BAER v. SAPP
Filing
16
ORDER ADOPTING 11 REPORT AND RECOMMENDATION and directing clerk to close the file - plaintiffs retaliation claim is DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii), plaintiff's due process claims challen ging the re-written disciplinary report and subsequent disciplinary conviction for refusing to submit to a substance abuse test are DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii), subject to plaintiff satisfying Heck's favo rable termination requirement, and plaintiff's due process claim challenging the original disciplinary report and overturned disciplinary conviction for refusing to submit to a substance abuse test is DISMISSED WITH PREJUDICE under 28 U.S.C. § 1915(e)(2)(B)(ii); signed by SENIOR JUDGE MAURICE M PAUL on 9/26/12. (tss)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
STEVEN BAER,
Plaintiff,
v.
CASE NO. 5:11-cv-00248-MP-CJK
PAUL ABEL,
ROWLAND SAPP,
Defendants.
_____________________________/
ORDER
This matter is before the Court on Doc. 11, the Report and Recommendation of the
Magistrate Judge, recommending that this case be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The plaintiff has filed objections, Doc. 12, which the Court has reviewed.
The Court has made a de novo determination of those portions of the Report and
Recommendation to which objection is made. 28 U.S.C. § 636(b)(1). For the reasons which
follow, the Report and Recommendation is adopted and this case dismissed.
At the time of the events in this case, Plaintiff was a prisoner at Apalachee Correctional
Institution, West Unit. He has since been released from incarceration. The two defendants were
a correctional officer captain and correctional officer, respectively, at that institution. Below are
the facts as alleged by the Plaintiff.1 The incidents that gave rise to this suit began when
Plaintiff wrote a letter to the Florida Department of Health on August 4, 2008. In it, he alleged
1
Since “Federal Rule of Civil Procedure 12(b)(6) standards govern [a court's] review of
dismissals under section 1915(e)(2)(B)(ii),” Mitchell v. Farcass, 112 F.3d 1483, 1485 (11th
Cir.1997), this Court accepts as true all the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262
(11th Cir. 2004).
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that his and other dormitories at Apalachee Correctional Institution- West Unit were
overcrowded in violation of Florida Administrative Code (F.A.C.) Chapter 64E- 26.007(3). He
requested that the Health Department inspect and take action to correct the overcrowding. The
Department of Health forwarded Plaintiff's letter to the Florida Department of Corrections on
August 13, 2008.
Plaintiff was called to the front of II dorm at 4:00 p.m. on August 15, 2008, by Sergeant
Hartsfield, Apalachee C.I.'s safety officer. At count time and while the rest of the dorm watched,
Plaintiff and Sgt. Hartsfield discussed the bunk spacing and administrative codes. They were
unable to reach an agreement on the issue, and Sgt. Hartsfield left 15 minutes later. Plaintiff
was ordered to report to the Captain's office on August 17, 2008 at 9:00 a.m. There, Plaintiff
was questioned by Assistant Warden Atkins about the typing of the letter. Plaintiff responded
that his parents had typed it for him. During this conversation, Mr. Atkins expressed no interest
or concern about the substance of the letter, which was that the law was being violated and that
inmates were being subjected to illegal conditions.
Plaintiff was told not to report to his job in the Law Library on August 18, 2008, by his
dorm officer. In the afternoon he was served with a disciplinary report (DR) for lying to staff.
Mr. Atkins was the charging staff member, and had reviewed Plaintiff's telephone conversations
with his parents for the last several weeks and found a discrepancy with Plaintiff's statement. As
a result of Plaintiff's DR for lying to staff, he was sentenced on August 19, 2008 to 60 days
disciplinary squad, 60 days canteen restriction, and loss of his good adjustment transfer. He also
lost his job in the Law library.
Plaintiff wrote to the Inspector General's (IG) Office on or about August 26, 2008, as he
believed his DR was improper and had a retaliatory motive. He continued to express his
Case No: 5:11-cv-00248-MP-CJK
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intention to file for a writ of mandamus in his phone conversations and in the letter to the IG.
Plaintiff asked for help from the IG's Office as his DR Squad officer, Officer Johnson, was
denying him access to the law library by stating that he could not go unless he had a deadline.
This completely denied Plaintiff access and the ability to pursue a claim, and Mr. Johnson made
it known the matter was not open for discussion.
In the meantime, Plaintiff filed a medical grievance on or about August 22, 2008, because
he was sunburned from his work on DR Squad and Nurse Cox denied him sunscreen at sick call.
Plaintiff was called to report to the Captain's Office on September 10, 2008, at 1: 15 p.m.
Officer Sapp was present and told him to come inside. Officer Sapp strip-searched Plaintiff and
gave him a cup to provide a urine sample for a drug test. The reason for the test was not
disclosed at this time. Plaintiff reports that "Officer Sapp's behavior was suspicious as he was
conducting the test. He stared down Plaintiff at several points throughout the process. Officer
Sapp repeatedly asked if Plaintiff knew what the penalties were if he couldn't urinate." Doc. 1,
p. 4. Plaintiff was able to provide a urine sample that was slightly over halfway full. He asked
Officer Sapp if this was sufficient, as Mr. Sapp had not previously told him how much to give.
Mr. Sapp stated, "Is that all you got?" Plaintiff stated that it was all he could provide at the
moment.
Plaintiff was allowed two cups of water over the next hour as is required by the inmate
drug testing procedure. Officer Sapp led Plaintiff back into the bathroom, where he was to
resume providing a sample. Plaintiff noticed that the urine sample given earlier and set on the
urinal was poured out. He believed this to be a violation of procedure. Plaintiff was providing a
second sample when Officer Sapp stepped out of the room to supervise two other inmates. This
was a violation of the testing procedure, which states that inmates must be directly supervised (or
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watched in mirrors) while the test is in progress. Plaintiff filled the cup to the threads and called
for Officer Sapp. Mr. Sapp entered and said, "What are you yelling about?" Plaintiff showed
him the full cup, and Defendant said, "Where did you drab that up?" Plaintiff told Officer Sapp
that he had given a legitimate sample. Mr. Sapp took the cup from Plaintiff and began
examining it. Plaintiff finished getting dressed. Officer Sapp walked over to Plaintiff, holding up
the sample cup. There was now only a small amount of urine in the cup. Defendant said, "That
little bit right there - that's not enough." Plaintiff asked Mr. Sapp what happened to the rest of
the sample. Plaintiff told Officer Sapp that he had given him a full cup. Defendant Sapp stated,
"You have to give me 30 milliliters of urine. Are you refusing?" Plaintiff replied that he was not
refusing, had given Defendant a sample that was full to the threads, and one that was over
halfway full before that. Defendant Sapp pretended not to know what Plaintiff was talking
about, and placed him in handcuffs.
While escorting Plaintiff to confinement, Plaintiff and Officer Sapp encountered Officer
Johnson (Plaintiff's DR Squad officer) in the visitation park. Upon seeing Plaintiff in handcuffs,
Mr. Johnson said, "He likes to write things up!" Officer Sapp remarked, "Yeah, he already told
me he was going to write his way out of this one." Mr. Johnson replied, "And he'll put a lawsuit
on you!" Plaintiff alleges that he made none of these statements. Plaintiff was placed in
administrative confinement pending his disciplinary hearing at about 2:30 p.m. on September 10,
2008.
Plaintiff wrote a letter to his father describing the situation and his father called Inspector
General Paul Decker. The Inspector General's office is responsible for administering the drug
testing program, as well as conducting criminal investigations of staff and inmates. Inspectors
Clark and Lancaster interviewed Plaintiff on September 16, 2008 with regard to Plaintiff's
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allegations. The Inspectors questioned Plaintiff about the incident and pulled up a report on their
computer. They asked why Plaintiff sent money to another inmate, but never gave any other
justification for the test. It was at this meeting that Plaintiff learned that the test was "for cause",
and not random. Plaintiff explained to the Inspectors what he felt the motive for Officer Sapp's
actions were - the Plaintiff's activities as a law clerk and the Department of Health complaint. He
gave a sworn statement and the Inspectors left. See Case No. IG 08-1- 5713.
A hearing was held on September 18, 2008, in which Plaintiff was found guilty of
refusing to submit to a substance abuse test. The incident report containing the reason for the
test was denied to Plaintiff on the grounds of confidentiality. Plaintiff was sentenced to 60 days
disciplinary confinement, loss of 180 days gain time, and loss of visitation for 2 years. See log #
101-080689. Plaintiff claims he "actually lost a total of 250 days gain time due to 6 months (60
days) withholding and the loss of the month of the report (10 days)." Plaintiff appealed, and the
finding of guilt was overturned by Warden Palmer on October 14, 2008. See grievance log #
0809-102-173.
The disciplinary report was rewritten by Officer Sapp and served again on October 16,
2008. Inspectors Clark and Lancaster were called by Plaintiff as witnesses, both of whom stated
that they were not present at the test and did not have any information. Plaintiff was accused in
the rewritten DR of having red eyes and pacing. The DR did not state who observed him like
this. See log #101-080764. At the October 16 hearing, Plaintiff also renewed his request for the
incident report, from either the original or rewritten DR's. Classification Officer Maybardy read
from it, and it stated that Captain Abel was notified of a phone call where Plaintiff said "it is a
miracle that I haven't been drug tested in three years or I would be in confinement." This was
the first notice Plaintiff had that Captain Abel was involved with his disciplinary report, and
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came over a month after Plaintiff was charged. The person who supposedly saw Plaintiff with
red eyes and pacing was still not disclosed at the hearing. Later Plaintiff discovered that it was
alleged by Captain Abel in the incident report (No. 08-09-11-1384).
Plaintiff was again found guilty and again appealed. His grievance was denied on
November 19, 2008, by Assistant Warden Atkins. Mr. Atkins stated in the response that he
interviewed Captain Abel about Plaintiff's grievance. Defendant Abel told Mr. Atkins that he
was informed of a phone call Plaintiff had made on August 9, 2008 at 14:23:28 in which Plaintiff
had made the suspicious statement discussed above. Mr. Abel then claimed he called Plaintiff to
his office to interview him about said statement, and Plaintiff had red eyes and was unable to
stop pacing around to answer his questions. He claimed this was unusual based on his past
experiences of speaking with Plaintiff. See grievance log # 0811-102-002.
Plaintiff claims he never spoke to Captain Abel on September 10, 2008, and was never
interviewed by him about any conversation. Plaintiff claims, in fact, that he never has spoken to
Captain Paul Abel at any time. Plaintiff was presented with a transcript of the phone
conversation which provided the pretext for the drug test at his second meeting with Inspector
Clark on or about February 2, 2009. The Plaintiff claims that upon review, he realized that the
"allegedly suspicious statement was about Plaintiff's legal challenge to the drug testing
procedure." Doc. 1, p. 8. Inspector Clark also told Plaintiff that it sounded like "something you
were filing."
Plaintiff claims he actually served 61 days of disciplinary confinement and 19 days of
administrative confinement, for a total of 80 days, on the DR. Plaintiff attempts to show that the
time in disciplinary confinement was an “atypical and significant hardship on [him] in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293,
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2300 (1995) with the following description:
Plaintiff experienced conditions in confinement that were beyond
reprehensible and shocking to the conscience. He was confined at least 23 and ½
hours a day in a 9x11 cell with a cellmate. There he was deprived of his books,
radio, and most of his property and left with nothing to do but stare at the walls.
He was not provided with adequate clothing or bedding when the temperature
dropped to the 40s and 50s in late October and November, only two sheets and a
thin blanket that had to be made up on the bed by 7:00 a.m.
Plaintiff was also without hygiene items for part of his confinement time,
due to difficulty in obtaining soap, toothbrush, toothpaste, and toilet paper from
officers. Showers were only given three times a week and might not be given
then if there was a staff shortage.
At the East Unit, where Plaintiff spent over half of his confinement time,
the windows are painted over causing total sensory deprivation. Painting over cell
windows to block out light, as well as a view to the outside, served no legitimate
penological objective and only served to inflict punishment. Additionally,
inmates were not allowed to look through the cell door window into the hallway
or quad, meaning an inmate was limited to the walls in front of him. This caused
Plaintiff significant distress and psychological harm and aggravated his bipolar
disorder. Plaintiff saw a psychiatrist and started treatment with Prozac during this
time.
Plaintiff lost a significant amount of weight during the 80 days he spent in
confinement. He believes he lost 14 pounds, dropping from 188 to 174. Plaintiff
will verify this through discovery.
Plaintiff was deprived of the opportunity to visit with his father while he
was in confinement. Plaintiff's father moved to Eau Claire, Wisconsin around
mid-December of 2008, making visits very difficult and expensive. Plaintiff never
received another visit in his remaining 2 years and 8 months in the Department of
Corrections. Before Defendants' DR, Plaintiff had visited with his mother and
father about every four months.
Due to the circumstances of his confinement, Plaintiff was also not able to
enjoy the limited liberty afforded to normal prisoners. He was unable to work,
earn gain time toward his release, watch television, associate with other prisoners,
attend outdoor recreation in a congregate setting, attend meals with other
prisoners, and visit the Law Library. He was not able to contact his parents by
phone as he normally does weekly.
Doc. 1, pp. 8-9 (paragraph numbers omitted).
Case No: 5:11-cv-00248-MP-CJK
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Plaintiff brings the following claims in his complaint. Plaintiff first claimed that the
defendants violated his First Amendment rights by writing a false disciplinary report against him
in retaliation for plaintiff's letter to the Department of Health, his contact with the Inspector
General's Office or his administrative grievances. He next claims that
Defendants violated Plaintiff's Fourteenth Amendment right to substantive due
process by depriving Plaintiff of a fundamental constitutional right in a way that
shocks the conscience. By producing and maintaining a false disciplinary report
against Plaintiff, the Defendants denied him the limited liberty afforded prisoners,
the right to be free from physical and emotional harm in confinement, the right to
release early through gain time, and the rest of the injuries alleged [above].
Doc 1. p. 11.
Third, plaintiff claims that defendants violated his 14th Amendment right to the limited
procedural due process in prison disciplinary proceedings set out in Wolff v. McDonnell, 418
U.S. 539 (1974) because of various alleged defects in the disciplinary reports and hearings.
Finally, plaintiff claims that defendants violated his 14th Amendment right to procedural due
process by convicting him of a falsified disciplinary report.
Plaintiff seeks recovery for the mental and emotional anguish he suffered as a result of
the allegedly harsh conditions of disciplinary confinement, and for being required to spend 71
days more in prison than he otherwise would have without the disciplinary conviction. Plaintiff
requests the following damages: "no less than $125,000 against each defendant in compensatory
damages, and $125,000 against each defendant in punitive damages."
On November 9, 2011, the Magistrate Judge issued an order warning plaintiff that the
facts presented in his complaint failed to state a viable claim for relief under § 1983 as to the
named defendants. (Doc. 9). The Magistrate Judge provided plaintiff an opportunity to clarify his
allegations in an amended complaint, but plaintiff has declined to amend. (Doc. 10). Based on a
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second review of plaintiff’s allegations, the Magistrate Judge concluded that plaintiff’s
complaint fails to state a plausible § 1983 claim, and that this case should be dismissed. The
Report and Recommendation with these recommendation was entered as Doc. 11.
The Magistrate Judge first found that "plaintiff's allegations fail to raise plaintiff's
conclusion of a retaliatory motive above the speculative level " because (1) there was no specific
allegation that the Sapp and Abel were "aware of plaintiff’s letter to the Department of
Health, complaint to the IG’s Office, or medical grievance against Nurse Cox" and (2) "plaintiff
fails to allege facts from which it could reasonably be inferred that plaintiff’s complaints about
those other prison officials motivated Sapp and Abel to retaliate." Doc. 11, p. 9.
In so holding, however, the Report and Recommendation fails to consider the
contemporaneous conversation of Officer Sapp and another officer, where they discuss that
plaintiff "likes to write things up!" and had "already told me he was going to write his way out of
this one" and that "he'll put a lawsuit on you!" These statements provide evidence that Officer
Sapp was aware of plaintiff's previous written complaints and that the officer's disdain for these
complaints was in his mind during the events taking place in this case. Additionally plaintiff
alleges that he was questioned in Captain Abel's office about the letter to the Department of
Health on August 17, 2008, and that questioning resulted in no consideration of the
overcrowding discussed in the letter but did lead to a disciplinary report against plaintiff.
Captain Abel was also relied upon as the basis of the drug test, but this fact was not disclosed to
plaintiff until after the first disciplinary hearing. Thus, plaintiff plausibly alleges the causation
element of a retaliation claim against both Officer Sapp and Captain Abel. However, this claim
along with all of the others should be dismissed for different reasons.
First, with the exception of one claim, all of plaintiff's claims imply the invalidity of
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plaintiff’s disciplinary conviction on the re-written charge – a conviction that resulted in plaintiff
losing gain time and “leav[ing] prison 71 days later than he would have otherwise.” (Doc. 1, p.
11 ¶ 39). In Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), the
Supreme Court held:
[T]o recover damages for an allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would
render a conviction or sentence invalid, a 42 U.S.C. § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of
habeas corpus.
512 U.S. at 486-87, 114 S. Ct. at 2372. If the § 1983 action is brought prior to the invalidation
of the challenged conviction or sentence, the action must be dismissed as premature. Id. at 487,
114 S. Ct. at 2372. The Supreme Court has applied Heck to prisoners’ claims challenging prison
disciplinary actions. Edwards v. Balisok, 520 U.S. 641, 643-649, 117 S. Ct. 1584, 1586-89, 137
L. Ed. 2d 906 (1997) (holding that Heck applies to claims for relief that necessarily imply the
invalidity of disciplinary determinations affecting the duration of time to be served).
Furthermore, Heck applies even though the prisoner seeks monetary damages and not the
reinstatement of lost good-time credits flowing from the disciplinary action. Id., 520 U.S. at 646.
Simply put, if a judgment in plaintiff’s favor would be “at odds with his conviction or with the
State’s calculation of time to be served in accordance with the underlying sentence” Muhammad
v. Close, 540 U.S. 749, 754-55, 124 S. Ct. 1303, 1306, 158 L. Ed. 2d 32 (2004), plaintiff’s
claims must be dismissed unless plaintiff demonstrates that the disciplinary conviction has been
invalidated. Id.; see also Heck, 512 U.S. at 487, 114 S. Ct. at 2372.
Here, the plaintiff admits that the second disciplinary finding has not been invalidated
despite the plaintiff having two years of incarceration to attack the finding by habeas petition and
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despite being made aware of the requirements of Heck in other cases. Doc. 11, p. 13. The fact
that plaintiff is now released, and may not be able to rely on the habeas statute, is of no recourse
to plaintiff. Heck itself directs that "the principle barring collateral attacks—a longstanding and
deeply rooted feature of both the common law and our own jurisprudence—is not rendered
inapplicable by the fortuity that a convicted criminal is no longer incarcerated." Heck, 512 U.S.
at 490 n.10. Accordingly, the Court agrees with Magistrate Judge that all claims based on the
second disciplinary report are barred at this time by Heck.
As intimated above, one claim by plaintiff addresses the first disciplinary report, which
plaintiff did get overturned. Plaintiff complains that his due process rights were violated when
he was not told that Captain Abel was the witness against him and he was denied Captain Abel's
incident report prior to the first disciplinary report. Since plaintiff got this disciplinary finding
overturned, he did not lose any gain time. The only hardship he suffered that he isolates as being
caused by the first disciplinary report is 19 or 20 days in administrative confinement "“while
waiting for a hearing and after the first report was overturned by the Warden,” (doc. 1, p. 8 ¶
31)."
The Eleventh Circuit has held that a Florida prisoner's confinement in administrative
segregation for two months did not impose an atypical and significant hardship on the prisoner.
Rodgers v. Singeltary, 142 F.3d 1252, 1253 (11th Cir.1998). In recent unpublished opinions, the
court has held that a Florida prisoner's short sentences of disciplinary confinement did not trigger
due process protections. Smith v. Regional Director of Florida Dep't of Corrections, No.
09–11443, 2010 WL 447014, at *3 (11th Cir. Feb.10, 2010) (affirming dismissal of prisoner's §
1983 claims challenging 15– and 30–day disciplinary confinements on due process grounds;
plaintiff failed to allege any facts which could be liberally construed to show that the disciplinary
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confinements were a major disruption to his environment as compared to placement in the
general population); Shaarbay v. Palm Beach County Jail, No. 09–11294, 2009 WL 3401423, at
*2 (11th Cir. Oct.23, 2009) (holding that State's placement of prisoner in disciplinary
confinement for 30 days was neither “atypical” nor imposed a “significant hardship,” and
therefore did not constitute a due process violation. After full consideration of plaintiff's lengthy
description of his confinement, the Court finds no reason to distinguish plaintiff's disciplinary
confinement experience from those of the prisoners in those cases. Thus, his claim based on the
confinement after his initial disciplinary hearing but before his second is barred by Sandin v.
Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995). Accordingly it is hereby
ORDERED AND ADJUDGED:
1.
The Report and Recommendation of the Magistrate Judge is accepted and
incorporated herein.
2.
That plaintiff’s retaliation claim is DISMISSED WITH PREJUDICE under 28
U.S.C. § 1915(e)(2)(B)(ii). Plaintiff’s due process claims challenging the rewritten disciplinary report and subsequent disciplinary conviction for refusing to
submit to a substance abuse test are DISMISSED WITHOUT PREJUDICE under
28 U.S.C. § 1915(e)(2)(B)(ii), subject to plaintiff satisfying Heck’s favorable
termination requirement. Plaintiff’s due process claim challenging the original
disciplinary report and overturned disciplinary conviction for refusing to submit
to a substance abuse test is DISMISSED WITH PREJUDICE under 28 U.S.C. §
1915(e)(2)(B)(ii).
3.
The clerk is directed to close the file.
DONE AND ORDERED this 26th day of September, 2012
s/Maurice M. Paul
Maurice M. Paul, Senior District Judge
Case No: 5:11-cv-00248-MP-CJK
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