WELLS v. MCNEILL
Filing
60
ORDER ADOPTING 57 REPORT AND RECOMMENDATION: granting Defendant's 48 Motion to Dismiss and case is DISMISSED as moot. Signed by SENIOR JUDGE MAURICE M PAUL on 11/20/2012. (jws)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
THOMAS PERRY WELLS, JR,
Plaintiff,
v.
CASE NO. 4:10-cv-00441-MP-CAS
KENNETH S. TUCKER, Secretary,
Florida Department of Corrections,
Defendant.
_____________________________/
ORDER
This cause comes on for consideration upon the Magistrate Judge's Report and
Recommendation dated September 18, 2012. (Doc. 57). The parties have been furnished a copy
of the Report and Recommendation and have been afforded an opportunity to file objections
pursuant to Title 28, United States Code, Section 636(b)(1). I have made a de novo
determination of plaintiff’s timely filed objections.
Plaintiff brings a claim that his First Amendment rights were infringed by Defendant’s
phone list rule which barred inmate phone calls to cell phone numbers. The Magistrate Judge
concluded that Defendant’s phone list rule amendment allowing for inmate calls to cell phones
moots Plaintiff’s claim. Plaintiff’s objections are mostly a restatement of arguments he
presented in his response (doc. 55) to Defendant’s motion to dismiss, (doc. 48) and add nothing
that would cause the Court to modify the Magistrate Judge’s findings in the Report and
Recommendation, (doc. 57). Plaintiff’s objections can be pared down to two main arguments.
First, Plaintiff challenges the Magistrate Judge’s finding that the rule change was the product of
substantial deliberation and not just an attempt to manipulate jurisdiction. (Doc. 58 at 2).
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Second, Plaintiff claims that Defendant has “failed to meet his heavy burden of making it
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”
(Doc. 58 at 3). Both of these objections are without merit.
Plaintiff first argues that the amendment of the phone list rule was not the product of
“substantial deliberation,” but was a reaction to Plaintiff’s lawsuit. (Doc. 58 at 2-3). However, as
the Magistrate Judge noted, (doc. 57 at 9-10), the Florida Department of Corrections amended
the rule pursuant to Florida’s Administrative Code, which included publicly publishing the
proposed rule and allowing for comment. Eleventh Circuit cases that have considered the
“substantial deliberation” requirement have looked to whether the government rule or policy was
changed quickly and secretly. See Harrell v. The Fla. Bar, 608 F.3d 1241, 1267 (11th Cir. 2010)
(holding the case not moot, finding the circumstances raised “a substantial possibility that ‘the
defendant has . . . changed course simply to deprive the court of jurisdiction,” where the
government body “acted in secrecy, meeting behind closed doors and, notably, failing to disclose
any basis for its decision”); Chandler v. Kopelousos, 2011 WL 1791299, *4 (M.D. Fla. 2011)
rev’d on other grounds by Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194 (11th Cir.
2012) (finding the case not moot where a detained motorist complained about a policy and the
agency immediately stopped practicing the policy in order to research whether the policy was
unlawful). The Court agrees with the Magistrate Judge’s conclusions that the open and slowmoving nature of the rule amendment process set forth in Florida’s Administrative code strongly
suggests that the amendment of the phone list rule was the product of “substantial deliberation.”
(Doc. 57 at 9-11).
Plaintiff further claims that a gap of one year between the filing of his lawsuit and the
amending of the rule “does not preclude the probability that the amendment was initiated to
Case No: 4:10-cv-00441-MP-CAS
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divest this Court of jurisdiction, i.e., since such actions have been used as defensive
strategies/tactics in other cases.” (Doc. 58 at 3). While the time gap by itself does not preclude
the possibility that the amendment was initiated to divest this Court of jurisdiction, the other
factors relied on by the Magistrate Judge—the use of Florida’s Administrative Code, the process
of formal rule amendment commencing after the release of a Report and Recommendation
favorable to Defendant, and the presumption afforded to the government in mootness
inquiries—support a finding that the amendment was not initiated to divest the Court of
jurisdiction.
Additionally, Plaintiff claims that “merely because the Defendant initiated the process to
amend the rule on the heels of the issuance of a favorable report and recommendation [sic] does
not clearly suggest that it wasn’t an effort to manipulate this Court’s jurisdiction, i.e., since the
Defendant had no way of knowing, with absolute certainty, that said report and recommendation
would’ve been adopted by the Court, in fact, it was partially rejected and the Defendant’s motion
for summary judgment was denied in part.” (Doc. 58 at 3). Similar to the time gap objection, the
timing of the rule amendment following a favorable Report and Recommendation, by itself, does
not preclude the possibility that the amendment was initiated to divest this Court of jurisdiction;
however, it does provide support for the Magistrate Judge’s conclusion that the rule amendment
was not initiated to divest this Court of jurisdiction. This conclusion is further buttressed by the
other factors relied on by the Magistrate Judge: the use of formal rule-making procedures via
Florida’s Administrative Code and the presumption afforded to the government in mootness
inquiries. (Doc. 57 at 10-12). In sum, Plaintiff’s objections to the Magistrate Judge’s finding
that the rule change was the product of “substantial deliberation” and not just an attempt to
manipulate jurisdiction are without merit.
Case No: 4:10-cv-00441-MP-CAS
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In his second line of reasoning, Plaintiff claims that Defendant has “failed to meet his
heavy burden of making it absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” (Doc. 58 at 3). As the Magistrate Judge explained, however,
“governmental entities and officials have been given considerably more leeway than private
parties in the presumption that they are unlikely to resume illegal activities,” and “the Eleventh
Circuit has applied a rebuttable presumption in favor of government defendants.” (Doc. 57 at 8,
n. 2) (internal citations and quotations omitted). Plaintiff has not shown any convincing
evidence to overcome this presumption in favor of Defendant. As persuasively articulated by the
Magistrate Judge:
Defendant has advised on the record that it does not commit to the amended rule
remaining in place permanently and that it must evaluate how effective the rule is
against the security interests presented. Nevertheless, the same position could be
said for nearly every rule that is enacted: what seemed like a good idea at the
time, in principle, may need adjustments and refinements to its practical
application. The Department’s amended rule is now in effect, and it is reasonable
to believe that the Department will move forward and make changes as may be
needed to ensure safety, while preserving the intended purpose. Yet considering
the advancements made in technology, it is unlikely that the amended rule cannot
be tweaked enough to enable its continued existence, notwithstanding the valid
security interests put forth by the Department.
(Doc. 57 at 10). The Court agrees with this analysis; hence, Plaintiff’s objection concerning the
possibility of a reversion by Defendant regarding the phone list rule is meritless.
Having considered the Report and Recommendation, and any objections thereto timely
filed, I have determined that the Report and Recommendation should be adopted.
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
The magistrate judge’s Report and Recommendation is adopted and incorporated
by reference in this order.
Case No: 4:10-cv-00441-MP-CAS
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2.
Defendant's motion to dismiss (doc. 48) is GRANTED and this case is
DISMISSED as moot.
DONE AND ORDERED this
20th day of November, 2012
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 4:10-cv-00441-MP-CAS
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