SUSSMAN v. SECRETARY DEPT OF CORRECTIONS DOC

Filing 34

ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. The magistrate judge's report and recommendation (ECF No. 24 ) is ADOPTED and incorporated by reference into this order. Respondent's motion (ECF No. 15 ) to dismiss for failure to exhaust administrative remedies is GRANTED. Petitioners § 2254 habeas petition is DISMISSED. The clerk shall enter judgment stating: "All claims are DISMISSED." The clerk shall close the case. A certificate of appealability is DENIED. Leave to appeal in forma pauperis is DENIED. Signed by SENIOR JUDGE WILLIAM STAFFORD on 11/19/2021. (kjw)

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

DAVID CHARLES SUSSMAN,
Petitioner,
v.

4:20cv414–WS/MAF

SECRETARY, DEPARTMENT OF
CORRECTIONS,
Respondent.

ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the court is the magistrate judge’s report and recommendation (ECF
No. 24) docketed August 23, 2021. The magistrate judge recommends that
Petitioner’s amended § 2254 petition for writ of habeas corpus be dismissed for
failure to exhaust administrative remedies and for lack of merit. Petitioner has filed
objections (ECF No. 33) to the report and recommendation. Respondent has not
filed a response to Petitioner’s objections.
The undersigned has reviewed the record, including Petitioner’s objections,
and has determined that the report and recommendation is due to be adopted. Like

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the magistrate judge, the undersigned not only concludes that Petitioner failed to
exhaust his administrative remedies, but also finds that Petitioner’s § 2254 habeas
petition—challenging a prison disciplinary report on First Amendment
grounds—fails on the merits. Whether the language used in Petitioner’s grievance
is construed as threatening or simply disrespectful,1 Respondent’s issuance of a
disciplinary report based on that language did not violate Petitioner’s constitutional
rights. Petitioner’s objections to the contrary are unpersuasive. See Mathews v.
Paynter, 752 F. Appx. 740, 744 (11th Cir. 2018) (holding that an inmate’s
disrespectful speech in a grievance violated Florida Administrative Code, Rule
33–601.314(1), and was not protected speech, thus requiring dismissal of the
inmate’s complaint for failure to state a claim).
Accordingly, it is ORDERED:
1. The magistrate judge’s report and recommendation (ECF No. 24) is
ADOPTED and incorporated by reference into this order.
2. Respondent’s motion (ECF No. 15) to dismiss for failure to exhaust
administrative remedies is GRANTED.

1

Florida Administrative Code, Rule 33–601.314, Section 1–3, prohibits
“[s]poken, written, or gestured threats.” Florida Administrative Code, Rule
33–601.314, Section 1–4, prohibits “[d]isrespect to officials, employees, or other
persons of constituted authority expressed by means of words, gestures, and the
like.”

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3. Petitioner’s § 2254 habeas petition is DISMISSED.
4. The clerk shall enter judgment stating: “All claims are DISMISSED.”
5. The clerk shall close the case.
6. A certificate of appealability is DENIED.
7. Leave to appeal in forma pauperis is DENIED.
DONE AND ORDERED this

19th

day of

November

, 2021.

s/ William Stafford
WILLIAM STAFFORD
SENIOR UNITED STATES DISTRICT JUDGE