Hall v. Palmer et al
Filing
110
ORDER denying 86 Plaintiff's motion for partial summary judgment; denying 87 Defendants' motion for summary judgment; referring the case to the Honorable James R. Klindt to conduct a settlement conference; directing the parties to contact Judge Klindt's chambers by January 23, 2020; directions to the Clerk. Signed by Judge Brian J. Davis on 1/13/2020. (KLC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ENOCH DONNELL HALL,
Plaintiff,
v.
Case No. 3:15-cv-824-J-39JRK
JOHN PALMER, etc.; et al.,
Defendants.
______________________________
ORDER
I. Status
Plaintiff,
Enoch
Donnell
Hall,
a
death-row
inmate,
is
proceeding on a fourth amended complaint (Doc. 22; Compl.) filed
by his court-appointed counsel. Plaintiff asserts claims based on
the conditions of his confinement and an alleged use of excessive
force while he was housed at Florida State Prison (FSP).1 The first
four
counts
are
against
individuals
the
Court
references
collectively as “supervisory defendants”: John Palmer, Warden of
FSP;
Jeffery
Classification
McClellan,
Assistant
Supervisor
of
Warden
FSP;
of
Amanda
FSP;
Gina
Maddox,
Gay,
Senior
Classifications Officer of FSP; and Julie Jones, former Secretary
Plaintiff is now housed at Union Correctional Institution
(UCI). See FDOC website, Offender Information Search, available at
http://www.dc.state.fl.us/OffenderSearch/Search.aspx
(last
visited January 8, 2020).
1
of the Florida Department of Corrections (FDOC).2 Plaintiff alleges
the supervisory defendants housed him a “heightened security” cell
for “multiple years” and arbitrarily restricted his recreation and
visitation privileges, in violation of the Eighth and Fourteenth
Amendments
and
contrary
Administrative Code.
to
the
provisions
of
the
Florida
See Compl. at 10-12. Count five of the
complaint is against two corrections officers, Defendants Simmons
and Ellis, for their
alleged use of excessive force against
Plaintiff on May 21, 2014. Id. at 13-14.
Before the Court are two motions for summary judgment: (1)
Plaintiff’s motion for partial summary judgment as to count four
of his complaint in which he seeks declaratory and injunctive
relief against the supervisory defendants (Doc. 86; Pl. Motion);
and (2) Defendants Jones, Palmer, McClellan, Gay, Maddox, and
Ellis’s motion for summary judgment as to the claims against the
supervisory defendants (counts one through four) (Doc. 87; Def.
Plaintiff sues Julie Jones in her individual and official
capacities as Secretary of the FDOC, a position she no longer
holds. Mark S. Inch is the current Secretary of the FDOC.
Therefore, pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure, Mark S. Inch will be substituted as the proper party
Defendant as the Secretary of the FDOC with respect to the
official-capacity claim. The individual-capacity claim against
Julie Jones remains.
2
2
Motion).3
The
motions
are
ripe
for
this
Court’s
review.
See
Responses (Doc. 92; Def. Resp.) (Doc. 93; Pl. Resp.).4
II. Summary Judgment Standard
Under Rule 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). An issue is genuine when the
evidence is such that a reasonable jury could return a verdict in
favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville
Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere
scintilla
of
evidence
in
support
of
the
non-moving
party’s
position is insufficient to defeat a motion for summary judgment.”
Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
Defendant Simmons was served on October 12, 2016, but he
did not respond to the complaint. As such, the Court directed the
Clerk to enter a default against Defendant Simmons on November 7,
2018. See Order (Doc. 82).
3
Except
for
deposition
transcripts
and
Plaintiff’s
declaration, the Court cites the parties’ exhibits as “Pl. Ex.”
and “Def. Ex.” followed by a letter designation. The Court cites
Plaintiff’s deposition transcript (Doc. 109) as “Pl. Dep.”;
Plaintiff’s declaration (Doc. 86-2) as “Pl. Dec.”; Defendant Gay’s
deposition transcript (Docs. 86-3, 86-4) as “Gay Dep.”; and
Defendant Palmer’s deposition transcript (Docs. 86-5, 86-6, 87-3,
87-4) as “Palmer Dep.” Page numbers to deposition transcripts
reflect the internal document numbering, not those assigned by the
Court’s electronic docketing system. Page numbers in all other
exhibits reference those assigned by the Court’s electronic
management system (CM/ECF), which are located in the upper right
corner of each document.
4
3
1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986)).
The party seeking summary judgment bears the initial burden
of demonstrating to the court, by reference to the record, that
there are no genuine issues of material fact to be determined at
trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The record to be considered on a motion for summary
judgment
stored
may
include
information,
(including
those
“depositions,
affidavits
made
for
or
documents,
electronically
declarations,
purposes
of
the
stipulations
motion
only),
admissions, interrogatory answers, or other materials.” Rule
56(c)(1)(A).
“When a moving party has discharged its burden, the nonmoving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox,
Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations
and quotation marks omitted).
On summary judgment, a party opposing the motion must point
to evidence in the record to demonstrate a genuine dispute of
material fact. Fed. R. Civ. P. 56(c)(1). Substantive law determines
the materiality of facts, and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law will
4
properly preclude the entry of summary judgment.” Anderson, 477
U.S.
at
248.
appropriate,
a
In
determining
court
“must
whether
view
all
summary
evidence
judgment
and
make
is
all
reasonable inferences in favor of the party opposing summary
judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.
1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del
Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).
When a court is presented with cross motions for summary
judgment, the court must evaluate each motion separately to
determine whether either party is entitled to the relief sought.
In accordance with Rule 56, when evaluating the merits of each
motion, the court must construe the facts in the light most
favorable to the non-moving party. See 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2720 (4th ed.,
August 2019 update) (“The court must rule on each party’s motion
on an individual and separate basis, determining, for each side,
whether a judgment may be entered in accordance with the Rule 56
standard.”).
III. Plaintiff’s Allegations & Claims for Relief5
Plaintiff sues the supervisory defendants in their individual
and official capacities. He alleges the supervisory defendants
Because Plaintiff is represented by counsel, the Court only
briefly summarizes the pertinent allegations and claims against
the supervisory defendants.
5
5
treated him differently than other death row inmates with respect
to his cell assignment and visitation and recreation privileges.
See Compl. at 6, 7. Plaintiff asserts he was arbitrarily “housed
in a cell that was built for and designated as a disciplinary
confinement cell for prisoners,” though he had not been found
guilty of any disciplinary infraction to have warranted this
“heightened security” status. Id. at 6. When Plaintiff grieved the
issue, he was informed his cell assignment was a result of “his
conviction for which he was sentenced to death.”6 Id.
Plaintiff also asserts the supervisory defendants arbitrarily
restricted his visitation and recreation privileges, which further
isolated him from other inmates and visitors. Id. at 10. Plaintiff
contends the collective conditions of his confinement—placement in
a heightened security cell with restrictions on his ability to
interact with others during recreation and visitation—amount to
cruel and unusual punishment in violation of the Eighth Amendment
(count one). Id. Additionally, he contends the restrictions on his
visitation
and
recreation
privileges
violate
the
Fourteenth
Amendment due process clause (counts two and three). Id. at 11,
12.
Plaintiff was sentenced to death on January 15, 2010, for
the murder of a corrections officer. See Pl. Motion at 4. See also
Florida
Department
of
Corrections
website,
available
at
http://www.dc.state.fl.us/OffenderSearch/Search.aspx
(last
visited January 8, 2020).
6
6
In
a
separately
characterizes
declaratory
as
and
a
numbered
“claim,”
injunctive
count
he
sets
relief
(four),
forth
against
which
his
Plaintiff
requests
the
for
supervisory
defendants. Id. at 13. In count four, Plaintiff asserts he faces
“the continuing violation of his limited rights afforded to him
regarding the terms of his confinement” unless declaratory and
injunctive relief are not granted. Id. In addition to declaratory
and injunctive relief, Plaintiff seeks nominal damages7 and any
equitable relief deemed just and proper, reasonable attorneys'
fees, costs, and litigation expenses. Id. at 13-14.
IV. Record Evidence
A. “Heightened Security” Cell Assignment
Plaintiff was transferred to FSP in 2008 after he murdered a
corrections officer at Tomoka Correctional Institution. Pl. Dep.
at 4-5. Between 2008 and 2011, Plaintiff was housed in maximum
management at FSP. Id. at 5. See also Palmer Dep. at 24. On March
23, 2011, after Plaintiff was convicted and sentenced to death, he
was moved to death row and immediately placed in a “heightened
security” cell. Pl. Dep. at 5; Pl. Dec. ¶ 4. A heightened security
cell is one with a solid steel door (solid door cell) as opposed
to one with bars (open bar cell). Pl. Dec. ¶ 5; Pl. Dep. at 12.
The Court previously found Plaintiff is limited to nominal
damages under the Prison Litigation Reform Act (PLRA) as to his
claims against the supervisory defendants. See Order (Doc. 68).
7
7
See also Palmer Dep. at 19 (stating there are five “reinforced
cells” on death row, which are reserved for inmates on heightened
security); Gay Dep. at 10 (recognizing that confinement in a solid
door cell is considered “heightened security”).
At deposition, Plaintiff described the differences between
solid door and open bar cells: solid door cells have a steel door
with only one small window, while open bar cells have bars down
the front allowing inmates to see out, reach out, and communicate;
the air quality in solid door cells is poor; inmates in solid door
cells are not permitted to have entertainment or comfort items,
such as televisions, radios, computers, access to the canteen,
reading materials from the library, or fans, while inmates in open
bar cells enjoy such privileges; inmates in solid door cells sleep
on a concrete slab, while inmates in open bar cells sleep on a
metal bed that flexes; the shelf available for eating and writing
is smaller in solid door cells than in open bar cells; and inmates
in open bar cells receive cell-front visits from members of the
church, while those in solid door cells do not. Pl. Dep. at 13,
14, 15, 18-19.8
Defendants do not dispute Plaintiff’s description of the
differences between solid door and open bar cells. See Def. Motion
at 8-9.
8
8
Plaintiff remained in a solid door cell for a little over
five years, from March 2011 until July 2016.9 Pl. Dep. at 15; see
also Pl. Dec. ¶ 9. In July 2016, an officer told Plaintiff he had
“received a telephone call from the administration” with an order
to move Plaintiff to an open bar cell. Pl. Dep. at 47. Plaintiff
was housed in an open bar cell for a couple of months, and then he
was returned to a solid door cell in about September or October
2016. Pl. Dep. at 16; Pl. Dec. ¶ 14. At that time, he received a
similar explanation for his return to a solid door cell: the
administration “got a call and [he] was to be moved back.” Pl.
Dep. at 47-48. Plaintiff remained in a solid door cell for about
five or six months, until March 2017, when, without explanation,
he was again moved to an open bar cell. Id. at 16, 48. Plaintiff
said, after March 2017, he was moved “a couple more times . . .
behind the [solid] door,” though he could not recall how many times
or the dates. Id. at 16-17.
The last time Plaintiff was placed in a solid door cell was
because of a disciplinary infraction in July 2017, following an
altercation with another inmate while in the recreation yard. Id.
In his deposition, Plaintiff testified he was moved from a
solid door to an open bar cell on July 21, 2016. Pl. Dep. at 15.
However, in his declaration, Plaintiff says he was moved on or
about July 15, 2016. Pl. Dec. ¶ 9.
9
9
at 17.10 Plaintiff remained in the solid door cell for about twenty
days, returning to an open bar cell on August 9, 2017. Id.
Plaintiff has not been moved back to a solid door cell since. Id.
Plaintiff had no disciplinary charges lodged against him
between 2011, when he was transferred to death row and placed in
a solid door cell, and 2016, when he was moved to an open bar cell
(the first time). Id. at 43; Palmer Dep. at 11; Def. Motion at 1112, 18.11 When Plaintiff filed a grievance asking why a restriction
had been imposed against him even though he had not committed a
disciplinary infraction, a prison official informed him he was
housed in a cell “for heightened security due to [his] . . . crime
that sent [him] to death row.” See Pl. Ex. E at 2. Defendant
Palmer, on the other hand, offered a different explanation for
Plaintiff’s cell assignment, maintaining the cell assignment was
not related to Plaintiff’s conviction. Palmer Dep. at 14.
Defendant
Palmer
testified
Plaintiff
was
placed
on
a
“heightened level of security” because he had a “propensity for .
. . violence” as demonstrated by his 1994 conviction (for which he
received a life sentence) and the 2011 murder conviction. Id. at
According to Plaintiff, the other inmate involved in the
altercation with him was not similarly disciplined by being moved
to a solid door cell. Pl. Dep. at 17.
10
Defendant Palmer testified he believed Plaintiff was
disciplined in 2015 for an “obscene, profane act charge.” Palmer
Dep. at 4. However, Defendant Palmer could not be sure, and
Defendants offer no documentary evidence of such a charge.
11
10
12,
16.
Defendant
Palmer
explained,
“from
a
behavioral
risk
assessment standpoint [Plaintiff had] demonstrated a pattern of
violence towards others.” Id. at 16. According to Defendant Palmer,
Plaintiff had to regain the trust of administrators to be moved to
an open bar cell. Id. at 17. However, Defendant Palmer also stated,
“[Plaintiff] committed one of the most heinous crimes that you can
commit
inside
of
a
prison,
and
that
is
murder
on
a
female
correctional officers.” Id. at 12.
Plaintiff offers the affidavit of Dr. Michael S. Maher, who
is a “board certified psychiatrist specializing in general and
forensic psychiatry” and evaluates inmates in FDOC facilities.
Maher Aff. ¶¶ 2, 3. Dr. Maher avers Plaintiff was “confined in a
heightened security, disciplinary-type cell with limited human
interaction, except for prison officials, for over five (5) years
and intermittently since then.” Id. ¶ 4. According to Dr. Maher,
the conditions of Plaintiff’s confinement, with sporadic out-ofcell recreation and limited contact with others, can have “a
profoundly negative impact on [a] prisoner’s mental health – due
to lack of outside human contact and interaction – and poses a
significant risk of serious harm to [an inmate’s] well-being.” Id.
¶ 5.
Plaintiff testified he feels physically better when he is in
an open bar cell as opposed to a solid door cell. Pl. Dep. at 13.
He avers the conditions in a solid door cell are similar to those
11
of “solitary confinement in that it severely restricts [his]
ability to communicate with other human beings.” Pl. Dec. ¶ 6.
B. Visitation Privileges
According to Defendant Palmer, when Plaintiff was sentenced
to death row in 2011, his privileges should have “automatically
reverted to contact visitation.” Palmer Dep. at 25-26. Plaintiff
testified he indeed had contact visitation when he was first sent
to death row in 2011. Pl. Dep. at 5-6. However, in early 2013,
Defendant Palmer learned Plaintiff had contact visitation, which
he thought was an error. Palmer Dep. at 26. As such, Defendant
Palmer changed Plaintiff’s visitation privileges to non-contact.
Id. See also Pl. Dep. at 9. Defendant Palmer believed, based on
the nature of Plaintiff’s offense (the murder) and his “pattern of
behavior,” the Institution Classification Team (ICT) should have
placed Plaintiff on non-contact visitation status when Plaintiff
initially was sent to death row. Id.
Defendant Palmer testified Plaintiff had a violent history
and
a
“pattern
of
behavior,”
and
Palmer
“did
[not]
trust
[Plaintiff] when [Palmer] was off at night or on weekends.” Id. at
26-27.
According
to
Defendant
Palmer,
a
“behavioral
risk
assessment would say that [Plaintiff] was at risk for . . . repeat
behavior.” Id. at 28-29.12 Defendant Palmer said Plaintiff is
Defendants do not provide a behavioral risk assessment for
Plaintiff.
12
12
different from other inmates on death row, though he did not
explain how. Id. at 33.
Plaintiff testified Defendant Palmer told him he was being
denied contact visitation because of Plaintiff’s “actions,” for
which
Plaintiff
consequences.”
was
Pl.
“warned
Dep.
at
that
49.
[he]
Plaintiff
would
did
suffer
not
the
know
what
“actions” Defendant Palmer was referring to, though he assumed it
was his murder conviction. Id.; see also Pl. Dec. ¶23. Plaintiff
also testified Defendant Maddox stated Defendant Palmer changed
Plaintiff’s visitation status “due to [his] conviction.” Pl. Dep.
at 11.
Plaintiff has not had a visitor since 2006. Pl. Dep. at 6.
However, in 2013, two people tried to visit him but were prevented
from doing so.13 Id. at 53, 56.
C. Recreation Privileges
According to Plaintiff, inmates on death row have two kinds
of
outdoor
recreation:
communal
recreation
and
cage
(solo)
recreation. Pl. Dep. at 23. See also Pl. Dec. ¶ 7. Defendant Palmer
testified death row inmates “automatically” have communal, outdoor
recreation unless the ICT imposes a restriction. Palmer Dep. at
It does not appear Plaintiff’s visitors were prevented from
seeing him because of his being on non-contact visitation status.
Plaintiff’s aunt told Plaintiff by letter that she attempted to
arrange a visit with him, but she “was given the runaround.” Pl.
Dep. at 55. A friend also tried to visit Plaintiff and, when she
arrived at the prison, was “turned away.” Id. at 56-57.
13
13
25-26. Inmates with communal recreation privileges can interact
with other inmates and play team sports such as basketball or
volleyball. Pl. Dep. at 28. Inmates in communal recreation also
have access to a water fountain and a kiosk machine (to email
family members). Id. at 33, 34.
Inmates assigned to solo recreation, however, are restricted
to a cage that roughly measures ten-feet tall by twelve to fifteenfeet wide by twenty-feet long. Pl. Dep. at 30; Pl. Dec. ¶8; Palmer
Dep. at 48. When confined to cage recreation, inmates are not
permitted to talk to others (even though they can see and hear
inmates exercising in the communal area), are not permitted to
bring anything with them, and have no access to water or the kiosk
machine. Pl. Dep. at 29-30, 33, 34.14 Defendant Palmer, however,
testified water is provided for inmates exercising in the cage.
Palmer Dep. at 50.
When Plaintiff was sentenced to death row in 2011, he was not
permitted
to
enjoy
communal
recreation.
Rather,
he
was
automatically assigned to cage recreation. Pl. Dep. at 5-6, 23.
Defendant Gay testified she understood Plaintiff’s recreation
privileges were restricted because of “the murder for which he was
convicted.” Gay Dep. at 53. On March 31, 2013, Plaintiff submitted
Plaintiff avers when he is denied communal recreation
privileges, he must choose whether to exercise in the cage or use
the kiosk, which he has done three times. Pl. Dec. ¶ 19.
14
14
an
informal
grievance
inquiring
about
his
recreation
status,
saying he was assigned to the “cages that are used for disciplinary
purposes.” See Def. Ex. G at 2. Defendant Maddox responded to the
grievance,
informing
Plaintiff
his
outdoor
recreation
status
complies with Florida Administrative Code rule 33-601.830(j)3. Id.
The first time Plaintiff received communal recreation was
when he was moved from the solid door cell to an open bar cell in
July 2016, but each time he subsequently was moved back to a solid
door cell, he was again restricted to cage recreation. Pl. Dep. at
24, 25.
Plaintiff testified he has not had to seek mental health
counseling because of his inability to participate in communal
recreation. Id. at 32. However, he also asserts the officers
discourage inmates from going to callouts, and the mental health
counselors “don’t want to talk to [inmates] like that.”
Id.
Plaintiff said he did not feel depressed because of the limits on
his recreation, but rather because of the “isolation.” Id. at 33.
Plaintiff agreed he felt “a difference” in himself when he was
granted communal recreation privileges as opposed to exercising in
the cage. Id. at 42.
V. Legal Analysis & Conclusions of Law
A. Defendants’ Motion for Summary Judgment
Defendants assert Plaintiff fails to state claims against the
supervisory defendants under the Eighth and Fourteenth Amendments.
15
Def. Motion at 5. As to the conditions of confinement claim,
Defendants maintain Plaintiff’s allegations do not rise to the
level of an Eighth Amendment violation but rather suggest he faced
“mere discomfort” or an inconvenience. Id. at 7. For instance,
Defendants argue, when Plaintiff was in the heightened security
(solid door) cell, he was not “deprived of any human need,” was
not subjected to the infliction of pain, and did not endure
conditions that were extreme or posed an unreasonable risk to his
health or safety. Id. at 10-11. Rather, they contend, Plaintiff
was provided items for his health and hygiene, such as dental care
and grooming items, and he was deprived only of “comfort” items,
such as a flexible metal bed, the ability to communicate with other
inmates,
a
television,
radio,
computer,
fan,
and
canteen
privileges. Id. at 8-9, 11.
As to the due process claim, Defendants assert Plaintiff’s
placement in a solid door cell and restrictions on his recreation
and visitation privileges were not arbitrary but were rationally
related to prison security and administrative needs. Id. at 16,
18, 19. They further state the Florida Administrative Code permits
prison officials to restrict recreation privileges of inmates
convicted of murdering corrections officers, without notice or
hearing. Id. at 16, 17, 18, 20.
Finally,
Defendants
assert
a
qualified-immunity
defense,
contending there was no clearly established law placing them on
16
notice of a potential Eighth or Fourteenth Amendment violation
when they placed Plaintiff on heightened security status and
restricted his recreation and visitation privileges. Id. at 21,
24.
As the Court previously ruled, Plaintiff states a claim under
the
Eighth
and
Fourteenth
Amendments,
and
the
constitutional
rights at issue were clearly established. See Order (Doc. 68). On
summary
judgment,
Plaintiff
has
gone
beyond
the
pleadings,
offering evidence to substantiate his allegations, most of which
Defendants do not dispute.15 After review of the evidence, the
Court finds there remain genuine issues of material fact with
respect to whether the supervisory defendants’ conduct violated
Plaintiff’s constitutional rights. As such, Defendants’ motion is
due to be denied.
B. Plaintiff’s Motion for Injunctive Relief
Plaintiff
seeks
summary
judgment
on
count
four
of
his
operative complaint, in which he seeks declaratory and injunctive
relief against the supervisory defendants. See Pl. Motion at 1-2.
Plaintiff asks the Court to enter an order declaring the FDOC
violated
provisions
of
the
Florida
Administrative
Code
(“the
Code”) related to Plaintiff’s confinement conditions and exercise
Defendants dispute only whether Plaintiff had access to
water when in cage recreation. See Palmer Dep. at 50.
15
17
and visitation privileges, and enjoining Defendants from engaging
in further such violations. Id. at 19-25.
In response, Defendants contend Plaintiff’s
requests for
declaratory and injunctive relief are moot because Plaintiff has
been transferred and is no longer housed in a heightened security
cell. See Def. Resp. at 5.
As a threshold matter, irrespective of the mootness issue,
the Court notes that Plaintiff is not entitled to declaratory or
injunctive relief on summary judgment. Notably, Plaintiff does not
move
for
summary
judgment
on
the
substantive
constitutional
claims, nor does he explicitly address them in his motion. See Pl.
Motion at 19-24. Rather, Plaintiff premises the relief he seeks in
his motion solely upon his contention that the conditions of
confinement he was forced to endure at FSP were not properly
imposed under the applicable provision of the Code. Id.
Even if Plaintiff were to demonstrate Defendants’ conduct was
not justified under the Code, such a finding does not necessarily
mean Defendants violated Plaintiff’s constitutional rights under
the Eighth and Fourteenth Amendments. Plaintiff does not argue he
has demonstrated as a matter of law that Defendants violated his
constitutional rights. Until Plaintiff proves his claims, he is
not entitled to permanent injunctive relief. See Thomas v. Bryant,
614 F.3d 1288, 1317 (11th Cir. 2010) (“To obtain a permanent
injunction,
a
party
must
show
18
.
.
.
he
has
prevailed
in
establishing
the
violation
of
the
right
asserted
in
his
complaint.”). Accordingly, Plaintiff’s motion is due to be denied.
Because the Court finds neither party is entitled to judgment
as a matter of law, the Court will refer the case to the assigned
Magistrate Judge to conduct a settlement conference. To enable the
parties to productively discuss settlement terms, however, the
Court
is
compelled
to
address
Defendants’
contention
that
Plaintiff’s requests for declaratory and injunctive relief are
moot.
Plaintiff acknowledges in a status report (Doc. 108; Pl.
Report) that he is now housed at UCI where he is in an open bar
cell and has the same recreation privileges as other death row
inmates.
See
Pl.
Report
at
1.
However,
Plaintiff’s
“contact
visitation privileges remain suspended.” Id. Despite now being in
an open bar cell, Plaintiff maintains the controversy remains ripe
for
review
because
“Defendants
have
a
history
of
moving
[Plaintiff’s] cell and imposing restrictions seemingly without
justification[, which] indicate[s] that the violations are capable
of repetition.” Id.
Plaintiff’s
contention
requires
the
Court
to
accept
the
premise that the FDOC imposed the complained-of conditions upon
him without “justification.” As such, the Court must closely
analyze the relevant Code provision to which Defendants cite as
justification for the confinement conditions of which Plaintiff
19
complains. That provision is rule 33-601.830 (“the Rule”), which
exclusively addresses death row.
i. Heightened Security
The Rule only “briefly addresses cell assignments” for death
row inmates. See Pl. Motion at 20. Under the Rule, all death row
inmates are on “single-cell special housing status . . . separate
from the general population housing.” See Fla. Admin. Code r. 33601.830(1). Both Defendants Palmer and Gay referenced “heightened
security” status in their depositions, though neither could define
what that phrase means. In fact, Defendant Palmer conceded the
phrase “heightened security” is not defined anywhere in the Rule.
Palmer Dep. at 80. Defendant Gay was unfamiliar with such a status
as a separate classification for death row inmates. See Gay Dep.
at 36. When asked whether the term “heightened security” is one
“used for classification of a death row inmate,” Defendant Gay
responded, “[n]ot that I know of.” Id.
Defendants Palmer and Gay also testified that “heightened
security” status is not necessarily the same as “disciplinary
confinement.” Defendant Palmer testified that death row inmates,
as
“a
unique
population”
inside
the
prison,
generally
serve
disciplinary confinement inside their cells. Palmer Dep. at 22.
Defendant Palmer stated, if there is “no imminent risk where we
feel like the person needs to go back behind . . . a solid door
then they would be placed in disciplinary confinement in their
20
cell.” Id. Similarly, Defendant Gay testified an inmate is not
necessarily in disciplinary confinement if he is in a solid door
cell. Gay Dep. at 36.
Defendants’ testimony comports with the plain language of the
Rule, which does not reference “heightened security” as a separate
death row classification or as a form of discipline. See Fla.
Admin. Code r. 33-601.830(1).16 Indeed, the phrase “heightened
security” appears only one time in the Rule, in subsection (7)(j),
which describes exercise privileges and restrictions the FDOC may
impose
on
those
601.830(7)(j)3.d.
privileges.
(noting
the
See
ICT
Fla.
Admin.
Code
may
restrict
an
r.
33-
inmate’s
recreation privileges for, among other reasons, “[a]ny major rule
violation which requires heightened security measures”). Not only
is there no definition of or policy for a so-called “heightened
security” status, Defendant Palmer, at his deposition, was unbale
to plausibly articulate why Plaintiff was assigned to such a
status.
Moreover, there is no provision in the Rule permitting the
whole-cloth removal of all “comfort” or “personal” items from a
death row inmate’s cell without justification and review. In fact,
subsection (7)(a) provides a list of items death row inmates
“shall” be provided: clothing; bedding; hygiene and medically
necessary
items; personal property (televisions, fans, radios,
etc.); canteen privileges; writing utensils (security pens); and
reading materials. See Fla. Admin. Code r. 33-601.830(7)(a). When
Plaintiff was in a solid door cell, he was denied many of the
“comfort” items listed in this subsection, though there appeared
to be no justification for the denial.
16
21
Defendant Palmer stated Plaintiff was on heightened security
status because Plaintiff had a “history” and “pattern” of violent
acts; had an “assaultive history”; could not be trusted; and,
according to a behavior risk assessment, “was at risk for . . .
repeat behavior.” Palmer Dep. at 16, 17, 27-29. However, Defendant
Palmer
could
not
explain
why
Plaintiff
was
more
violent
or
dangerous than other death row inmates, all of whom are serving
death sentences because of violent acts. For instance, Defendant
Palmer did not describe any incident in which Plaintiff was violent
while housed at FSP between 2008 and 2016. Nor could he have. The
evidence shows Plaintiff remained discipline-free until 2017, when
he admittedly engaged in a physical altercation with another
inmate.17
Recognizing Plaintiff remained discipline-free until 2017,
Defendant Palmer testified, “the lack of disciplinary infractions
in and of itself is not – not necessarily an indicator of positive
adjustment.” Id. at 55. Again, though, Defendant Palmer did not
describe by way of concrete example why he deemed Plaintiff more
of a risk than other death row inmates. Additionally, Defendant
Palmer
did
not
explain
the
results
of
any
“behavioral
risk
assessment” for Plaintiff, and Defendants provide no documentation
As noted previously, Defendant Palmer thought Plaintiff was
disciplined for an obscene word or act in 2015, though Defendants
offer no documentation of such a charge.
17
22
of such an assessment having been completed. The only examples of
Plaintiff’s
violence
to
which
Defendant
Palmer
refers
were
Plaintiff’s convictions. See id. at 11-12, 28.
While Defendant Palmer
disavowed
that Plaintiff’s
murder
conviction affected the decision to place Plaintiff in a solid
door cell, id. at 28, the evidence belies his contention. First,
a prison official expressly informed Plaintiff he was housed in a
cell “for heightened security due to [his] . . . crime that sent
[him] to death row.” See Pl. Ex. E at 2. The crime that sent
Plaintiff to death row was the murder of a corrections officer.
Moreover, in the parties’ joint pretrial statement, Defendants
acknowledge Plaintiff’s murder of a corrections officer justified
the restrictions Defendant Palmer imposed upon Plaintiff at FSP.
See Pretrial Stmt. at 3-4. Defendants state the following:
The Plaintiff brought this lawsuit to compel
Defendants to treat him like every other
similarly situated death row inmate, and yet,
Plaintiff is not similarly situated to any
other inmate on death row. Plaintiff was the
only prisoner at [FSP], who was serving a
life-sentence for killing in [sic] a guard …
Pretrial
Stmt.
at
3-4
(emphasis
added).
Defendants
continue,
“Plaintiff was placed in heightened security because the Warden
[Palmer] felt it necessary based on his interactions with Plaintiff
and the fact that Plaintiff had killed an officer while in prison.”
Id. at 4.
23
As
discussed,
Defendant
Palmer
offered
no
examples
of
interactions he had with Plaintiff that demonstrated Plaintiff
posed a risk of imminent harm to others such that Plaintiff should
have been housed in a solid door cell for five years, from 2011
until 2016. Instead, the evidence permits the inference that
Plaintiff was placed on heightened security status in 2011 solely
because he murdered a corrections officer.
ii. Recreation
The Rule permits the ICT to restrict the “place and manner”
of
an
inmate’s
recreation,
which
includes
a
restriction
on
interacting with other inmates, under the following circumstances:
[I]f the inmate has been convicted of or found
guilty through the department’s disciplinary
process . . . or an investigation sufficiently
documents that the inmate was involved in:
a. Assault or battery, murder, or attempted
murder of a correctional officer, volunteer,
visitor,
or
other
inmate
within
an
institution; . . . .
See
Fla.
Admin.
Code
r.
33-601.830(7)(j)3.
Defendants justify Plaintiff’s
lengthy
(emphasis
added).
cage recreation status
(from 2011 through 2016) by reference to this subsection, which
they interpret as allowing the ICT to restrict, without notice or
other justification, the recreation privileges of a death row
inmate who has been convicted of murdering a corrections officer.
See Def. Motion at 17; Pretrial Stmt. at 5.
24
To interpret subsection (7)(j) as allowing the ICT to place
a death row inmate in cage recreation solely because the inmate
was convicted of murdering a corrections officer appears to defy
the
intent
provides
of
all
the
death
provision.
row
Significantly,
inmates
enjoy
this
subsection
“out-of-doors”
exercise
unless there is a reason to impose a restriction, as set forth in
paragraph 3. See Fla. Admin. Code r. 33-601.830(7)(j)3. (stating
the ICT can restrict “the place and manner of outdoor exercise,
such as an inmate’s ability to interact with other inmates”)
(emphasis added).
Defendant Palmer himself testified that communal recreation
is the default for all death row inmates. Palmer Dep. at 25-26. He
stated that when Plaintiff was sentenced to death row, “without
imposed penalties by the [ICT] . . . his privileges would have
automatically reverted to . . . group exercise.” Id. If group
recreation is the default, then some basis logically must exist
for
subsequently
restricting
a
death
row
inmate’s
recreation
privileges, irrespective of the inmate’s conviction. To interpret
this provision as permitting FDOC officials to restrict a death
row inmate’s exercise privileges based upon the conviction for
which he is serving his sentence is tantamount to condoning
additional, arbitrary punishment.
Additionally, when subsection (7)(j)3. is read together with
subsection (3) (“ICT Reviews”), it appears a restriction on an
25
inmate’s recreation privileges is not intended to be imposed in
perpetuity or based upon a condition that will never change.
Subsection (3)(a) requires the ICT, every six months, to “conduct
a review of a death row inmate when the inmate . . . [h]as had
restrictions
placed
on
his
outdoor
exercise
pursuant
to
subparagraph (7)(j)3.” See Fla. Admin. Code r. 33-601.830(3)(b)2.
That there is a review policy suggests an inmate has an opportunity
to regain communal recreation status at some point. Requiring the
ICT to review a restriction that was imposed for a condition that
will never change appears meaningless. If, as Defendants suggest,
an inmate’s recreation can be restricted simply based upon his
conviction, the ICT can send an inmate convicted of murdering a
corrections officer to cage recreation seemingly at the pleasure
of the members of the ICT. Such a reading is at odds with basic
concepts of due process.18
That Plaintiff was never provided an explanation for the
recreation restrictions imposed upon him over the years, aside
from the July 2017 disciplinary charge, demonstrates the seemingly
arbitrary manner in which subsection (7)(j) can be invoked. For
instance, in July 2016, Defendants inexplicably reinstated
Plaintiff’s communal recreation status, though the nature of his
conviction had not changed. And, Plaintiff’s recreation privileges
are not currently restricted (as of October 11, 2019), though,
under Defendants’ argument, he could be returned to cage recreation
at any time given the fact remains: Plaintiff murdered a
corrections officer.
18
26
iii. Visitation
As
default
with
for
communal
death
recreation,
row
inmates.
contact
See
Fla.
visitation
Admin.
Code
is
the
r.
33-
601.830(7)(l); see also Palmer Dep. at 26 (“When [Plaintiff] was
released from maximum management to death row . . . his privileges
would have automatically reverted to contact visitation.”). The
Rule mandates contact visitation for death row inmates except in
specific instances in which there are security concerns: “Death
row
visits
shall
be
contact
visits
unless
security
concerns
indicate that a non-contact visit is necessary, in which case the
non-contact visit shall be approved by the warden in advance.” See
Fla. Admin. Code r. 33-601.830(7)(l) (emphasis added).
This provision is the sole basis upon which Defendants justify
restricting
Plaintiff’s
visitation
privileges
in
perpetuity,
beginning in about February 2013. See Def. Motion at 19; Def. Resp.
at 4. Defendant Palmer testified at deposition that he decided
Plaintiff’s visitation privileges were to be restricted “because
of the nature of [Plaintiff’s] offense.” Palmer Dep. at 26. The
language
of
subsection
(7)(l),
however,
suggests
non-contact
visits are to be imposed on a visit-by-visit basis, not as a
permanent status.
For instance, the reference to an inmate visit in the singular
(“a non-contact visit”; “the non-contact visit”) implies an inmate
may have a restriction imposed in advance of an individual visit
27
if the circumstances of that visit pose security concerns. Of
import, unlike recreation restrictions, the Rule does not require
the ICT to periodically review restrictions imposed on a death row
inmate’s
visitation
status.
See
Fla.
Admin.
Code
r.
33-
601.830(3)(b). That there is no review process for a death row
inmate’s visitation status suggests any denial of an inmate’s right
to contact visits should be imposed per visit, with each noncontact visit being approved by the Warden “in advance” of that
visit.19
iv. Mootness
Upon close examination of the relevant language of the Florida
Administrative Code, the Court finds some merit to Plaintiff’s
assertion
that
Defendants
heightened
security
status
arbitrarily
and
placed
restricted
his
Plaintiff
on
recreation
and
visitation privileges.20 Additionally, the Court finds Plaintiff’s
Plaintiff has not had a visitor attempt to see him since
2013. Pl. Dep. at 54, 56. Whether Plaintiff has had a visitor is
not dispositive of whether the Rule permits Defendants to
permanently restrict Plaintiff to non-contact visitation status.
Significantly, Defendant Palmer restricted Plaintiff’s visitation
privileges after he “was made aware that [Plaintiff] had contact
visits,” not based upon review of a recommendation from the ICT
with respect to a specific, planned visit. See Palmer Dep. at 26.
19
The Court acknowledges, however, the Rule permits FDOC
officials to impose appropriate restrictions on, and take
disciplinary action against, an inmate who has been found guilty
of a disciplinary infraction, such as the disciplinary charge
against Plaintiff in 2017.
20
28
requests for declaratory and injunctive relief are not moot even
though Defendants ceased some of the complained-of conduct.
When a government actor voluntarily ceases the conduct of
which a plaintiff complains, the claim is not necessarily moot.
Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014). The Eleventh
Circuit recognizes, “[i]t is well settled that when a defendant
chooses to end a challenged practice, this choice does not always
deprive a federal court of its power to decide the legality of the
practice.” Id. Quoting the Supreme Court, the Eleventh Circuit
observes:
It is no small matter to deprive a litigant of
the rewards of its efforts . . . . Such action
on grounds of mootness would be justified only
if it were absolutely clear that the litigant
no longer had any need of the judicial
protection that it sought.
Id. at 1319. As such, a defendant who claims to have mooted an
action by his own conduct “bears a formidable burden of showing
that it is absolutely clear the allegedly wrongful behavior could
not reasonably be expected to recur.” Id. at 1322. Accord Rich v.
Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531 (11th Cir. 2013)
(“Since the defendant is free to return to his old ways, he bears
a
heavy
burden
of
demonstrating
that
his
cessation
of
the
challenged conduct renders the controversy moot.”).
A government actor who voluntarily ceases alleged wrongful
conduct is entitled to a rebuttable presumption that the conduct
29
will not recur. Wooten, 747 F.3d at 1322. However, to receive the
benefit of the presumption, the government actor must establish
“unambiguous
termination
of
the
challenged
conduct.”
Id.
The
presumption may be rebutted if there is “some reasonable basis to
believe that the [conduct] will be reinstated if the suit is
terminated.” Id. In evaluating whether a government actor benefits
from the presumption, courts analyze the following factors:
(1) whether the termination of the offending
conduct was unambiguous; (2) whether the
change in government policy or conduct appears
to be the result of substantial deliberation,
or is simply an attempt to manipulate
jurisdiction; and (3) whether the government
has consistently applied a new policy or
adhered to a new course of conduct.
Id. at 1322–23 (internal quotation marks omitted). With respect to
the first two factors, the timing of the government actor’s
voluntary cessation of the complained-of conduct is relevant. Id.
at 1323. See also Rich, 716 F.3d at 531-32 (“[T]he timing and
content of the decision are . . . relevant in assessing whether
the
defendant's
‘termination’
of
the
challenged
conduct
is
sufficiently ‘unambiguous' to warrant application of the . . .
presumption in favor of governmental entities.”) (alterations in
original).
Voluntary cessation likely will not moot a controversy if the
government actor provides no assurance it will not revert to its
former ways after the litigation ends, or if the circumstances
30
suggest the defendant voluntarily ceased the offending conduct to
avoid litigation. See id. (holding the FDOC failed to carry its
burden because the policy change was made only after the plaintiff
filed a counseled brief, and officials continued to defend the
conduct as constitutional); Jager v. Douglas Cty. Sch. Dist., 862
F.2d 824, 834 (11th Cir. 1989) (holding the plaintiff’s request
for injunctive relief was not moot because the defendant ceased
the
conduct
only
under
threat
of
litigation
and
continued
throughout the litigation to argue the complained-of conduct was
constitutional). See also Wooten, 747 F.3d at 1323-24 (holding the
plaintiff’s request for injunctive relief was not moot even though
he was transferred to a state facility, because the bureau of
prisons
provided
no
assurance
the
plaintiff
would
not
be
transferred back to a high-security facility where the alleged
wrongful conduct occurred).
Defendants fail to meet their “formidable” burden to show the
conduct
of
which
Plaintiff
complains
has
been
“unambiguously
terminated” or that the allegedly wrongful conduct will not recur
after this litigation ends. See id. Under the circumstances, it
appears Defendants voluntarily changed Plaintiff’s confinement
conditions to avoid continued litigation. Of particular relevance
here is the timing of Defendants’ unexplained decision to change
Plaintiff’s cell and recreation status in July 2016. On February
25, 2016, the Court appointed counsel for Plaintiff (Doc. 18); on
31
May 23, 2016, Plaintiff’s counsel filed the operative complaint;
and by the end of June, Defendants Jones, McClellan, Palmer, and
Gay were served (Docs. 24-27). By mid-July, Plaintiff was moved to
an open bar cell and granted communal recreation privileges, with
no explanation. See Pl. Dep. at 23, 47.
Also of significance, Defendants offer no assurance they will
not again place Plaintiff on heightened security status in the
absence
of
a
documented
disciplinary
infraction.
In
fact,
Defendants steadfastly maintain the conditions of which Plaintiff
complains were not unconstitutional but were appropriately imposed
upon him under the Code. See Def. Motion at 7.
Even though Plaintiff is now at UCI, there is a “reasonable
basis to believe that the [conduct] will be reinstated if the suit
is terminated.” Wooten, 747 F.3d at 1322. Plaintiff sues the
Secretary of the FDOC, and he remains subject to the provisions of
the Rule Defendants cite to justify the allegedly wrongful conduct.
See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975)21
(holding
a
justiciable
controversy
existed
even
though
the
plaintiff was housed at a different correctional institution,
because the defendant, the head of the state prison system, did
not promise the plaintiff would not be returned to the prison where
The Eleventh Circuit adopts as binding precedent all
decisions of the former Fifth Circuit handed down prior to October
1, 1981. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209
(11th Cir. 1981).
21
32
the conduct occurred). Even more, Plaintiff’s contact visitation
privileges remain suspended.
Given Defendants continue to defend the alleged wrongful
behavior of which Plaintiff complains, they fail to demonstrate
that “behavior could not reasonably be expected to recur.” See
Wooten, 747 F.3d at 1322. Thus, it is not “absolutely clear that
[Plaintiff] no longer had any need of the judicial protection” he
seeks. Id. at 1319.
Accordingly, it is now
ORDERED:
1.
Plaintiff’s Motion for Summary Judgment (Doc. 86) is
DENIED.
2.
Defendants’ Motion for Summary Judgment (Doc. 87) is
DENIED.
3.
Pursuant to Rule 25(d) of the Federal Rules of Civil
Procedure,
Defendant
Mark
as
S.
the
Inch
is
Secretary
substituted
of
the
as
FDOC
the
with
proper
respect
party
to
the
official-capacity claim against former Secretary Jones. The Clerk
is directed to make the appropriate entries on the docket to
reflect the substitution.
4.
United
This case is referred to the Honorable James R. Klindt,
States
Magistrate
Judge,
to
conduct
a
settlement
conference. By January 23, 2020, the parties shall confer and
contact the chambers of Judge Klindt with proposed dates the
33
parties
and
their
counsel
are
available
for
a
settlement
conference.
DONE AND ORDERED at Jacksonville, Florida, this 13th day of
January, 2020.
Jax-6
c:
Counsel of Record
Judge Klindt’s Chambers
34
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