Johnson v. Cert et al
Filing
32
ORDER dismissing without prejudice Defendant Kenneth Cert; granting 29 Motion to Dismiss as stated in the Order; dismissing with prejudice Defendant Patricia Rodgers; instructions to the Clerk. Signed by Judge Brian J. Davis on 4/13/2017. (LDO)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FRANK JOHNSON,
Plaintiff,
v.
Case No. 3:15-cv-1487-J-39JBT
KENNETH CERT, et al.,
Defendants.
________________________
ORDER
I. Status
Plaintiff initiated this case by filing a Complaint (Doc. 1). He is proceeding on an
Amended Complaint (Doc. 5). He raises a due process claim pursuant to 42 U.S.C. § 1983
and the Fourteenth Amendment to the United States Constitution.
He names as
Defendants Kenneth Cert, an Investigation Sergeant, and Patricia Rodgers, a Senior
Classification Officer.
Plaintiff is an inmate confined in the Florida Department of Corrections at Lake
Correctional Institution. He provides the following Statement of Claim:
The actions of defendants Cert, and Rodgers deprived
the plaintiff of his right to an adequate investigation in a
disciplinary hearing, the right to present documentary evidence
in his defense, and the right to and [sic] impartial decisionmaker, in violation of the plaintiff's procedural due process
rights under the Fourteenth Amendment of the United States
Constitution.
Amended Complaint at 4.
Plaintiff alleges that on February 23, 2014, at South Bay Correctional Institution,
Correctional Officer Dormeus claimed that Plaintiff assaulted him. Id. at 4-5. Plaintiff was
placed in administrative confinement pending an investigation. Id. at 5. On March 5, 2014,
Defendant Cert served Plaintiff with a disciplinary report, charging him with assault or
attempted assault of a correctional officer. Id. Plaintiff requested an administrative security
videotape as evidence, identifying three security cameras on form DC6-151.
Id.
On March 11, 2014, Plaintiff received a disciplinary hearing before Defendant
Rodgers and Lieutenant Cole. Id. After the charges were read, Plaintiff pled not guilty and
made a statement denying the charge. Id. Plaintiff asked Defendant Rodgers to produce
the security videotape findings. Id.
Plaintiff claims the DC6-2028 document concerning the disposition of videotape
evidence is incomplete and that Defendant Cert failed in his investigative duties requiring
he conduct an adequate investigation, including a thorough review of the requested
videotape and the making of findings on the form DC6-2028 as to why the videotape did
or did not support the defense. Id. at 6. Plaintiff also claims that Defendant Rodgers did
not provide Plaintiff with a valid reason for relying on an incomplete DC6-2028 documentary
evidence form, and she failed to postpone the proceeding in order to require further
investigation. Id. Plaintiff asserts that Defendant Rodgers simply relied on the officer's
statement contained in the disciplinary report. Id.
Plaintiff alleges that the disciplinary team based its decision of guilt on the
correctional officer's statement and evidence presented at the hearing. Id. He also alleges
that Defendant Rodgers provided a false statement that the team relied on the identified
tape or the capabilities of the particular taping equipment, and found that the tape
requested does not provide evidence to support Plaintiff's defense. Id. Plaintiff contends
that the requested videotape was never reviewed by Defendants Cert or Rodgers, the
2
investigation was incomplete, and the only evidence presented at the hearing was the
disciplinary report. Id.
Plaintiff states that he was found guilty and sentenced to 60 days of disciplinary
confinement. Id. at 7. Thereafter, he was sent to unit level one, the most restrictive special
housing level, in which he was denied certain privileges regularly received in the general
prison population. Id. He was confined to a cell for approximately 22 hours per day, being
allowed to exercise three times per week, for two hours each exercise period, and
permitted to shower three times per week. Id. He compares this to general population with
daily outdoor exercise and social interaction and showers seven times per week. Id. He
also complains that Special Housing Unit (SHU) inmates have restricted visitation, library,
telephone, and canteen privileges. Id. He states he had limited hygiene and cleaning
products, and other activities were restricted, including school, religious services, group
meals, and canteen privileges. Id. Plaintiff was in the SHU for 539 days. Id. As relief,
Plaintiff seeks compensatory damages, punitive damages, and any additional relief the
Court deems just, proper, and equitable. Id. at 8.
II. Defendant Kenneth Cert
This case has been pending since December 16, 2015. Plaintiff is not proceeding
as a pauper. The Court directed that all Defendants be served on or before March 15,
2016, and proof of service and documents reflecting proper, completed service be provided
to the Court by March 22, 2016. Order (Doc. 4). Plaintiff was warned that failure to provide
proof of proper service for a particular Defendant or failure to show good cause for the
failure to effect service would result in the dismissal of that Defendant from this action
3
without further notice.1 Id. Plaintiff failed to perfect service of process upon Defendant
Cert.
The record shows that the process server returned unexecuted the service
documents for Defendant Cert. (Docs. 7 & 8). Although Plaintiff stated that he would
remain diligent and attempt to locate Defendant Cert (Doc. 8), the record demonstrates that
as of the date of this order, Plaintiff has not provided proof of proper service for Defendant
Cert, nor has Plaintiff shown good cause for the failure to effect service upon him.
Therefore, Defendant Cert will be dismissed without prejudice from this action.
III. Motion to Dismiss
"To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). "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." Id. (citing Twombly, 550 U.S. at 556). "[T]he tenet that a court must accept as
true all of the allegations contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555).
Before the Court is Defendant Rodgers' Amended Motion to Dismiss (Motion) (Doc.
29). Defendant Rodgers seeks dismissal of the claims against her as barred by the statute
of limitations and unexhausted.
She also claims that Plaintiff is not entitled to
compensatory and punitive damages. Finally, she asserts that Plaintiff does not have a
1
Plaintiff filed his Amended Complaint on February 18, 2016.
4
liberty interest sufficient to trigger due process protection because he is serving a life
sentence, and he has failed to demonstrate a significant or atypical hardship necessary to
invoke the Due Process Clause.
IV. Statute of Limitations
Defendant Rodgers argues that the applicable statute of limitations is the one-year
limitation period found in Florida Statute section 95.11(5)(g), which states in pertinent part:
“[A]n action brought by or on behalf of a prisoner[2] . . . relating to the conditions of the
prisoner’s confinement” must be brought within one year. Plaintiff filed a response in
opposition to the Motion, arguing that the applicable statute of limitations is the four-year
limitations period found in Florida Statute section 768.28(14). See Plaintiff’s Response to
Defendant Rodgers' Amended Motion to Dismiss (Doc. 30).
Defendant Rodgers, relying on Green v. Cottrell, 204 So.3d 22 (Fla. 2016), requests
that this Court depart from the traditional application of the four-year statute of limitations
because Plaintiff has not claimed a physical injury. In Green, the plaintiff raised claims
under Florida law of negligence and intentional infliction of emotional distress, but he also
raised federal law claims against the jail employees which the circuit court found were
governed by the Prison Litigation Reform Act and were unexhausted. The Supreme Court
of Florida addressed the statute of limitations issue with regard to the state law claims, not
the federal claims.3
2
The term prisoner is defined as “a person who has been convicted of a crime and is
incarcerated for that crime or who is being held in custody pending extradition or
sentencing.” Fla. Stat. § 57.085(1).
3
The Supreme Court of Florida held that the circuit court erroneously dismissed the
federal law claims for failure to exhaust administrative remedies. Green, 204 So.3d at 31.
5
The Supreme Court of Florida stated that "unless the state law claims raised by
Green fall under section 95.11(5)(g), the four-year statute of limitations in section
768.28(14) is applicable to his action." Id. at 27.
The Green case, on which
Defendant Rodgers heavily relies, applied the four-year limitations period to state law
claims "where . . . a prisoner files an action alleging that he suffered physical injury due to
the negligent or wrongful acts or omissions of the employees of a government entity[;]"
however, the court found if the prisoner alleges mental or emotional injury alone, the oneyear limitations period is applicable to the state-law claim. Id. at 29. Thus, Green does not
mandate that this Court apply the one-year limitation period to Plaintiff’s federal claims.4
“Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations
period governing personal injury actions in the state where the action is brought.” Wellons
v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014) (citation omitted), cert.
denied, 134 S.Ct. 2838 (2014); see Owens v. Okure, 488 U.S. 235, 249-50 (1989) (“We
accordingly hold that where state law provides multiple statutes of limitations for personal
injury actions, courts considering § 1983 claims should borrow the general or residual
statute for personal injury actions.”). In Florida, “[t]he applicable statute of limitations in a
§ 1983 lawsuit is the four-year Florida state statute of limitations for personal injuries.”
Omar v. Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003) (per curiam) (citations omitted); see
Van Poyck v. McCollum, 646 F.3d 865, 867 (11th Cir. 2011) (recognizing that a § 1983
4
See generally Wilkins v. Monastero, No. 3:09CV61/RV/MD, 2010 WL 3257731, at *3
(N.D. Fla. July 16, 2010), report and recommendation adopted, 2010 WL 3257726 (N.D.
Fla. Aug. 17, 2010) (“Although Congress permits federal courts to borrow state limitations
periods, neither Congress nor the Supreme Court has authorized states to unilaterally
create limitations periods specifically and exclusively applicable to section 1983 actions
within a particular state.”).
6
claim is subject to Florida’s four-year personal injury statute of limitations); Howard v.
Highsmith, No. 8:10-cv-1533-T-30TGW, 2011 WL 535863, at * 3 (M.D. Fla. Oct. 31, 2011)
(recognizing that in Rogers v. Judd, 389 F. App'x 983 (11th Cir. 2010) (per curiam), the
Eleventh Circuit applied the one-year limitation period in section 95.11(5)(g) to a prisoner's
state law claims, but not to the prisoner's Eighth Amendment claim); City of Hialeah, Fla.
v. Rojas, 311 F.3d 1096, 1103 (11th Cir. 2002) (“Section 1983 claims are governed by the
forum state’s residual personal injury statute of limitations, which in Florida is four years.”).
Plaintiff does not raise a state law claim in his Amended Complaint. Upon review,
this Court disagrees with Defendant Rodgers as to the applicability of the one-year
limitation period to a federal claim of constitutional deprivation. As to Plaintiff’s federal due
process claim under § 1983, this Court is not inclined to depart from the traditional
application of the four-year statute of limitations.
See Ealy v. GEO Grp., Inc., No.
14-14199, 2016 WL 3553141, at *1 (11th Cir. June 30, 2016) (“This Court has on several
occasions applied the four-year residual limitations period under Florida’s personal injury
statute . . . to 42 U.S.C. § 1983 claims.”); Hamze v. Cummings, No. 15-10868, 2016 WL
3383373, at *3 (11th Cir. June 20, 2016) (applying Florida’s four-year statute of limitations
to a claim for failure to protect brought by a pretrial detainee pursuant to § 1983); Ellison
v. Lester, 275 F. App'x 900, (11th Cir. 2008) (per curiam) (reversing the district court's
finding of untimeliness in a section 1983 case, finding the four-year statute of limitations
applicable to section 1983 claims arising in Florida).
Therefore, Defendant Rodgers' Motion, claiming the case was filed beyond the
statute of limitations, is due to be denied.
V. Exhaustion of Administrative Remedies
7
Defendant Rodgers contends that Plaintiff failed to exhaust his administrative
remedies prior to filing suit regarding his due process claim, and she seeks the dismissal
of that claim pursuant to 42 U.S.C. § 1997e(a). Motion at 3-6. More specifically, Defendant
Rodgers asserts that Plaintiff failed to properly exhaust the issue alleged in this lawsuit.
See Defendant's Exhibit B, Declaration of Justin Davis (Declaration) (Doc. 29-2 at 1). Upon
review, the motion to dismiss for failure to exhaust administrative remedies, a matter in
abatement, is due to be denied. An explanation follows.
The exhaustion of available administrative remedies is required before a 42 U.S.C.
§ 1983 action with respect to prison conditions by a prisoner may be initiated in this Court.
Guidelines for reviewing a prisoner civil rights action are set forth in the Prison Litigation
Reform Act:
Before a prisoner may bring a prison-conditions suit
under § 1983, the Prison Litigation Reform Act of 1995 requires
that he exhaust all available administrative remedies. 42
U.S.C. § 1997e(a); see also Booth v. Churner, 532 U.S. 731,
736, 121 S.Ct. 1819, 1822, 149 L.Ed.2d 958 (2001). The
purpose of the PLRA's exhaustion requirement is to "afford
corrections officials time and opportunity to address complaints
internally before allowing the initiation of a federal case."
Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 2387, 165
L.Ed.2d 368 (2006) (quotation omitted). To properly exhaust,
a prisoner must "[c]ompl[y] with prison grievance procedures."
Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 922–23, 166
L.Ed.2d 798 (2007).
Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1208 (11th Cir. 2015).
The Court will employ a two-step process in undertaking its review:
After a prisoner has exhausted the grievance
procedures, he may file suit under § 1983. In response to a
prisoner suit, defendants may bring a motion to dismiss and
raise as a defense the prisoner's failure to exhaust these
8
administrative remedies. See Turner,[5] 541 F.3d at 1081. In
Turner v. Burnside we established a two-step process for
resolving motions to dismiss prisoner lawsuits for failure to
exhaust. 541 F.3d at 1082. First, district courts look to the
factual allegations in the motion to dismiss and those in the
prisoner's response and accept the prisoner's view of the facts
as true. The court should dismiss if the facts as stated by the
prisoner show a failure to exhaust. Id. Second, if dismissal is
not warranted on the prisoner's view of the facts, the court
makes specific findings to resolve disputes of fact, and should
dismiss if, based on those findings, defendants have shown a
failure to exhaust. Id. at 1082–83; see also id. at 1082
(explaining that defendants bear the burden of showing a
failure to exhaust).
Whatley, 802 F.3d at 1209.
Several factors guide the Court. The Court recognizes that exhaustion of available
administrative remedies is "a precondition to an adjudication on the merits" and is
mandatory under the Prison Litigation Reform Act. Bryant v. Rich, 530 F.3d 1368, 1374
(11th Cir.), cert. denied, 555 U.S. 1074 (2008); Jones v. Bock, 549 U.S. 199, 211 (2007);
Woodford v. Ngo, 548 U.S. 81, 85 (2006) ("Exhaustion is no longer left to the discretion of
the district court, but is mandatory.") (citation omitted). The Supreme Court has stated that
"failure to exhaust is an affirmative defense under the PLRA[.]" Jones v. Bock, 549 U.S.
at 216. However, "the PLRA exhaustion requirement is not jurisdictional[.]" Woodford v.
Ngo, 548 U.S. at 101. See Turner v. Burnside, 541 F.3d 1077, 1082 (11th Cir. 2008)
(recognizing that the defense "is not a jurisdictional matter").
Of note, a prisoner must completely exhaust his remedies prior to initiating a suit in
federal court. If he fails to complete the process, the civil rights complaint must be
dismissed. This is true even if he thereafter exhausts his administrative remedies after
5
Turner v. Burnside, 541 F.3d 1077 (11th Cir. 2008).
9
initiating his action in federal court. See Oriakhi v. United States, 165 F. App'x 991, 993
(3d Cir. 2006) (per curiam); Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); McKinney
v. Carey, 311 F.3d 1198, 1200-01 (9th Cir. 2002) (per curiam); Medina-Claudio v.
Rodiguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Jackson v. Dist. of Columbia, 254 F.3d
262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Perez
v. Wisconsin Dep't of Corr., 182 F.3d 532, 538 (7th Cir. 1999).
Additionally, "the PLRA exhaustion requirement requires proper exhaustion."
Woodford, 548 U.S at 93.
Because exhaustion requirements are designed to deal with
parties who do not want to exhaust, administrative law creates
an incentive for these parties to do what they would otherwise
prefer not to do, namely, to give the agency a fair and full
opportunity to adjudicate their claims. Administrative law does
this by requiring proper exhaustion of administrative remedies,
which "means using all steps that the agency holds out, and
doing so properly (so that the agency addresses the issues on
the merits)." Pozo,[6] 286 F.3d, at 1024. . . .
Id. at 90. Also of significance, "[p]roper exhaustion demands compliance with an agency's
deadlines and other critical procedural rules." Id.
Again, Plaintiff is not required to plead exhaustion. Plaintiff, in his Reply Response
to Defendant's Motion to Dismiss (Reply) (Doc. 23), states that he exhausted his
administrative remedies and references the re-filed appeal to the Secretary dated April 30,
2014. Reply at 3; Plaintiff's Exhibit C (Doc. 23-3). He alleges that he re-filed his appeal to
the Secretary in a timely manner and delivered the appeal to prison officials for mailing on
April 30, 2014. Reply at 3.
6
Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir.), cert. denied, 537 U.S. 949 (2002).
10
There are disputed issues of fact as to whether Plaintiff exhausted all available
administrative remedies. Thus, the Court must now make findings on the disputed issues
of fact to decide whether he properly exhausted his administrative remedies.7
T h e
Florida Department of Corrections (FDOC) provides an internal grievance procedure. See
Chapter 33-103, Florida Administrative Code (F.A.C.). Thus, to determine whether Plaintiff
exhausted his administrative remedies, this Court must examine relevant documents to
determine whether the incidents in question were grieved. If these incidents were grieved
and the documents complied with the deadlines and other procedural rules as set forth in
the F.A.C., the issues raised therein are exhausted.
Generally, the FDOC provides a three-step grievance procedure. The Eleventh
Circuit succinctly described the administrative grievance procedure available to the inmates
confined in the Florida penal system, including the procedure for medical grievances:
In Florida, the grievance process consists of a
three-step procedure. An inmate must first file an "informal
grievance ... to the staff member who is responsible in the
particular area of the problem." Fla. Admin. Code Ann. §
33–103.005(1). The second step requires the inmate file a
formal grievance with the warden. Id. § 33–103.006(1)(a). If the
inmate is unsuccessful at this point, he may submit an appeal
to the Secretary of the DOC. Id. § 33–103.007.
Medical grievances require only a two-step procedure:
the inmate must file a formal grievance at the institutional level
with the chief health officer. If the inmate is unsuccessful, he
may file an appeal with the Secretary. Id. § 33–103.008.
7
Since the parties have not requested an evidentiary hearing on this issue and they
have submitted evidence for the Court's consideration, the Court proceeds to resolve the
material questions of fact based on the documents before the Court. Bryant, 530 F.3d
1377 n.16 (recognizing that a district court may resolve material questions of fact on the
submitted papers when addressing the Prison Litigation Reform Act's exhaustion of
remedies requirement).
11
Kozuh v. Nichols, 185 F. App'x 874, 877 (11th Cir. 2006) (per curiam), cert. denied, 549
U.S. 1222 (2007).
Defendant Rodgers contends that Plaintiff filed two grievance appeals related to the
disciplinary report received February 23, 2014, log numbers 14-6-10387 and 14-6-12138.
Motion at 5; Declaration. Defendant Rodgers asserts that these grievance appeals did not
constitute exhaustion because they were returned without action. See Defendant's Exhibit
B (Doc. 29-2 at 4, 17). To challenge the Defendant's position, Plaintiff, in his Reply,
provides an additional grievance appeal that he submitted to the Secretary pertaining to his
disciplinary proceeding. Plaintiff's Exhibit C (Doc. 23-3).
Plaintiff contends that the record shows that on April 30, 2014, Plaintiff submitted to
the Secretary a re-filed Request for Administrative Remedy or Appeal (Doc. 23-3), labeled
"Re-filed Appeal." Id. Plaintiff explains that he "re-filed his appeal to the Secretary of
FDOC in a timely manner after correcting the stated deficiency in accordance with F.A.C.
Rule 33-103.014(1)(2)(5) and delivered the appeal to prison officials for mailing April 30,
2014 (See Exhibit C)[.]" Reply at 3. Plaintiff did not receive a response to this re-filed
appeal. Id. As a result, on July 16, 2015, he filed another grievance appeal to the
Secretary complaining about the lack of a response to his re-filed appeal. Plaintiff's Exhibit
D (Doc. 23-4). This grievance appeal was returned without action as previously addressed
in appeal log number 14-6-13087. Plaintiff's Exhibit E (Doc. 23-5).
In light of Plaintiff's submission of the re-filed appeal complaining about the
disciplinary proceeding, the Court is not convinced that the Defendant has provided
sufficient supporting documents demonstrating complete lack of exhaustion. Based on all
reasonable inferences, Plaintiff has shown that he properly re-filed the appeal of the
12
disciplinary proceeding. See Defendant's Exhibit B (Doc. 29-2 at 17) (noting that Plaintiff
could file a new appeal and the re-filed appeal would be addressed if within the time frame
and other requirements established by rule). Based on the record before the Court, the
Court is unable to conclude that Plaintiff failed to exhaust his administrative remedies in
compliance with the procedural rules. Therefore, the Court concludes that Rodgers' Motion
should be denied with regard to the assertion that Plaintiff failed to exhaust his
administrative remedies.
It appears that Plaintiff attempted to avail himself of the
administrative grievances process and he sufficiently and adequately raised his claim
through the administrative grievance process.
VI. Compensatory or Punitive Damages
Defendant Rodgers moves to dismiss Plaintiff's claim for compensatory and punitive
damages. Motion at 6-9. In Napier v. Preslicka, 314 F.3d 528, 531-32 (11th Cir. 2002),
cert. denied, 540 U.S. 1112 (2004), the Eleventh Circuit addressed the requirements of
1997e(e):
Subsection (e) of 42 U.S.C. § 1997e states that "[n]o
Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of
physical injury." This statute is intended to reduce the number
of frivolous cases filed by imprisoned plaintiffs, who have little
to lose and excessive amounts of free time with which to
pursue their complaints. See Harris v. Garner, 216 F.3d 970,
976-79 (11th Cir. 2000) (en banc) (surveying the legislative
history of the PLRA). An action barred by § 1997e(e) is barred
only during the imprisonment of the plaintiff; therefore, such
action should be dismissed without prejudice by the district
court, allowing the prisoner to bring his claim once released
and, presumably, once the litigation cost-benefit balance is
restored to normal. Id. at 980.
13
Tracking the language of the statute, § 1997e(e) applies
only to lawsuits involving (1) Federal civil actions (2) brought by
a prisoner (3) for mental or emotional injury (4) suffered while
in custody. In Harris, we decided that the phrase "Federal civil
action" means all federal claims, including constitutional claims.
216 F.3d at 984-85.
Plaintiff alleges no physical harm. Therefore, the action for compensatory and
punitive damages is barred by 42 U.S.C. § 1997e(e), as long as he remains incarcerated.
See Al-Amin v. Smith, 637 F.3d 1192, 1196-98 (11th Cir. 2011) (finding that compensatory
and punitive damages are precluded under the Prison Litigation Reform Act in a civil rights
action claiming a First Amendment violation, with no physical harm).
Of import, however, Plaintiff also seeks "[a]ny additional relief as this Court deem[s]
just, proper, and equitable." Amended Complaint at 8. Liberally construed, such a prayer
for relief could include a request for nominal damages. Hale v. Sec'y for Dep't of Corr., 345
F. App'x 489, 492 (11th Cir. 2009) (per curiam). Thus, Plaintiff could be entitled to nominal
damages if he prevailed at trial. As such, 42 U.S.C. § 1983 does not provide a basis for
dismissing the case at this time based on the request for damages.
VII. Due Process
Defendant Rodgers succinctly describes Plaintiff's due process claim, noting that
Plaintiff is claiming a violation of constitutional rights under the Fourteenth Amendment
because Rodgers participated on the disciplinary hearing team that found Plaintiff guilty of
assaulting an officer, with the disciplinary team relying on insufficient evidence and failing
to suspend the hearing for further investigation. Motion at 9. Of significance, Plaintiff is
serving a life sentence. Defendant's Exhibit A (Doc. 29-1). Therefore, he does not earn
gain time, and the disciplinary decision requiring forfeiture of 180 days of gain time had
14
absolutely no affect on Plaintiff's length of sentence. See Defendant's Exhibit B (Doc. 29-2
at 12). As such, Plaintiff does not have standing to seek expungement of his prison
disciplinary report with a loss of gain time because it does not affect the fact or duration of
his life sentence. Rowan v. Harris, 316 F. App'x 836, 838 (11th Cir. 2008) (per curiam)
("[A]s a life inmate in the Florida prison system, we fail to see how expungement of
Rowan's disciplinary record creates a justiciable case or controversy."), cert. denied, 555
U.S. 1000 (2008). See Batie v. Fla. Dep't of Corr., No. 1:06-cv-62-MP-AK, 2009 WL
1490683, at *3 (N.D. Fla. May 22, 2009) (noting that if a petitioner has completed the term
of disciplinary confinement at the time of the filing of the petition, the cause is moot unless
the disciplinary conviction affected the duration of imprisonment, which is not the case for
a life-sentenced inmate).
Apparently, Plaintiff recognizes this fact because he does not mention the forfeiture
of gain time in his Amended Complaint. He only references the punishment of 60 days
disciplinary confinement. Amended Complaint at 7. Plaintiff suggests, however, that he
satisfies the requirement of demonstrating a significant or atypical hardship necessary to
invoke the Due Process Clause because he was "subsequently placed in the most
restrictive special housing unit level (1) which further deprived the Plaintiff of certain
privileges and loss of limited liberty endured by prisoners in general population." Id. at 7.
This contention does not win the day. First of all, Plaintiff was not sentenced to SHU
by the disciplinary team. The record shows that the team sentenced him to a loss of 180
days of gain time and 60 days disciplinary confinement. Defendant's Exhibit B (Doc. 29-2
at 12).
15
Plaintiff relies on his subsequent placement on Close Management (SHU)
confinement, which is based on a classification decision to place an inmate apart from the
general population for reasons of security or the order and effective management of the
institution, to make his due process claim. See Rule 33-601.800(1)(d), Fla. Admin. Code;
Motion at 2 n.1. The most restrictive of these non-punitive Close Management levels is
CMI, "being the most restrictive single cell housing level." Rule 33-601.800(1)(e), Fla.
Admin. Code. Placement on Close Management is a housing assignment made by the
Classification Team, not a disciplinary team. Rule 33-601.800(1)(k). Upon review, Plaintiff
has not alleged that Defendant Rodgers, or Defendant Cert for that matter, served on the
Classification Team that placed him on Close Management confinement or had anything
to do with his housing assignment or custody level.
Defendant Rodgers action of finding Plaintiff guilty of a disciplinary infraction and
sentencing him to 60 days of disciplinary confinement did not impose an atypical and
significant hardship on Plaintiff in relation to the ordinary incidents of prison life. See
Sandin v. Conner, 515 U.S. 472, 484 (1995) (holding that the prisoner's thirty-day
disciplinary segregation "did not present the type of atypical, significant deprivation in which
a State might conceivably create a liberty interest"); Wilson v. Blankenship, 163 F.3d 1284,
1295 n.17 (11th Cir. 1998) (finding the due process clause does not create a liberty interest
in being confined in general population rather than administrative segregation); Hewitt v.
Helms, 459 U.S. 460, 466 (1983) (receded from by Sandin) (an inmate has no liberty
interest in being confined in general population rather than in the more restrictive
atmosphere of administrative or disciplinary confinement).
16
Moreover, "[t]he Due Process Clause does not create an enforceable liberty interest
in freedom from restrictive confinement while a prisoner is incarcerated." Woodson v.
Whitehead, No. 16-13278, 2016 WL 7367780, at * (11th Cir. Dec. 20, 2016) (per curiam)
(citing Hewitt v. Helms, 459 U.S. at 468). Even assuming Defendant Rodgers had some
say in Plaintiff's placement in Close Management (SHU) confinement, the Due Process
Clause does not create a liberty interest in being confined in general population rather than
the more restrictive administrative segregation. Based on the reasoning of Sandin and its
progeny, Defendant Rodgers' Motion is due to be granted.
In light of the foregoing, it is
ORDERED:
1.
Defendant Kenneth Cert is DISMISSED from this action without prejudice.
2.
Defendant Rodgers' Amended Motion to Dismiss (Doc. 29) is GRANTED as
stated in the Order. Defendant Patricia Rodgers is DISMISSED from this action with
prejudice. The Clerk shall enter judgment accordingly.
3.
The Clerk shall terminate all pending motions and close this case.
DONE AND ORDERED in Jacksonville, Florida, this 13th day of April, 2016.
sa 4/11
c:
Frank Johnson
Counsel of Record
17
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