JAMES v. JONES

Filing 24

ORDER OF DISMISSAL - The second report and recommendation is ACCEPTED. The clerk must enter judgment stating, "The plaintiff Alphonso James, Jr.'s claims against the defendant Julie L. Jones, in her official capacity as Secretary of the Florida Department of Corrections, are dismissed with prejudice." The clerk must close the file. Signed by JUDGE ROBERT L HINKLE on 8/31/2015. (tdl)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

ALPHONSO JAMES, SR.,
Plaintiff,
v.

CASE NO. 4:15cv173-RH/CAS

JULIE L. JONES,
Defendant.
___________________________/
ORDER OF DISMISSAL
The plaintiff is a prisoner in the Florida Department of Corrections. He
asserts a claim under Florida law based on the Department’s insistence that he cut
his hair and beard. He says this violated the First Amendment and that, as a result,
state law provides a cause of action.
As set out in the order denying the motion to remand, ECF No. 16, the
complaint is properly understood to seek relief only under state law. Even so,
federal jurisdiction exists, because the well-pleaded complaint necessarily requires
for its determination a ruling on an issue of federal law.

Case No. 4:15cv173-RH/CAS

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The case is before the court on the magistrate judge’s second report and
recommendation, ECF No. 22, and the objections, ECF No. 23. I have reviewed
de novo the issues raised by the objections.
The report and recommendation correctly concludes that the complaint
should be dismissed. The dispositive issue is sovereign immunity. As correctly set
out in the report and recommendation, the State of Florida has waived its immunity
for operational-level acts but not for planning-level acts. A bad haircut or
negligent determination of whether a specific inmate’s hair is longer than the rules
allow is an operational-level act. The determination of whether safety and good
order require inmates to cut their hair and override religious objections is a
planning-level decision. So the complaint must be dismissed.
Two other grounds for dismissal are cited in the report and recommendation.
First, as the report and recommendation notes, under Florida pleading
standards, a plaintiff who asserts a claim against the state must allege compliance
with the notice requirement of Florida Statutes § 768.28. But under Federal Rule
of Civil Procedure 9(c), compliance with conditions precedent may be alleged
generally. In a federal proceeding, even one in which state law supplies the rule of
decision, a federal rule ordinarily controls over a contrary state procedure. See,
e.g., Lisk v. Lumber One Wood Preserving, LLC, 792 F.3d 1331 (11th Cir. 2015).
Because dismissal is appropriate here based on sovereign immunity, no ruling is

Case No. 4:15cv173-RH/CAS

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needed on whether the complaint also could be dismissed for failure to sufficiently
plead compliance with the 768.28 notice provision.
Second, the report and recommendation concludes that any federal claim
could be dismissed for failure to exhaust administrative remedies. In fact,
however, the plaintiff has unequivocally renounced any effort to obtain relief under
federal law. So there is no federal claim to dismiss. (The case is here—federal
jurisdiction exists—because the claim for relief under state law requires a
determination of an issue of federal law. So the state claim “arises under” federal
law for jurisdictional purposes, even though the plaintiff does not seek relief under
federal law.) This makes it unnecessary to decide whether any federal claim would
properly be dismissed for failure to exhaust.
For these reasons,
IT IS ORDERED:
1.

The second report and recommendation is ACCEPTED.

2.

The clerk must enter judgment stating, “The plaintiff Alphonso James,

Jr.’s claims against the defendant Julie L. Jones, in her official capacity as
Secretary of the Florida Department of Corrections, are dismissed with prejudice.”
3.

The clerk must close the file.

SO ORDERED on August 31, 2015.
s/Robert L. Hinkle
United States District Judge
Case No. 4:15cv173-RH/CAS