Opinion
Case No. 3:05-cv-565-J-32HTS.
September 10, 2008
ORDER
I. Status
On June 20, 2005, Plaintiff Hale, an inmate of the Florida penal system proceeding pro se and in forma pauperis, initiated this action by filing a Civil Rights Complaint Form (Doc. #1) (hereinafter Complaint) pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff filed an Appendix of Exhibits (Doc. #3) in support of his Complaint. On January 20, 2006, Plaintiff filed an Amended Complaint (Doc. #19), naming the following individuals as the Defendants: James R. McDonough, the Secretary of the Florida Department of Corrections; L.E. Griffis; D. Robinson; Garrett Heishman; Jeffrey Wainwright; Barry V. Reddish; Stephen Brunt; Joseph Thompson; Lieutenant Starling; R. Polk; Virgil Locke; Dawn Mallard; Jackie Adams; Orlester Dickens; and Charles Shockley. In the Amended Complaint, Plaintiff challenged his retention in close management (hereinafter CM) level one status at Florida State Prison (hereinafter FSP), claimed that the Defendants conspired to retain him on level one status in retaliation for his filing grievances and stated that his retention on level one status violated his Eighth Amendment right to be free from cruel and unusual punishment.
James R. McDonough was substituted as the proper party Defendant for James V. Crosby, Jr., pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. See Court's Order (Doc. #25), filed May 16, 2006.
On September 18, 2007, this Court partially granted the Motion to Dismiss (Doc. #49), filed by Defendants McDonough, Heishman, Dickens, Adams, Shockley, Locke, Brunt, Polk, Reddish, Mallard, Griffis, Starling, Thompson and Wainwright, and the Motion to Dismiss (Doc. #83), filed by Defendant Robinson, to the extent that (1) Plaintiff's claims against Defendants Dickens, Adams, Shockley, Brunt and Polk for denying his grievances were dismissed; (2) Plaintiff's claims for compensatory and punitive damages for mental or emotional injury against Defendants Griffis, Robinson, Heishman, Wainwright, Reddish, Brunt, Thompson, Starling, Polk, Locke, Mallard, Adams, Dickens and Shockley were found to be barred by § 1997e(e) as long as Plaintiff remains incarcerated, and therefore the claims against Defendants Griffis, Robinson, Heishman, Wainwright, Reddish, Brunt, Thompson, Starling, Polk, Locke, Mallard, Adams, Dickens and Shockley were dismissed without prejudice; and (3) Plaintiff's conspiracy claims against Defendants Griffis, Robinson, Heishman, Wainwright, Reddish, Brunt, Thompson, Starling, Polk, Locke, Mallard, Adams, Dickens and Shockley were dismissed without prejudice. See Court's Order (Doc. #84), filed September 18, 2007, at 23-24. Further, this Court dismissed Defendants Griffis, Robinson, Heishman, Wainwright, Reddish, Brunt, Thompson, Starling, Polk, Locke, Mallard, Adams, Dickens and Shockley from the action. Id. at 24.
In that same Order, the Court ordered Plaintiff to file a Second Amended Complaint in accordance with the instructions contained in the Order, noting that "Plaintiff's claim may be against Defendant McDonough only, and he may only request injunctive relief." Id. Specifically, the Court instructed Plaintiff as follows:
In the Amended Complaint, Plaintiff has not set forth allegations and/or claims concerning Defendant McDonough; however, he included him as a Defendant for the purpose of seeking injunctive relief.
For this reason, this Court will allow Plaintiff an opportunity to amend his complaint to articulate his claim against Defendant McDonough. In amending, Plaintiff should set forth facts in support of his claim against Defendant McDonough and should describe how Defendant McDonough allegedly violated his federal constitutional rights while he was incarcerated at Florida State Prison at the time of his second and third CM reviews (August 14, 2003, and February 26, 2004). Finally, Plaintiff should clarify the injunctive relief he requests from Defendant McDonough: whether it is for the promulgation of new CM rules or whether it is injunctive relief to specifically provide Plaintiff with review of his current CM status. Plaintiff must also allege the constitutional or other legal basis for any claim for injunctive relief.Id. at 22-23 (footnote omitted).
On December 26, 2007, this Court denied Plaintiff's motion for rehearing and granted Plaintiff additional time to file the Second Amended Complaint, again instructing Plaintiff that "Plaintiff's claim may be against Defendant McDonough only, and he may only request injunctive relief." See Court's Order (Doc. #93). On February 21, 2008, Plaintiff Hale filed a Second Amended Civil Rights Complaint Form (hereinafter Second Amended Complaint) (Doc. #95), in which he names, as the Defendant, James McDonough in his official capacity as the Secretary of the Florida Department Corrections. As reflected in the style of the case, Walter A. McNeil, the current Secretary of the Florida Department of Corrections, has been substituted as the proper party Defendant for James McDonough, pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure.
Before the Court is Defendant McNeil's Response to Plaintiff's Second Amended Complaint, construed by this Court as a Motion for Summary Judgment. See Defendant's Response to Plaintiff's Second Amended Complaint (hereinafter Motion for Summary Judgment) (Doc. #99), filed May 12, 2008; Court's Order (Doc. #101), filed June 2, 2008. Since Plaintiff is appearing pro se, the Court previously advised him of the provisions of Fed.R.Civ.P. 56 and gave him an opportunity to respond. See Court's Order (Doc. #101) at 1, paragraph 1; Order of Special Appointment; Service of Process Upon Defendants; Notice to Plaintiff (Doc. #26) (setting forth the provisions of Rule 56 of the Federal Rules of Civil Procedure), filed May 23, 2006, at 5-6. This Court granted Plaintiff additional time to respond, and Plaintiff filed Plaintiff's Reply to Defendant's Response to Plaintiff's Second Amended Complaint (Doc. #103) (hereinafter Plaintiff's Reply). Thus, the Motion for Summary Judgment is now ripe for review.
Defendant's exhibits, attached to the Motion for Summary Judgment (Doc. #99), will be hereinafter referred to as "Defendant's Ex."
II. Summary Judgment Standard
"Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Crawford v. Carroll, 529 F.3d 961, 964 (11th. Cir. 2008) (citing Fed.R.Civ.P. 56(c) andWilson v. B/E/Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004)).
The parties' respective burdens and the Court's responsibilities are outlined as follows:
The movant bears the responsibility for demonstrating the basis for the summary judgment motion. [Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).] A factual dispute alone is not enough to defeat a properly pled motion for summary judgment; only the existence of a genuine issue of material fact will preclude grant of summary judgment. Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (1986). An issue is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (citing Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir. 1993)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997). The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
"When a moving party has discharged its burden, the non-moving party must then 'go beyond the pleadings,' and by its own affidavits, or by 'depositions, answers to interrogatories, and admissions on file,' designate specific facts showing that there is a genuine issue for trial." Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (citing Celotex, 477 U.S. at 324, 106 S.Ct. 2548). If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003).Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306, 1313-14 (11th Cir. 2007).
"It is true that on a motion for summary judgment, all reasonable inferences must be made in favor of the non-moving party." Cuesta v. School Bd. of Miami-Dade County, 285 F.3d 962, 970 (11th Cir. 2002) (citation omitted). "A court need not permit a case to go to a jury, however, when the inferences that are drawn from the evidence, and upon which the non-movant relies, are 'implausible.'" Id. (citations omitted).
The United States Supreme Court has explained how to determine whether there is a genuine issue for trial.
At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a "genuine" dispute as to those facts. Fed. Rule Civ. Proc. 56(c). As we have emphasized, "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (footnote omitted). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.Scott v. Harris, 127 S.Ct. 1769, 1776 (2007).
III. Plaintiff's Allegations
In the Second Amended Complaint, Plaintiff Hale names the Secretary (Walter A. McNeil) of the Florida Department of Corrections (hereinafter DOC) only in his official capacity. Second Amended Complaint at 8. Plaintiff explains that the Defendant "did not personally injure" Plaintiff, but rather is sued only for injunctive relief as "the final decision maker" for the DOC. Id. Specifically, Plaintiff claims that the DOC's policies and procedures, or the lack thereof, injured him at his second and third CM reviews while at FSP and again at his most recent CM review at Charlotte Correctional Institution. Id. at 8-9. He asserts that, while at FSP, he unjustly spent over a year in CM level one status, the most restrictive level of CM, due to the DOC's policies and procedures or the lack thereof. Id. at 9. Further, he notes that he will spend at least an unwarranted six months in CM level two status, the moderate level of CM. Id. As relief, he seeks injunctive relief enjoining the DOC from retaliating against grievance writers and denying due process and "substantive procedural protections" by using notations on contact cards or 229A sheets and by using past disciplinary reports as means for retention in CM. Id. at 9-9b.
As previously noted, this Court ordered Plaintiff to file a Second Amended Complaint, describing "how Defendant McDonough allegedly violated his federal constitutional rights while he was incarcerated at Florida State Prison at the time of his second and third CM reviews (August 14, 2003, and February 26, 2004)." Court's Order (Doc. #84), filed September 18, 2007, at 22-23.
In challenging his retention in CM level one status, Plaintiff claims that at the time of his second review (August 14, 2003) by the three-member institutional classification team (including B.V. Reddish and L.E. Griffis), he was disciplinary-free for over one year, and his behavioral risk assessment score was twenty-one (21) (although he argues it should have been sixteen (16)). Id. at 9c-9d. With either a score of sixteen or twenty-one, he was in the moderate range, which demonstrated that he should have been progressed to CM level two status. Id. at 9d.
Specifically, Plaintiff claims that D. Robinson (his classification officer and the subject of Plaintiff's grievances) prepared a flawed behavioral risk assessment and recommendation in retaliation for Plaintiff's filing of grievances. Second Amended Complaint at 9c; Plaintiff's Second Amended Appendix of Exhibits (Doc. #95), filed February 21, 2008, Exhibit D (hereinafter Plaintiff's Ex.). In arguing that Classification Officer Robinson should have scored him at sixteen points rather than twenty-one points, Plaintiff explains that (1) a disciplinary report he received prior to his placement in CM was overturned, and therefore section E of his behavioral risk assessment (Plaintiff's Ex. D) should have been scored as a one, not a two; that section would then total two, not four, and (2) since the weapon that Plaintiff is alleged to have possessed was found more than a year prior, section F should have been scored as a one, not a two; that section would then total three, not six. Plaintiff's Second Amended Complaint at 9c. Thus, taking those points away, Plaintiff would have scored sixteen points rather than the twenty-one points that Defendant Robinson incorrectly assessed. Id. at 9c-9d. Thus, he notes that the score of sixteen is only two points above the behavior risk assessment's mild range. Id. at 9d. Additionally, Plaintiff claims that the three-member institutional classification team (including Reddish and Griffis) conspired to retaliate against Plaintiff (by keeping him in CM level one status) for his filing of grievances. Id. at 9c-9d. Plaintiff notes that there was "no viable reason" for his retention in CM level one, but that he should have progressed to CM level two. Id. at 9d.
Plaintiff also challenges his retention in CM level one status after the third review (February 26, 2004) by the institutional classification team. Id. He claims that, at the time of the hearing, he was disciplinary-free for eighteen months and his behavioral risk assessment score was an eight; however, Plaintiff was again retained in CM level one status. Id. Officer Heishman (Plaintiff's classification officer at that time), in recommending that Plaintiff be retained in CM level one status, cited to the disciplinary report that had been overturned almost a year earlier. Id. at 9d-9e. The three-member institutional classification team (Reddish, Thompson and Starling) conspired to keep him in CM level one status due to the grievances he had filed. Id. at 9e. The team concluded that Plaintiff's poor disciplinary history, Plaintiff's poor attitude and notations on his contact card warranted further review and retention in CM level one status. Id. at 9e; Plaintiff's Ex. B. Plaintiff alleges that Thompson told Plaintiff that the team would do him a "favor" and give him a ninety-day review. Plaintiff's Second Amended Complaint at 9e. However, when Plaintiff told him he was not doing him a favor, but merely wished to retaliate against him, Thompson told Reddish to "cross off" where he had noted that Plaintiff needed a ninety-day review. Id.
While Plaintiff's Second Amended Complaint reflects that the third review was conducted on February 24, 2004, the Report of Close Management, submitted as Plaintiff's Ex. B, states that the review was on February 26, 2004.
As relief, Plaintiff Hale requests injunctive relief against the Secretary of the DOC to (a) promulgate rules and implement specific criteria for the progression of inmates through CM, taking into consideration the nature of the charge(s) that warranted placement in CM similar to the process provided for disciplinary violations; (b) promulgate and implement a rule disallowing the use of disciplinary reports received prior to the placement in CM as a means for retention in CM since they are already factored into the behavioral risk assessment score; and (c) promulgate and implement a rule disallowing the use of notations on contact cards (DC6-229A form) as a means for retention in CM or promulgate and implement due process procedures for the contact cards. Id. at 9f-9i.
IV. Law and Conclusions
Plaintiff Hale claims that it is his retention in CM level one status twice at FSP and in CM level two once at Charlotte Correctional Institution that are at issue in this case. Plaintiff's Reply at 3. The following facts are relevant for resolution of those issues. Plaintiff Hale is a prisoner incarcerated by the DOC, and Defendant McNeil is the current Secretary of the DOC. On July 30, 2002, Plaintiff was recommended for assignment to CM status. Defendant's Ex. A, Report of Close Management. The CM recommendation contained the following comments:
Plaintiff Hale states that he "accepts" Defendant's statement of the case and facts contained within the Motion for Summary Judgment (Doc. #99) at pages one through three. Plaintiff's Reply at 2.
Inmate Hale, William DC # 097437 was received from Tomoka C.I. for Internal Security Threat. Subject was transferred due to trying to manipulate staff against staff. Since subject's receipt at Washington C.I.[,] he has received (11) Disciplinary Reports. These reports included (1) for 2-4: Fighting; (1) for 6-1: Disobeying an Order; (2) for 6-2: Disobeying Regulations; (5) for 9-17: Disorderly Conduct, three of those inmate received while in confinement; and (2) for 1-3: Spoken Threats, in which inmate threatened to assault one officer in one incident and in another threatened to "put a piece of steel through the officer." Based on subjects' [sic] continued attempts to manipulate staff against staff and his continued disruptive behavior consistent with Chapter 33-601.800(2)(b)(2)(f), it is recommended that Inmate Hale be assigned to Close management status pending further observation.Id. On August 2, 2002, Plaintiff was notified that he would receive a review by the institutional classification team. Id. The three-member institutional classification team (R.P. Tifit, Tommy Pepper and Richard Johnson) held a hearing (at which Plaintiff was present) to consider Plaintiff's assignment to CM status. Id. The team approved the recommendation to assign Plaintiff to CM status and recommended CM level one status, stating:
Fla. Admin. Code Rule 33-601.800(2)(b)2.f. states that a "pattern of behavior during the present period of incarceration involving acts of violence or threats of violence" constitutes a basis for placement of an inmate in CM level two status. Defendant's Ex. G.
The three-member institutional classification team, consisting of the Warden or the Assistant Warden, Classification Supervisor and the Chief of Security, is responsible for making work, program, housing and inmate status decisions at the facility and for making other recommendations to the State Classification Office. Fla. Admin. Code Rule 33-601.800(1)(k); Defendant's Ex. G.
CM level one status is the most restrictive single cell housing level of all the CM management status designations, and an inmate assigned to CM level one status will be ineligible for a work assignment. Fla. Admin. Code Rule 33-601.800(2)(a)1. and 2; Defendant's Ex. G. CM level two status is restrictive cell housing which may or may not be restricted to single cell housing. Fla. Admin. Code Rule 33-601.800(2)(b); Defendants' Ex. G. And, CM level three status is the least restrictive cell housing unit in CM. Fla. Admin. Code Rule 33-601.800(2)(c); Defendant's Ex. G.
Inmate present during hearing. Mental health assessment received and reviewed. The team recommends assignment to CMI status due to a pattern of threats and violent behavior and currently pending disciplinary report for possession of a weapon while housed in confinement. This record is consistent with 33-601.800(2)(a)(2)(j).Id. On August 8, 2002, the State Classification Office approved the team's decision. Id.
Fla. Admin. Code Rule 33-601.800(2)(a)2.j. states that "possession of weapons" constitutes a basis for placement of an inmate in CM level one status. Defendant's Ex. G.
The State Classification Office is a staff member at the central office level who is responsible for the review of inmate classification decisions and whose duties include approving, rejecting or modifying the institutional classification team's recommendations. Fla. Admin. Code Rule 33-601.800(1)(q); Defendant's Ex. A, B, C, D; Report of Close Management, Form DC6-233C, Section IV, entitled SCO Review; Defendant's Ex. G.
On October 25, 2002, Plaintiff Hale was transferred to FSP and was placed in CM level one status, the most restrictive of the three levels. Defendant's Ex. B, Report of Close Management. On January 21, 2003, Plaintiff received a six-month review of his initial August 8, 2002, assignment to CM status. Id. The CM recommendation contained the following comments:
MED: 2 PSY: 3 RSLD: 2023 ESCAPES: No TRANSFERRED TO F.S.P.: On 10/25/02 from S.F.R.C. for CM. CURRENT CM ASSIGNMENT: CMI based on 10 DRs he received in 2002 including Spoken Threats (to assault staff) on 3/13/02, (to stab an officer) on 7/26/02 and Poss. of Weapons (a toothbrush with 2 razors melted into the end of it) on 7/31/02. PRESENT CM STATUS: CMI. No DR this review period. RECOMMENDATION: Remain on CMI based on his Poor DR Record to include threats towards staff and Possession of Weapons.Id. On January 23, 2003, Plaintiff received notice that he would be reviewed by the institutional classification team regarding his CM status and was also informed that he would be permitted to submit information to the team verbally or in writing regarding the status of his assignment to CM. Id. On February 13, 2003, the institutional classification team held a hearing to review Plaintiff's status in CM, and Plaintiff was present at the hearing. Id. The team recommended that Plaintiff continue in CM level one status and made the following findings:
Inmate present — The ICT concurs with the recommendation in section I. His poor DR record warrants further review in CM. His BRA [(behavioral risk assessment)] dated 2-4-03 and his memo dated 1-17-03 were reviewed.Id. The State Classification Office approved the team's recommendation, stating:
The seriousness of the disciplinary reports originally placing Hale in CM warrants further observation in his present management level. The Behavioral Risk Assessment, DC4-729 , dated 2-4-03 and the Mental Health Status of Confinement inmate memo, DC4-528, dated 1-17-03 were considered.Id.
The Florida Department of Corrections Office of Health Services Behavioral Risk Assessment form is labeled a DC4-729 form. See Plaintiff's Ex. D.
The mental health staff completes the DC4-528 form, entitled "Mental Health Status of Confinement Inmates," as a means of notifying the classification supervisor of each inmate's mental health condition.
Plaintiff Hale challenges his retention in CM level one status as a result of the institutional classification team's second review conducted on August 14, 2003. Plaintiff does not challenge his retention in CM level one status after his first review by the institutional classification team in February 2003. In May 2003, Plaintiff started to write numerous grievances concerning gain time and the conditions of his confinement. Plaintiff claims that, as a result of his writing those grievances, his classification officers and the institutional classification team members retaliated against him by keeping him in CM level one status. Thus, Plaintiff only challenges his retention in CM level one status after his second and third reviews by the institutional classification teams at FSP. Second Amended Complaint at 9c-9e.
On August 1, 2003, Officer Robinson (Plaintiff's classification officer at that time) made the following comments and recommendation:
MED: 2 PSY: 2 RSLD: 2023 ESCAPES: No TRANSFERRED TO F.S.P.: On 10/25/02 from S.F.R.C. for CM. CURRENT CM ASSIGNMENT: CMI based on 10 DRs he received in 2002 including Spoken Threats (to assault staff) on 3/13/02, (to stab an officer) on 7/26/02 and Poss. of Weapons (a toothbrush with 2 razors melted into the end of it) on 7/31/02. PRESENT CM STATUS: CMI. No DR this review period. RECOMMENDATION: Remain on CMI based on his DR History to include threats towards staff and Possession of Weapons.
Defendant's Ex. C, Report of Close Management. Plaintiff received notice that he would be reviewed by the institutional classification team regarding his CM status and was also informed that he would be permitted to submit information to the team verbally or in writing regarding the status of his assignment to CM. Id. On August 14, 2003, the three-member institutional classification team (J.D. Wainwright, B.V. Reddish and L.E. Griffis) held a hearing, at which Plaintiff was present, to review Plaintiff's CM level one status. Id. The team recommended that Plaintiff continue in CM level one status and made the following findings:
Inmate present — The ICT concurs. His poor DR record warrants further review in CMI.
His BRA [(behavioral risk assessment)] dated 6-9-03 and his memos dated 7-9-03 were reviewed.Id. The State Classification Office approved the team's recommendation, stating:
BRA (DC4-729) results of 06/09/03 and his mental health assessment of 07/09/03 were reviewed and considered.Id.
Plaintiff also challenges his retention in CM level one status as a result of the institutional classification team's third review conducted on February 26, 2004. On January 30, 2004, Officer Heishman (Plaintiff's classification officer at that time) made the following comments and recommendation:
MED: 2 PSY: 3 RSLD: 2023 ESCAPES: No TRANSFERRED TO F.S.P.: On 10/25/02 from S.F.R.C. for CM. CURRENT CM ASSIGNMENT: CMI based on 10 DRs he received in 2002 including Spoken Threats (to assault staff) on 3/13/02, (to stab an officer) on 7/26/02 and Poss. of Weapons (a toothbrush with 2 razors melted into the end of it) on 7/31/02. PRESENT CM STATUS: CMI. No DR this review period. RECOMMENDATION: Remain on CMI based on his DR History to include threats towards staff and Possession of Weapons.
Defendant's Ex. D, Report of Close Management. Plaintiff received notice that he would be reviewed by the institutional classification team regarding his CM status and was also informed that he would be permitted to submit information to the team verbally or in writing regarding the status of his assignment to CM. Id. On February 26, 2004, the three-member institutional classification team (B.V. Reddish, Joseph Thompson and Lonnie Starling) conducted a hearing, at which Plaintiff was present, to review Plaintiff's CM level one status. Id. The team recommended that Plaintiff continue in CM level one status and made the following findings:
Inmate present — The ICT concurs. His poor DR history and neg. notations on his contact card warrants further review in CMI. The subject displayed a poor attitude towards the ICT. His BRA [(behavioral risk assessment)] dated 2-16-04 and his memos dated 10-7-03, 11-4-03, 12-23-03, 1-21-04, and 2-25-04 were reviewed.Id.
In the Second Amended Complaint, Plaintiff stated that Joseph Thompson, a team member, offered him a ninety-day review, stating it was "a favor." Second Amended Complaint at 9e. When Plaintiff told Thompson that he was not doing him a favor, but was retaliating against him and illegally using 229A notations to retain him in CM status, Thompson told Reddish to cross out the ninety-day review recommendation. Id. The Report of Close Management reflects that the team's recommendation of a ninety-day review was crossed out and that the team noted that Plaintiff Hale had "displayed a poor attitude towards the ICT." Defendant's Ex. D.
The State Classification Office approved the team's recommendation, stating:
BRA dated 2-16-04 and DC4-528's dated 10-7-03, 11-4-03, 12-23-03 and 1-21-04, [and] 2-25-04 [were] reviewed and considered.Id.
In June of 2005, Plaintiff Hale was released from CM status. Defendant's Ex. E. On July 11, 2007, Plaintiff was assigned to CM level two status while at Jefferson Correctional Institution. Defendant's Ex. F, Report of Close Management. The initial referral reason was that he had exhibited a pattern of behavior during the present period of incarceration involving acts of violence or threats of violence. Id. On January 4, 2008, it was recommended that he remain in CM level two status with the stated basis as follows:
Inmate is currently in C2 and based on seriousness of original placement reason and/or inmate's poor adjustment[,] safety and security concerns exist which warrant continuation of C2.
. . . .
Inmate Hale was initially assigned to CM2 at Jefferson CI on 7/11/07 based on threats of violence. He transferred to CHACI'S [(Charlotte Correctional Institution)] TCU [(Transitional Care Unit)] 8/27/07 where he remains. Since the initial assessment, he has received one additional DR on 11/14/07 for possession of contraband, had three unsatisfactory security gain time ratings for August, September, and November, and received all above satisfactory mental health gain time ratings. Review of the database reveals no detainers or convictions for assaults on staff. Recommend continued CM2 assignment based on less than satisfactory adjustment.Id.
Plaintiff received notice that he would be reviewed by the institutional classification team regarding his CM status and was also informed that he would be permitted to submit information to the team verbally or in writing regarding the status of his assignment to CM. Id. On January 30, 2008, the three-member institutional classification team (S. Porter, Steve Roddenberry and L. Severson) conducted a hearing, at which Plaintiff was present, to review Plaintiff's CM level two status. Id. The team recommended that Plaintiff continue in CM level two status and noted that the basis for the recommendation was that Plaintiff Hale had received the November 14, 2007, disciplinary report for possession of contraband and three unsatisfactory ratings during August, September and November. Id. The team had reviewed and considered the November 14, 2007, behavioral risk assessment (Form DC4-729) and the January 30, 2008, Mental Health Status of Confinement Inmates at CSU/TCU/CMHI (Form DC4-528).
The mental health staff completes the DC4-528 form, entitled "Mental Health Status of Confinement Inmates," to notify the classification supervisor of each inmate's mental health condition. And, CSU is the crisis stabilization unit; TCU is the transitional care unit; and CMHI is the corrections mental health institution. See http://www.dc.state.fl.us/business/contracts/S4055.pdf.
The State Classification Office approved the team's recommendation that Plaintiff remain in CM level two status, stating that the following assessments were reviewed and considered: the November 14, 2007, behavioral risk assessment (Form DC4-729) and the January 30, 2008, Mental Health Status of Confinement Inmates (Form DC4-528).
In order to obtain permanent injunctive relief, Plaintiff must show "(1) that he has prevailed in establishing the violation of the right asserted in his complaint; (2) there is no adequate remedy at law for the violation of this right; and (3) irreparable harm will result if the Court does not order injunctive relief." Edmonds v. Levine, 417 F.Supp.2d 1323, 1334 (S.D. Fla. 2006). In sum, since injunctive relief is an extraordinary remedy, not only must you have an infringement of a legal right, but that infringement must be by "an injury for which there is no adequate legal remedy and which will result in irreparable injury if the injunction does not issue." Alabama v. U.S. Army Corps of Eng'rs, 424 F.3d 1117, 1127 (11th Cir. 2005) (citations omitted), cert. denied, 547 U.S. 1192 (2006). For the reasons hereinafter stated, Plaintiff is not entitled to the injunctive relief he now seeks.
As previously noted, Plaintiff's claims for compensatory and punitive damages for mental or emotional injury against Defendants Griffis, Robinson, Heishman, Wainwright, Reddish, Brunt, Thompson, Starling, Polk, Locke, Mallard, Adams, Dickens and Shockley were found to be barred by 42 U.S.C. § 1997e(e) as long as Plaintiff remains incarcerated and were dismissed without prejudice. His conspiracy claim against those Defendants was also dismissed without prejudice.
CM is "[t]he confinement of an inmate apart from the general population, for reasons of security or the order and effective management of the institution, where the inmate, through his or her behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of others." Fla. Admin. Code Rule 33-601.800(1)(d); Defendant's Ex. G. CM is a housing assignment based on the security concerns of the prison, and it is not a punitive measure as is disciplinary confinement. Placement in CM is based on the prison officials' belief that an inmate requires the enhanced security and supervision inherent in CM status.
In instituting security practices such as CM, prison administrators "should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citations omitted). Judgments regarding security and the penological interests "are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." Lawson v. Singletary, 85 F.3d 502, 510-11 (1996) (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)). "Such deference is especially appropriate with respect to the primary state interest involved in this case — the maintenance of peace and security within the prison facility."Id. at 510 (quoting Pell, 417 U.S. at 823 ("Central to all other corrections goals is the institutional consideration of the internal security within the corrections facilities.")). "Such deference is justified because of 'the complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.'" Al-Amin v. Smith, 511 F.3d 1317, 1328 (11th Cir. 2008) (citation omitted). "This deference does not mean, however, that courts must abstain from reviewing the constitutional claims of prisoners." Sheley v. Dugger, 833 F.2d 1420, 1423 (11th Cir. 1987).
Assignment of an inmate to CM status is based on the prison officials' professional judgment about the security risks that a particular inmate poses to the internal prison environment. Here, the prison officials determined that Plaintiff Hale's behavior justified his placement in CM status where he would receive enhanced supervision and security.
When an inmate in general population has committed acts that threaten the safety of others, threaten the security of the institution, or demonstrate an inability to live in the general population without abusing the rights and privileges of others, the inmate shall be placed in administrative confinement pending close management review.
Fla. Admin. Code Rule 33-601.800(3)(b); Defendant's Ex. G.
As previously noted, Plaintiff Hale does not challenge his assignment and placement in CM status, but rather challenges his retention in CM level one status as a result of the second review on August 14, 2003, and the third review on February 26, 2004, at FSP and his retention in CM level two status at Charlotte Correctional Institution as a result of the January 30, 2008, review. Second Amended Complaint at 9; Plaintiff's Reply at 3. Plaintiff claims that, through his continued confinement in CM status, he has been denied due process and procedural protections. Second Amended Complaint at 9.
While no State may "deprive any person of life, liberty, or property, without due process of law," it is well-settled that only a limited range of interests fall within this provision. Liberty interests protected by the Fourteenth Amendment may arise from two sources — the Due Process Clause itself and the laws of the States.Hewitt v. Helms, 459 U.S. 460, 466 (1983) (citing Meachum v. Fano, 427 U.S. 215, 223-27 (1976)).
In Sheley v. Dugger, the Eleventh Circuit reviewed Sheley's claim that his continued confinement in CM deprived him of liberty without affording him procedural due process because his status was not periodically reviewed and because he was not given an opportunity to present his views to the prison officials charged with determining his status. The court, citing the CM rules in effect at that time, stated:
Sheley's confinement in CM was lengthy (twelve years) and uninterrupted. Sheley v. Dugger, 833 F.2d 1420, 1426, 1427 (11th Cir. 1987).
We find that the mandatory language and substantive predicates in the Department of Corrections' rules and regulations concerning administrative segregation and close management create for inmates a liberty interest in remaining in the general prison population.Sheley, 833 F.2d at 1424. The current rules for review of CM status provide that "[t]he purpose shall be toward reducing the inmate's status to the lowest management level or returning the inmate to general population as soon as the facts of the case indicate that this can be done safely." Fla. Admin. Code Rule 33-601.800(16)(a); Defendant's Ex. G. Further, the rules set forth the designated responsibilities of the inmate's classification officer, the classification supervisor, the institutional classification team and the State Classification Office for their review of the inmate's CM status.
(c) When an inmate has not been released to general population and is in any close management status for six months, the classification officer shall interview the inmate and shall prepare a formal assessment and evaluation on the Report of Close Management [(Form DC6-233C)]. Such reports shall include a brief paragraph detailing the basis for confinement, what has transpired during the six month period, and whether the inmate should be released, maintained at the current level, or reduced to a lower level of management [(or modified to another level of management)]. The case shall be forwarded to the classification supervisor who shall docket the case for ICT [(institutional classification team)] review.
(d) The ICT shall review the report of close management prepared by the classification officer, consider the results of behavioral risk assessments and mental health evaluations and other information relevant to institutional adjustment, staff and inmate safety, and institutional security, and insert any other information regarding the inmate's status and interview the inmate. The ICT's recommendation shall be documented in OBIS (Offender Based Information System, the DOC's computer offender database system which is utilized to organize and store security, classification, program and other offender information)] and the Report of Close Management, Form DC6-233C. If it is determined that no justifiable safety and security issues exists [sic] for the inmate to remain in close management the ICT shall forward their recommendation for release to the SCO for review. For an inmate to remain in close management the ICT shall justify the safety and security issues or circumstances that can only be met by maintaining the inmate at the current level or a lower level of management [(or modifying the inmate to another level of management)].
(e) The SCO shall conduct an onsite interview with each inmate at least once every six months or as often as necessary to determine if continuation, modification, or removal from close management status is appropriate. The SCO shall review all reports prepared by the ICT concerning an inmate's close management status, consider the results of behavioral risk assessments and mental health evaluations and other information relevant to institutional adjustment, staff and inmate safety, and institutional security and may interview the inmate before determining the final disposition of the inmate's close management status. If it is determined that no justifiable safety and security issues exist for the inmate to remain in close management the SCO shall cause the inmate to be immediately released. For an inmate to remain in close management, the SCO shall determine based on the reports and documentation that there are safety and security issues or circumstances for maintaining the inmate at the current level or at a lower level of management [(or at a modified level of management)]. The SCO's decision shall be documented in OBIS and the Report of Close Management, Form DC6-233C. The ICT shall advise the inmate of the SCO's decision.
See Fla. Admin. Code Rule 33-601.800(16)(c) (2008); Defendant's Ex. G.
See Fla. Admin. Code Rule 33-601.800(16)(d) (2008); Defendant's Ex. G.
See Fla. Admin. Code Rule 33-601.800(16)(d) (2008); Defendant's Ex. G.
Fla. Admin. Code Rule 33-601.800(16) (2003); Defendant's Ex. G.
However, in Sandin v. Conner, 515 U.S. 472, 481 (1995), the United States Supreme Court concluded that the focus of the liberty interest inquiry should be on the nature of the deprivation rather than on the language of the state prison regulation. The Court stated that while States may under certain circumstances create liberty interests which are protected by the Due Process Clause, "these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-84. Thus, while not free from all doubt, the Court assumes that the unjustified retention of Plaintiff in CM status would still implicate a liberty interest.
See Magluta v. Wetzel, No. 03-20155, 2006 WL 3837455, *6-7 (S.D. Fla. Dec. 29, 2006), aff'd, 253 Fed. Appx. 913 (11th Cir. 2007); Chandler v. Haas, No. 1:07-cv-145-MP-AK, 2008 WL 2096380, *1 (N.D. Fla. May 16, 2008) (recognizing that Plaintiff has no liberty interest in being kept out of close management since the segregation is not an "atypical and significant hardship . . . in relation to ordinary incidents of prison life").
However, even assuming that Plaintiff has shown the factual predicate to support a deprivation of a liberty interest by the conditions of his confinement in CM status, he must also demonstrate that he was not afforded due process of the law.Magluta v. Wetzel, No. 03-20155, 2006 WL 3837455, *8 (S.D. Fla. Dec. 29, 2006), aff'd, 253 Fed. Appx. 913 (11th Cir. 2007). Thus, the second part of this Court's inquiry entails determining whether the process afforded to Plaintiff Hale satisfied the minimum requirements of the Due Process Clause. The United States Supreme Court has cautioned that "administrative segregation may not be used as a pretext for indefinite confinement of an inmate. Prison officials must engage in some sort of periodic review of the confinement of such inmates." Hewitt v. Helms, 459 U.S. at 477 n. 9.
The record reflects that Plaintiff Hale was afforded due process in the review of his CM status and that he received timely, periodic reviews to ensure that his retention on CM status was justified. For each review, Plaintiff received notice of the upcoming CM review, stating: "You are hereby notified that you shall receive a review by the Institutional Classification Team no earlier than 48 hours from the time this notice is delivered. You are permitted to submit information to the Team verbally or in writing regarding the status of your assignment to Close Management." Defendant's Ex. C, D, F; Plaintiff's Ex. A, B, C. Additionally, the institutional classification team conducted periodic and timely hearings to consider his continued retention in CM, and Plaintiff was present at those hearings. Id. Plaintiff, at each hearing, had an opportunity to present information to the team for their consideration regarding the recommendation to keep him in CM. Id.
Plaintiff now seeks to have rules promulgated and implemented establishing specific criteria for the progression of inmates through CM. Specifically, Plaintiff suggests that a rule be created that sets forth a designated time period that an inmate will be housed in CM based on the infractions that placed him there. Second Amended Complaint at 9f-9g. Lars Severson, who served as a member of the institutional classification team for Plaintiff's January 30, 2008, hearing at Charlotte Correctional Institution (see Defendant's Ex. F), provided an affidavit, describing the specific criteria used by the institutional classification team in making a recommendation to the State Classification Office.
I am presently employed as a Correctional Probation Supervisor with the Department of Corrections at Charlotte Correctional Institution. I have been in this position since October 2007, and I have been employed with the Department of Corrections since 1993.
In my position with the Department of Corrections, part of my job responsibilities is to supervise the classification department, which contains the files of inmates who are currently housed at Charlotte Correctional Institution. In addition, I serve as a member of the Institutional Classification Team (ICT). The ICT is the team that consists of the warden or assistant warden, classification supervisor, a correctional chief, and other members as necessary when appointed by the warden or designated by rule. The ICT is responsible for evaluating the recommendations for close management and review of inmates on close management, conducting close management hearings, interviews of close management inmates and consideration of information provided by inmates during close management hearings. The ICT is also responsible for making work, program, housing and inmate status decisions at a correctional institution and for making other inmate recommendations to promote the security and good order of the institution.
The Department of Corrections' rules regarding close management establish a system of review of those inmates in close management to determine the need for continued placement in certain levels of close management or return [of] an inmate to general population.
Hearings are held regarding the initial recommendation for an inmate to be placed in close management and review hearings are held to determine an inmate's continued close management status or return to general population. The inmate is afforded an opportunity to be at the hearing and make statements.
. . . .
Form DC6-229A, Close Management Daily Record of Segregation, is a form that is used to record, on a daily basis, information relevant to an inmate's behavior. The Department rules allow for this form to be utilized while an inmate is in close management. This form is used to assist staff in assessing an inmate's progress in close management.
Form DC6-229A is the Close Management Daily Record of Segregation, which is maintained for each inmate as long as he is in close management. Fla. Admin. Code Rule 33-601.800(17)(b) (2008); Defendant's Ex. G. The form is used to document any activities, including cell searches, items removed, showers, outdoor exercise, haircuts and shaves. Id. "The close management unit officer shall make a notation of any unusual occurrences or changes in the inmate's behavior and any action taken." Id.
Defendant's Ex. H, Affidavit of Lars Severson (hereinafter Severson's Affidavit).
The DOC's rules provide specific criteria for the progression of inmates through CM. See Defendant's Ex. G. Specifically, the institutional classification team is required to review the Report of Close Management prepared by the classification officer and consider the results of behavioral risk assessments and mental health evaluations and any other information relevant to institutional adjustment, staff and inmate safety, and institutional security. And, the State Classification Office is required to review all reports prepared by the team concerning the inmate's CM status as well as consider the results of behavioral risk assessments and mental health evaluations and any other information relevant to institutional adjustment, staff and inmate safety, and institutional security. For an inmate to remain in CM, the final reviewer (the State Classification Office) must determine, based upon the reports and documentation, that there are safety and security issues or circumstances for keeping the inmate within CM. Fla. Admin. Code Rule 33-601.800(16)(e). Plaintiff has not shown that this detailed procedure violates his due process rights.
Additionally, Plaintiff seeks to have a rule promulgated that does not allow the use of disciplinary reports received prior to the placement in CM as a means for retention in CM since they are already factored into the behavioral risk assessment score. Second Amended Complaint at 9g. Team member Severson has stated:
When an inmate is reviewed for close management, the inmate's prior disciplinary report history is not determinative of whether an inmate remains in close management. The ICT considers other factors in making a determination to retain an inmate on close management or return to general population. The ICT is aware of the information provided in the Behavioral Risk Assessment (BRA) and takes into consideration that some categories of the BRA relate to acts that may have occurred in the past.
Fla. Admin. Code Rule 33-601.800(16)(d) states that the institutional classification team shall review the Report of Close Management (Form DC6-233C) prepared by the classification officer, shall consider the results of the behavioral risk assessments and mental health evaluations and other information relevant to institutional adjustment, staff and inmate safety, and institutional security and insert any other information regarding the inmate's status. Defendant's Ex. G.
Severson's Affidavit (emphasis added). While Plaintiff Hale's disciplinary record was described as "poor" at both the second and third reviews at FSP, it was also acknowledged that he did not have any disciplinary reports for those review periods. Defendant's Ex. C, D; Plaintiff's Ex. A, B. Moreover, he was released from CM status in 2005 and remained outside of it for over two years before he was returned to CM level two status in 2007. Additionally, in 2008, in recommending that he continue his CM level two status at Charlotte Correctional Institution, the classification officer noted that Plaintiff had received an additional disciplinary report during the review period (November 14, 2007, for possession of contraband). Defendant's Ex. F; Plaintiff's Ex. C. Thus, while the team and the State Classification Office reviewed the recommendations (which recognized his "poor" disciplinary record), as team member Severson noted, "other factors" were considered in deciding whether it was safe to return him to the general population. Since the focus is upon Plaintiff's institutional adjustment, behavioral progress and mental stability during those specific review periods, they reviewed and considered the behavioral risk assessments (Form DC4-729), the Mental Health Status of Confinement Inmates (Form DC4-528) and the Close Management Daily Records of Segregation (Form DC6-229A). Those documents reflected his behavioral adjustment for those particular review periods. Defendant's Ex. C, D, F; Plaintiff's Ex. A, B, C. Again, Plaintiff received all the process to which he was due.
Further, Plaintiff's double jeopardy argument (Second Amended Complaint at 9g) is unavailing. The Double Jeopardy Clause provides three related protections:
It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.North Carolina v. Pearce, 395 U.S. 711, 717 (1969); United States v. Wilson, 420 U.S. 332, 343 (1975); Butler v. McDonough, No. 2:06-cv-206-FtM-29SPC, 2007 WL 2071530, *8 (M.D. Fla. 2007) ("These protections apply to criminal trials, not disciplinary hearings or subsequent inmate classifications utilized by jail officials to maintain safety and security at the jail."); Taylor v. Gomez, 182 F.3d 927 (9th Cir. 1999) (concluding that the inmate's double jeopardy argument lacked merit in that the district court correctly reasoned that his custody classification "is not punishment, but rather a method for housing inmates based on their behavior").
Plaintiff Hale also asserts that a rule should be promulgated and implemented that would not allow the use of notations on the DC6-229A form as a means for retention in CM or that due process procedures should be implemented for the use of the contact cards. Second Amended Complaint at 9, 9e, 9h-9i. The DOC's DC6-229A form is the Close Management Daily Record of Segregation form, on which information relevant to the inmate's behavior is recorded on a daily basis. "The close management unit officer shall make a notation of any unusual occurrences or changes in the inmate's behavior and any action taken." Fla. Admin. Code Rule 33-601.800(17)(b) (2008). According to team member Severson, the form is used to assist the staff in assessing the inmate's progress in CM. See Severson's Affidavit. Thus, since the classification officer, the classification supervisor, the institutional classification team and the State Classification Officer are concerned with whether the inmate still demonstrates an inability to live in the general population and thus are specifically focused upon "other information relevant to institutional adjustment, staff and inmate safety and institutional security," this form plays a relevant role in documenting an inmate's daily activities and behavior. Fla. Admin. Code Rule 33-601.800(16)(c)-(e) and (17)(b); Defendant's Ex. G.
In sum, at Plaintiff's three CM periodic reviews (August 14, 2003; February 26, 2004; and January 30, 2008), he received the process that he was due for the review of his CM retention. See Defendant's Ex. C, D, F; Plaintiff's Ex. A, B, C. Defendant McNeil did not violate Plaintiff's federal constitutional rights, and Plaintiff is not entitled to injunctive relief. Defendant's Motion for Summary Judgment will be granted, and judgment will be entered in favor of Defendant McNeil.
Therefore, it is now
ORDERED AND ADJUDGED:
1. Defendant McNeil's Response to Plaintiff's Second Amended Complaint (Doc. #99), construed as a Motion for Summary Judgment, is GRANTED.
2. The Clerk of Court shall enter judgment in favor of Defendant McNeil.
3. The Clerk of Court shall close this case.
DONE AND ORDERED at Jacksonville, Florida,