a state-created liberty interest.
In
denying Defendants’ Motion, the Court notes that it does not have
a
complete
picture
of
Whitsett’s
housing
status,
his
classification, or the apparently intermediate program under which
Whitsett was designated a PVP, much less a baseline of the ordinary
incidents of prison life. Thus, with a more complete set of facts,
the Court may determine that no liberty interest is implicated,
that due process was afforded to Whitsett, or that a lack of
process was cured by a later procedural remedy.
However, viewing
the facts in the light most favorable to Whitsett, as the Court
must, the Court finds that Whitsett’s Fourth Amended Complaint
meets the Iqbal plausibility test.
Therefore, it is now
ORDERED:
1.
Defendants’ Motion to Dismiss (Doc. #28) is DENIED.
- 26 -
2.
Defendants Parrish and Polk shall respond to the Fourth
Amended Complaint by October 20, 2015.
DONE AND ORDERED at Jacksonville, Florida, this 30th day of
September, 2015.
tc 9/29
c:
Steven R. Whitsett
Counsel of Record
- 27 -
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