Opinion
CASE NO. 4:01cv76-WS
March 5, 2003
SECOND REPORT AND RECOMMENDATION
Defendant's special report, doc. 17, was filed on September 10, 2001. Pursuant to the Court's usual practice in civil rights cases concerning prison conditions, the report, doc. 17, was construed as a motion for summary judgment and Plaintiff, a pro se inmate, was advised of his Rule 56 obligation to respond to the motion. Docs. 22, 72. The initial deadline set for consideration of the motion was December 18, 2001. Doc. 22. Plaintiff, however, was given leave to conduct discovery and that process has resulted in the deadline for responding to the summary judgment motion being extended on numerous occasions throughout these proceedings. Plaintiff has now filed a response to the motion for summary judgment, doc. 76, and submitted evidence in support of his claims. Doc. 76, attachments.
Procedural History
Prior to construing the special report as a motion for summary judgment, a report and recommendation was issued sua sponte concerning Defendant's arguments that: (1) Plaintiffs claims were barred by the statute of limitations, (2) Plaintiff lacked standing to seek injunctive relief, (3) the case was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and (4) Plaintiff did not properly exhaust administrative remedies. See doc. 18. The only argument found to be valid concerned the statute of limitations issue, id., and the order adopting the report and recommendation, doc. 21, dismissed all claims arising from incidents that arose prior to February 27, 1997. See docs. 18, 19, 20, and 21.
Allegations of the Complaint
Plaintiffs complaint, which seeks only declaratory and injunctive relief, proceeds with two separate claims which challenge prison rules, regulations, and practices. Doc. 1. First, Plaintiff challenges the effects of a departmental "practice, policy or custom" which requires the automatic placement of an inmate charged with a disciplinary infraction in administrative confinement. Plaintiff contends that this placement does not permit him to collect evidence to present in his defense because the staff assistance which is offered is ineffective as staff will not collect evidence. The denial of those requests to collect evidence is based on departmental rules.
Plaintiff voluntarily dismissed the third claim which had concerned the determination that inmate personal property was contraband and permitted the immediately revocation and disposal of that property. Docs. 1, 41, and 42.
In showing the application of the challenged rules against him, Plaintiff alleged that after being given a disciplinary report (hereinafter DR), he "requested a staff assistant be appointed to aid him in collecting evidence to be presented at the disciplinary hearing. Doc. 1, p. 14. Plaintiff's requests were denied based on Rule 33-601.302(11) and Rule 33-601.305(2)(b) of the Florida Administrative Code. Id. Plaintiff contends that the appointed staff assistant will only read the facts of the report to ensure Plaintiff understands the charge against him, as that is the Department's interpretation of Rule 33-601.302(11) and Rule 33-601.307(1)(b) of the Florida Administrative Code. Id., at 14-15. He alleges that "[c]onviction for disciplinary infractions invariably result in forfeiture of accrued gain time, imposition of atypical, significant hardship in disciplinary confinement for extended periods," and other penalties. Id., at 15-16.
The allegations in Plaintiffs complaint were sworn under penalty of per jury.
Second, Plaintiff challenges another departmental rule which he says requires the immediate return (within 24 hours) of non-legal incoming mail which is disapproved. If incoming mail is determined not to meet the criteria of Rule 33-210.101(6)(a)-(k), the sender of the mail is sent a notice advising that the mail was disapproved. Doc. 1. Pursuant to Rule 33-210.101(8), the inmate is "then given an opportunity to challenge the screening staffs disapproval through defendant's grievance procedure to an uninvolved employee." Id. However, "the practice, policy or custom of all institutional mailroom employees [is] to return a piece of disapproved incoming mail within 24 hours of its receipt." Id. The language of the rule itself, Plaintiff contends, does not require holding the mail long enough for the grievance to be exhausted. Id., at 19. Plaintiff asserts that this denies him a meaningful opportunity to challenge the decision to return the mail because "the letter does not exist to permit an independent, impartial review of the contents causing the disapproval." Id., at 18. Moreover, if his challenge is successful, Plaintiff is still "deprived of the letter and its message." Id., at 19. As a matter of comparison the complaint asserts that if an item of personal property is confiscated, the rules specifically require impounding the property for 30 days following the period of time that a grievance concerning the matter is pending. Id., at 20. Plaintiff alleges that over time, this policy has caused him to be deprived of "numerous letters and items such as photos, blank envelopes, blank postcards, blank greeting cards, newspaper and magazine articles and certified mail forms." Id.
Standard of Review
Rule 56(c) mandates the entry of summary judgment against Plaintiff as the party with the burden of proof, unless he can establish the existence of genuine issue of material fact as to all elements essential to his case: A complete failure of proof concerning an essential element of the case necessarily renders any other facts immaterial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, a defendant initially has the burden to demonstrate an absence of evidence to support the nonmoving party's case. 477 U.S. at 322-23, 106 S.Ct. at 2553-54. If accomplished, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co. LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a "scintilla" of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). However, "the evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor." WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir. 1988).
"Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997), cert. denied 522 U.S. 1126 (1998), quoting Celotex, 477 U.S. at 324,106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.
Local Rule 56.1(A) provides that a motion for summary judgment "shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion." The Local Rule provides that the party opposing the motion shall serve a similar statement of material facts as to which the party contends there is a genuine issue to be tried, using the same format.
Defendant did not file a statement of material facts as to which he contends there is not a genuine issue for trial. Doc. 17. The facts stated in Defendant's summary judgment motion are merely a recitation of Plaintiffs allegations from the complaint. Plaintiff did not file a separate statement of facts either. Nevertheless, the parties have provided factual assertions which have been considered. Doc. 76.
The relevant Rule 56(e) evidence
Claim One
Defendant has presented evidence concerning the "procedures employed by the Department of Corrections with regard to disciplinary proceedings, contraband, and inmate personal mail." Doc. 17, ex. B. That evidence consists of an affidavit by Rick Gibbs who is employed by the Department of Corrections as the Corrections Program Administrator with the Bureau of Security Operations. Doc. 17, ex. B. Following the issuance of a DR, but before a hearing is held, a correctional officer "is assigned to investigate the charge." Id. The investigating officer "is responsible for collecting statements from the charging officer, the charged inmate, and any witnesses named by the officer or the inmate." Id. The officer must also "inspect any evidence the charged inmate has in his possession." Id. "The Officer will obtain other evidence requested by the charged inmate if the request is within reason." Id. Additionally, if the i mate charged with a DR "claims that there is exculpatory evidence, and the investigating officer has not retrieved it and presented it to the disciplinary hearing team, an inmate can request that this exculpatory evidence be produced at the hearing." Id. If such a request is made at the hearing, "the hearing will be postponed until the alleged exculpatory evidence can be obtained." Id.
Within the memorandum of law, Defendant also cited Rule 33-601.305 which "governs the investigation of inmate disciplinary reports." Doc. 17, pp. 15-16. This rule provides that "[t]he investigating officer is responsible for the following:
(1) Interviewing the charging staff member.
(2) Interviewing the charged inmate. When interviewing the charged inmate the investigator is responsible for the following:
(a) Delivering the charge to the inmate by reading the charge and statement of facts to the inmate.
(b) Ensuring that the inmate has been provided a written Copy of the charges.
(c) Appointing a staff assistant if necessary.
(d) Obtaining the inmate's version of the infraction.
(e) Asking the inmate if there are any witnesses to offer in the inmate's behalf.
(f) Completing and obtaining the inmate's signature on the Witness Disposition Form . . .
(3) Interviewing additional persons who may have information pertaining to the infraction, including those who are listed in the statement of facts or specifically referenced by the charging staff person or specifically identified by the charged inmate.
(4) Recording the results of the investigation on the Disciplinary Investigative Report Form . . .
FLA. ADMIN. CODE R. 33-601.305 (as amended to May 11, 2001).
Plaintiff has presented evidence showing that in 1999, while housed at Walton Correctional Institution, he received a DR for disrespect to officials. Doc. 73, p. 10; doc. 76, ex. A. Plaintiff is serving a life sentence. Doc. 76, ex. A, ¶ 1. Plaintiff requested that the investigating officer, Sgt. Green, assist him in collecting evidence. Plaintiff asked for certain documents from his "impounded property," but this was not done. Doc. 76, ex. A, ¶ 16. Some evidence was presented, but Plaintiff was not allowed to read it and, despite Plaintiff's second request during the hearing that a staff assistant help Plaintiff by "collecting this evidence," Plaintiff's request was denied and his evidence was not provided. Doc. 76, ex. A, ¶ 16-17. Additionally, Plaintiff requested that several inmates be questioned and Plaintiff wrote several questions for the investigator to ask the witnesses identified by Plaintiff. Doc. 76, ex A, ¶ 16 doc. 76, ex. C. Plaintiff avers that the inmate witnesses' statements indicate they were not given Plaintiffs specific questions. Id.; see also doc. 76, ex. D. The hearing team refused to postpone the hearing and Plaintiff was not given reasons either for the refusal to postpone the hearing or to collect his requested evidence. Doc. 76, ex. A, ¶ 17. Plaintiff was convicted of the infraction and "sentenced to" 30 days in confinement and loss of 60 days gain time. Doc. 76, ex. A, ¶ 17; doc. 76, p. 11; doc. 76, ex. B.
Exhibit D is an affidavit from a former inmate, David Eames.
Plaintiff has presented as evidence Departmental Procedure Number 601.301 on Inmate Discipline. Doc. 76, ex. B. The document indicates that one type of penalty that is authorized for inmates charged with disciplinary infractions is the loss of gain time. Id., at 12. "Inmates serving a life term, certain mandatory sentences or death sentences cannot earn or lose gain time. However, the [disciplinary hearing] team is authorized to recommend loss of gain time for these inmates for two reasons: (i) Loss of gain time indicates the seriousness of the disciplinary action; and (ii) Loss of gain time may be applicable if the courts convert a life or death sentence to a term of years . . ." Doc. 76, ex. B, p. 13.
One affidavit presented by Plaintiff as evidence is from David Eames who was incarcerated along with Plaintiff for a time, but who is now released. Doc. 76, ex. D. In his affidavit, Mr. Eames relates being questioned by Sgt. Green and being read a DR that was written to Plaintiff. Id. Mr. Eames was not present during the events as related in the DR, so he asked whether Plaintiff had provided questions for him. Id. Mr. Eames was told to write what he knew and was not given the questions Plaintiff had provided Green to ask Eames. id.
It appears that Plaintiffs question to David Eames was what Plaintiff told him after returning from a meeting in Lieutenant Barker's office on or about October 20, 1999. Doc. 76, ex. C.
Mr. Eames also testified that on another occasion, when he was placed in administrative confinement for an investigation as to misuse of state property, his personal property was inventoried and, when his disciplinary hearing was postponed for "further investigation," Mr. Eames asked that evidence be produced (a computer disk) because the date on the disk would allegedly show that Eames did not have access to the disk or computer at that time and could not have created the file. Id. The disk was not presented and Mr. Eames was found guilty of the infraction. Id. As a consequence, he lost the opportunity to be awarded gain time and his prison sentence was lengthened. Id.
Mr. Eames also testified about another incident in which he was charged with fighting, but was asserts that he was only defending himself. He asked for staff assistance for the DR. Doc. 76, ex. D. Because Mr. Eames was placed in administrative confinement after the fight, he "could not even ascertain who had witnessed the events." Id. Mr. Eames' request for assistance was denied by Sgt. Green because Mr. Eames "could read and understand the charges adequately." Id. Again he asserts that because of this disciplinary action, he served longer in prison. Id. Plaintiff also presented the affidavit of another inmate, Thomas C. O'Bryant, who is currently serving two life sentences in the Florida Department of Corrections. Doc. 76, ex. E. Inmate O'Bryant has stated that in 1999, he was approached by Sergeant Green who said "that she was investigating the disciplinary report (D.R.) that was pending against Inmate Osterback and that Inmate Osterback had called [O'Bryant] as a witness." Id. Inmate O'Bryant said that he was willing to make a statement, and asked Green if Osterback had any particular questions he wanted O'Bryant to answer, but he said that Green would not tell him whether Plaintiff had any particular questions. Id. O'Bryant then wrote out a statement, but he did not know what in particular Plaintiff wanted answered in the statement. Id.
There is additional evidence that inmate O'Bryant sent an inmate request form on November 11, 1999, stating that he had been requested by Green to submit a witness statement regarding a DR that had been given to Plaintiff, and that he "was confused as to what [O'Bryant] was being asked to witness." Doc. 76, ex. F. Inmate O'Bryant said that Sgt. Green did not clarify the matter for him and he was concerned that Plaintiff would not receive a fair hearing because he did not know about which of several scenarios he was being requested to provide a written statement. Id. The response on that request form simply states, "noted." Id.
Plaintiff asserts in his affidavit that should he receive a DR in the future, similar requests to have evidence collected for him by a staff assistant will be denied pursuant to Department of Corrections practice and/or policy. Doc. 76, ex. A, ¶ 19. Plaintiff contends that the denial to collect evidence for an inmate is "not isolated, but rather is a systematic deficiency due to the vagueness of defendant's rules and the lack of mandatory language therein to require collection and presentation." Doc. 76, pp. 11-12. Additionally, Plaintiff refutes the statement made in the Gibbs affidavit concerning a willingness to obtain evidence as requested by an inmate if "within reason,' and has asserted that the Gibbs statement is not supported by either the Department's rules or its procedural manual. Doc. 76, pp. 9-10. Plaintiff also takes issue with the statement made by Defendant in the denial of Plaintiffs request to amend the rule challenged here that an inmate has an available method of obtaining evidence by simply requesting the collection of evidence by the investigating officer and disciplinary team. Doc. 76, pp. 7-8, citing doc. 1, ex. B, pp. 2-3. Plaintiff disputes Defendant's assertion that when evidence is requested by inmates it is produced and contends, instead, that the evidence is "rarely, if ever" produced as requested. Doc. 76, p. 10.
Plaintiff has presented evidence in support of his claim that the failure to obtain evidence is systemic through disciplinary proceedings related to inmate Michael Adams. Doc. 76, ex. l. Inmate Adams was issued a DR for attempting to conspire to have marijuana brought into the institution. Id. At issue was whether the voice heard on a recorded telephone conversation was the voice of Adams. Id. The D indicates recorded telephone conversations were "maintained in the inspectors office." Id. Adams requested to hear the audio tapes himself, and his request was denied. Id.; see also doc. 76, ex. J. In Adams's appeal to the Secretary, the response states that "[t]he purpose of staff assistance is to ensure you can read and understand the charges against you, not to act as an attorney, mediator or fact finder." Doc. 76, ex 1. Adams, who has since been released from prison, also provided an affidavit in which he asserts that throughout his approximately ten years of incarceration and eleven disciplinary reports, he "was not provided any type of assistance to obtain, and present evidence." Doc. 76, ex. K. It is asserted that the inability to obtain and present evidence prevented inmate Adams from proving his innocence. Id.
Phillip Frantz, an inmate serving a life sentence, states in his affidavit that he was given a DR for disrespect and requested inmate witness statements as well as the production of "the videotape of the confinement wing where the infraction allegedly occurred. . . ." Doc. 76, ex. L. Frantz explained that he had just arrived in the confinement unit and did not know the names of the surrounding inmates who were witnesses. Id. He further stated that the "requested videotape would have unquestionably proved [he] committed no form of infraction and in fact had no contact at all with the reporting officer." Id. Both requests by Frantz were denied, as was his request to postpone the hearing until the evidence could be obtained. Inmate Frantz testified that the "team refused to even address" his request and he was subsequently found guilty and lost gain time. Id. Plaintiffs administrative appeals were denied, doc. 76, ex. M, and the circuit court denied his petition for writ of mandamus. Doc. 76, ex. L. The Florida First District Court of Appeals reversed, holding that the investigating officer failed to conduct an adequate investigation and that Frantz was denied due process when he was not provided "with a valid reason for [the] refusal to produce the administrative confinement videotape that he had requested." Frantz v. Moore, 778 So.2d 1003, 1005 (Fla. 1st DCA 2000), cited in doc. 76, ex. L.
Inmate Frantz also testified that he was given three additional disciplinary reports for allegedly refusing to provide a urine sample. Doc. 76, ex. L. He again requested videotapes of the confinement unit to prove his defense that he was not given the required time to provide a sample, but his requests were denied. Id. He was found guilty and lost gain time on each DR. Id. His appeals were denied, as was his petition in the circuit court. Id. His appeal to the district court was dismissed on procedural grounds because his notice of appeal was received late, but he contends that his disciplinary reports should have been overturned based on Frantz v. Moore, supra. Id. Inmate Frantz asserted still another example of requesting documentary evidence to defend against a DR, and states that "again this crucial evidence was not produced." Id." Again hearing team refused request to postpone for obtainment of evidence." Id. Inmate Frantz averred that "the D.O.C. does not provide any means for inmates (and especially those housed in confinement status) to obtain and/or present evidence on their behalf." Id. He also explained that "[t]he staff assistance provided" is to do "nothing more than read the statement of facts portion of the [disciplinary] report (D.R.) and ask if you understand it." Id.
As additional evidence, Plaintiff also presented written deposition questions from inmate Richard Bryant. Doc. 76, ex. N. Inmate Bryant stated that he requested staff assistance during the investigation of a DR he received in January, 2C 02. ID. He reports that there was evidence, unavailable to him, "that the staff assistant could've obtained to aid" in Bryant's defense. ID. He also indicates that the eviden e was not produced at his hearing, despite his request, and that the reason given was; that Bryant had not requested assistance. ID. Plaintiff asserts that Bryant's defense "was that the item was not a weapon," and the evidence should have been produced. D c. 76, p. 13.
Plaintiff also submitted as evidence the affidavit of James Quigley, a prisoner currently confined in Vermont but who was incarcerated in Florida prisons for approximately twenty years. Doc. 76, ex. O. Inmate Quigley had been a certified law clerk while incarcerated in Florida and states that he is aware of "only 2 or 3 occasions when staff assistance was provided to any prisoner with respect to a disciplinary proceeding, and the assistance was limited to acting as a translator for a Spanish-speaking prisoner, who could not understand English." Id. To inmate Quigley's knowledge, an investigating officer "limited his or her activity to gathering inculpatory evidence." Id. When inmate Quigley requested "help in obtaining documentary evidence, [he] was always told to `submit a request,' which meant a written Inmate Request, DC3-005 form, a procedure that could legitimately take 10 days, too long to be effective in a disciplinary proceeding." Id.
Plaintiff has also pointed to the definition of a staff assistant as stated in the Florida Administrative Code. Doc. 76, pp. 3-5. The applicable rule defines that official as:
An employee, appointed by the warden, whose name is placed on a list maintained by the disciplinary team and who is assigned by the team to assist the inmate. A staff assistant is not to take the position of an advocate or defense attorney. A staff assistant is assigned to an inmate under the following circumstances:
(a) To explain the charges or disciplinary procedures to the inmate,
(b) To assist the inmate when the disciplinary team determines that the inmate is illiterate or does not understand English,
(c) When the inmate has a disability that would hinder his or her ability to represent himself or herself,
(d) When the complexity of the issue makes it unlikely that the inmate will be able to properly represent himself.
Rule 33-601.302(14); doc. 76, p. 4; see also doc. 76, ex. B, p. 3. Plaintiff argues that staff assistance is provided "only for the reasons set forth above." Doc. 76, p. 5. In support of this argument, Plaintiff has presented a formal grievance in which he stated that he "requested a staff assistant to aid [him] in the collection of evidence to be presented at the hearing, but none was provided." Doc. 76, ex. H. Plaintiff explained that he needed the assistance to obtain copies of his grievance records as he could not access the copies since his property had been impounded. Id. Plaintiff asserted that the failure to provide this assistance "prevented [him] from obtaining evidence crucial to [his] defense and violate[d] 33-601.305(2)(b). . . ." Id.
Plaintiffs formal grievance also asserted that he again requested assistance in collecting his evidence at the beginning of the hearing, but that his request was denied and he was not provided a reason. Id. Plaintiffs grievance was denied and the response stated:
The investigating officer, Sgt. Green stated that she informed you of the scope of duties of a staff assistant, and you replied that you did not need someone to explain the charges because you understood them. A staff assistant is not a defense attorney or advocate.Id. Plaintiffs appeal to the Secretary's office was also denied, finding that the response at the institutional level "appropriately" addressed Plaintiffs concerns. Id.
Finally, Plaintiff has pointed to the role of the investigator as it concerns disciplinary reports. Doc. 76, ex. B, p. 5. The document explaining the investigators function does not include an obligation to obtain documents for the inmate. Id. That document does, however, include the following statements:
1. In disciplinary hearings where inmates request production of the evidence, the Disciplinary Team of Hearing Officer must respond to the request.
2. Due process does not require the production of all physical evidence in institutional disciplinary proceedings.Id., p. 9.
Claim Two
Defendant asserts that "[c]ontrol of contraband is a constant and persistent security concern." Doc. 17, ex. B. Rule 33-602.203(1)(a) of the Florida Administrative Code defines contraband as "any item or article inside an institution or facility, on the property of a facility or in the possession of an inmate that was neither:
1. Issued;
2. Approved for purchase at the commissary;
3. Purchased through an approved source with official approval;
4. Authorized and approved for delivery by mail; nor
5. Authorized to be brought into the institution or facility."
Doc. 17, ex. B, quoting Rule 33-602.203(1)(a); doc. 17, ex. C. In November, 1995, the rule which permitted inmates to receive four packages a year from family and friends, in addition to approved hobby craft packages, was repealed due to administrative and security problems. Doc. 17, ex. B. A new rule went into effect on January 1, 1998, which permitted inmates "to possess only that property specifically listed on the authorized property list incorporated in FAC, Rule 33-602.201." Id. If property is not specifically listed in Rule 33-602.201, it is "considered contraband." Id. The prior package rule had created security problems and, according to the Gibbs affidavit, much of contraband entering a correctional institution came "through these packages." Id. Under the 1998 rules, inmates must purchase items through the canteen Which reduced incidents of concealed contraband, "threat and illegal bartering." Id. A particular type of security problem was presented with envelopes coming through the mail. Doc. 17, ex. B. Envelope glue could contain illegal drugs, double backed envelopes could hide drugs and other contraband, and envelopes were sometimes used in bartering. Id. The Gibbs affidavit states that security personnel had to "virtually destroy the incoming envelopes" to determine whether they contained drugs or other contraband. Id. Nevertheless, the affidavit acknowledges that "[c]urrent rules permit inmates to receive limited numbers of stamped, self-addressed envelopes." Id. It is asserted that these envelopes are "less of a security concern because their number is limited and they are less likely to be valuable commodities for bartering within the institution." Id
Indigent inmates are provided envelopes free of charge. Doc. 17, ex. B.
There is also evidence that when personal mail to an inmate is found to contain "minor contraband" which "can be removed from the correspondence, the letter is forwarded to the inmate without the offending contraband." Doc. 17, ex. B. "If, however, the contraband is not considered minor, the inmate will be notified if his correspondence is going to be held." Id. Additionally, "[i]f personal mail is rejected because the text contains materials violative of institutional Rules, i.e., it contains code, gang related information, or promotes violence, etc., the letter is usually returned to the sender after proper notification to the inmate." Id. In the situation, however, where contraband is discovered and confiscated, "it is not immediately disposed or destroyed." Id. The confiscated item, unless it is perishable or a weapon, is retained "pending the inmate's utilization of the grievance process." Id. Finally, it is averred that if a confiscated item results in the issuance of a DR, it is "generally" retained until completion of the disciplinary proceedings. Id.
No definition of "minor" has been provided.
Defendant has provided a copy of Rule 33-602.203 concerning the control of contraband. Doc. 17, ex. C. The rules contain a requirement that "contraband items retained for use in disciplinary hearings as evidence will be stored until such time as the warden of his designee approves of their being destroyed or disposed of." Rule 33-602.203(7)(a). A secure storage area is to be designated at each institution and a contraband log form will document the items stored in that area. Id.
Plaintiff does not dispute that there are legitimate reasons for disapproving mail in the prison setting; however, his argument is that such a decision should "be accompanied by a reasonable opportunity to challenge" the decision. Doc. 76, pp. 15-16. Plaintiff has testified in his affidavit that he has had "many letters that were disapproved for delivery [to Plaintiff] based on the content of" the correspondent's expression. Doc. 76, ex. A, ¶ 24; see also doc. 76, p. 15. Plaintiff contends that "[m]any times" the disapprovals were erroneous, but because of current rules, those decisions are imposed without "any effective or meaningful review." Doc. 76, ex. A, ¶ 25, ¶ 27. Plaintiff avers that disapprovals "for reasons such as: inflammatory content; contains code not understood; encourages riot/disorder, etc., are subjective determinations and many times result in arbitrary decisions by poorly trained or maliciously motivated mailroom personnel." Doc. 76, p. 15; see also doc. 76, ex. A, ¶ 25, 26, and ¶ 32. Plaintiff has had some disapprovals subsequently overturned through the administrative grievance process, a process he states can take up to three months to complete. Doc. 76, ex. A, ¶ 28, ¶ 30.
Plaintiff cites as an example of why mail has been disapproved the fact that an address label was attached to an envelope. Doc. 76, ex. A, ¶ 32. The label apparently violated a rule against "stickers." Id.
In support of his argument that sometimes the decision to deny mail is erroneous, Plaintiff has provided internal e-mail messages from DOC officials as evidence. Doc. 76, ex. W. The "original message" from Chuck Shockley indicates that mail has been denied by officials at Santa Rosa C.I. because it contained nude photographs. Id. Mr. Shockley states his belief that "the interpretation used at Santa Rosa is incorrect" because it was "more restrictive than the intent of the rule. . . ." Id. The response to that email from Perri Dale is that "Santa Rosa's interpretation is incorrect. The rule does not prohibit nudity per se, only nudity which is depicted in such a way. . . ." Id.
Additional evidence showing that mistakes are made in disapproving incoming mail is a grievance appeal by Plaintiff dated December 12, 1990, in which he states mail was refused with the reason given that his bunk number was not written on it and, therefore, improperly addressed. Doc. 76, ex. Z. Plaintiffs appeal was approved and the response noted that the institution had "exceeded the requirements of the departmental rule by requiring you and other inmates to indicate your current dorm and bunk location." Id.
Plaintiff avers that to be able to receive mail which has been disapproved, he has "to write the correspondent, as DOC will not notify them their decision was wrong, and inform them they can send the letter." Doc. 76, ex. A, ¶ 31. Plaintiff contends he can then receive the mail only if the correspondent "retained it," and then it will take another 4-7 days for the mail to reach him. Doc. 76, ex. A, ¶ 31. Plaintiff states that a letter re-mailed after such a lengthy delay may be meaningless when finally received. Doc. 76, p. 18. Moreover, if a letter has been "lost" since it was initially rejected, there can be no success for an inmate who has the decision overturned. Id. In such a situation, the ability to receive what was intended has vanished along with the letter. Id. In support of that argument, Plaintiff has submitted written deposition questions from inmate Joshua Davis who states that after having several letters "immediately returned" rather than provided to him, two of the "letters never made it back to sender." Doc. 76, ex. U.
There is support for that assertion in doc. 76, exhibit S, the order denying Plaintiffs petition for a rule change. That order states that if "the reviewing authority determines that the material described in the statement is admissible, the inmate and institution will be notified and the sender can re-send the mail." Doc. 76, ex. S, p. 2.
Additional evidence in support of this claim is an affidavit from inmate David Beebe. Doc. 76, ex. Q. Inmate Beebe relates that as recently as January 28, 2003, he was notified that "incoming mail was being returned as it allegedly `contains correspondence that is dangerously inflammatory in that it advocates or encourages riot, insurrection, disruption of the institution, violation of Department of Institutional rules, the violation of which would present a serious threat to the security, order, or rehabilitative objectives of the institution or the safety of any person." Id.; see also doc. 76, ex. P. The notice, provided by A. Frazier, mail room personnel, informed Beebe that mail was returned to "Siegrist Konder, Booksellers" in Olympia, Washington. Doc. 76, ex. P. Inmate Beebe states that he "was not told what it was that caused this disapproval, even in general terms." Doc. 76, ex. Q. Furthermore, inmate Beebe relates that he is unable to "grieve the disapproval because" the mail has "already been returned, [and] the objectionable portion could not be reviewed by anyone other than Ms. Frazier." Id. Inmate Beebe further states that the grievance process would be "meaningless" because even if he were successful in an appeal, he could not be successful in receiving mail that is no longer at the institution. Id.
A grievance appeal by inmate Samuel Golden also argues there is a problem with the grievance procedures for mail that is returned. Doc. 76, ex. T. Inmate Golden notes that when the mail is returned and he grieves that decision, "the person reviewing same doesn't have the benefit of the item which formed the basis for this decision, then there's absolutely no possible way whatsoever that this person can properly review this decision." Id. "In this instance, the only thing this person can review is the decision to disapprove the mail; instead of the item which needs to be reviewed to ensure the decision is indeed proper." Id. The grievance appeal was denied. Id.
Plaintiff has also shown that there is an internal debate within the Department of Corrections concerning the application of the mail rules. Doc. 76, pp. 16-1 Plaintiff petitioned the Department of Corrections "to amend rule 33-210.101(8), Fla. Admin. Code" on the basis that lack of a specific provision to hold disapproved mall "during the pendency of a grievance challeng[e]" is a denial of due process. Doc. 76 ex. R. Attached to his petition as exhibits were several e-mails from Department of Corrections personnel. Doc. 76, ex. R, attachment A, p. 1. Those e-mail messages reveal uncertainty about whether the mail should be held and, if so, for how long. Doc. 76, ex. R, attachments:
The petition was ultimately denied. Doc. 76, ex. S.
[B]ut the larger issue remains: can an institution/service immediately return rejected mail to sender? And if not, how long must the mail be held? No small issue, the decision will impact staff time and storage requirements for both the service centers and institutions.
Doc. 76, ex. R, attachment A, p. 2. A message from "Ms. Paul" also questions whether the institution can "return the mail to the sender without holding for 30 days? My understanding was that they could, but I'm not positive." Doc. 76, ex. R, attachment A, p. 2. Allen Overstreet expressed his uncertainty by stating, "My memory fails me on this. . . . If we agreed to treat same as admissible reading material then I would think that the 30 day requirement would apply." Doc. 76, ex. R, attachment A, pp. 1, 2.
In response, Celeste Kemp writes:
[T]he rule does not require that the mail be held pending appeal. This has been a problem that has been discussed with security staff and staff in legal, however, neither felt that the rule needed to be changed. Our problem is that once the correspondence has been returned we only have the mail room officer's opinion upon which to base our decision. With the system that is currently in place we have no way to show that we are being consistent throughout the state or that correspondence is being appropriately returned.Id. Another message from Phil Welsh includes the following statements:
Would appear to me that suggests we would have to give the inmate an opportunity to challenge the decision before it is all final. If we have already returned the correspondence we could possibly be accused of denying him his grievance opportunity. . . .
Doc. 76, ex. R, ex. B, p. 1. The response to that message from Alan Overstreet states his opinion that if an inmate files a grievance within permissible time frames, the mail should be "held pending resolution of the grievance." Id. "Otherwise, the integrity of grievance procedure is compromised." ID. Furthermore, the e-mail message from Kurby Peacock to Perri Dale suggests that a revision to the mail rule is needed and would "provide some clarification and guidance to our Mailroom staff." Doc. 76, ex. R, attachment C. The message specifically addresses the issue of impoundment and includes the following suggested language: "(c) If the inmate files a grievance on impounded or rejected routine mail, the Mailroom staff will hold the impounded or rejected items until the grievance process is completed, including an appeal to the Bureau of Inmate Grievance Appeals." Id.
In the order denying the petition to initiate rulemaking, Secretary Moore stated:
The rule currently provides an adequate review process. Routine mail that is deemed inappropriate is returned to the sender with notification of the reason it was rejected. The inmate is also provided with notification of the rejection and reasons for rejection. If the inmate wishes to appeal the rejection, h can provide the reviewing authority with documentation in the form of a witness statement from the sender describing the contents of the mail. It [sic] the reviewing authority determines that the material described in the statement is admissible, the inmate and institution will be notified and the sender can re-send the mail.
Doc. 76, ex. S. The order is signed by the former Secretary of the Florida Department of Corrections Michael W. Moore. Id.
Analysis
Claim One
"The fundamental requirement of due process is the opportunity to be heard and it is an `opportunity which must be granted at a meaningful time and in a meaningful manner.'" Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965), quoted in Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908, 1915, 68 L.Ed.2d 420 (1981), overruled by Daniels v. Williams, 474 U.S. 327, 328, 1 6 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) (holding "that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."). While Parratt was overruled in part, the principle that due process be "meaningful" has not been abandoned. See Bailey v. Board of County Com'rs of Alachua County. Fla., 956 F.2d 1112, 1126 (11th Cir.), cert. denied by 506 U.S. 832 (1992) and cert. denied by 506 U.S. 832 (1992);Tillman v. Lebanon County Correctional Facility; 221 F.3d 410, 421 (3d Cir. 2000).
Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974) established the minimum standards of due process when a prisoner loses a liberty interest as a result of a disciplinary infraction. Those minimum requirements are: "(1) advance written notice of the claimed violation; (2) a written statement of the fact finders as to the evidence relied upon and the reasons for the disciplinary action taken; and (3) an opportunity to call witnesses and present documentary evidence in defense, when to do so would not be unduly hazardous to institutional safety or correctional goals." Young v. Jones, 37 F.3d 1457, 1459-1460 (11th Cir. 1994), cert. denied 514 U.S. 1054 (1995), citing Wolff, 418 U.S. at 563-66, 94 S.Ct. at 2978-80; Bass v. Perrin, 170 F.3d 1312, 1318 (11th Cir. 1999).
Wolff concerned loss of gain time, a kind of liberty interest created by state law, the loss of which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Bass v. Perrin, 170 F.3d at 1318, citing Sandin v. Connor, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 552 (1995) Wolff, and Dudley v. Stewart, 724 F.2d 1493, 1497-98 (11th Cir. 1984).
Bass v. Perrin also noted that a prisoner may be entitled to procedural due process if there is a change in the conditions of his confinement "so severe that it essentially exceeds the sentence imposed by the court." 170 F.3d at 1318 citing Sandin, 515 U.S. at 484, 115 S.Ct. at 2300.Sandin held that due process liberty interests are "generally limited to freedom from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, at 484, 96 S.Ct. at 2300. The Court said that "[d]iscipline by prison officials in response to a wide range of misconduct falls within the expected parameters of the sentence imposed by a court of law." Id., 115 S.Ct. at 2301.
Plaintiff asserted in his complaint that he has been and will be subjected to "atypical" conditions of extended confinement in the future as a consequence of disciplinary actions. But he has failed to come forward with any evidence of this. Accordingly, the only due process claim which should survive is Plaintiffs claim to due process for future disciplinary actions resulting in loss of gain time.
Plaintiff asserts that gain time is invariably lost and that he also has been subjected to "atypical hardship in disciplinary confinement for extended periods." Doc. 1, p. 15, ¶ 21.
As to this more limited due process claim, it is the third procedural right which is at issue here, the opportunity to call witnesses and present documentary evidence. Wolff provides some insight into the relationship of that right to procedural due process. One reason for the requirement that advance written notice be given, said the Court inWolff, is "to give the charged party a chance to marshal the facts in his defense." Wolff, 418 U.S. at 564, 94 S.Ct. at 2978. "At least a brief period of time after the notice, no less than 24 hours, should be allowed to the inmate to prepare for the appearance before the Adjustment Committee." 418 U.S. at 564, 94 S.Ct. at 2979 (emphasis added).
More is found later in the opinion. After rejecting the claim that an attorney should be afforded a prisoner in a disciplinary hearing, the court said:
Where an illiterate inmate is involved, however, or whether the complexity of the issue makes it unlikely that the inmate will be able to collect and present the evidence necessary for an adequate comprehension of the case, he should be free to seek the aid of a fellow inmate, or if that is forbidden, to have adequate substitute aid in the form of help from the staff or from a sufficiently competent inmate designated by the staff.418 U.S. at 570, 94 S.Ct. at 2982. The Court did not further define the co tours of this right to staff assistance, however, as that particular claim had been made i that case. Id Wolff, therefore, did not address the plight of a prisoner who, due to administrative confinement, has no meaningful way to "marshal the facts in his defense." The only case which the court has found which directly addresses a prisoner's inability to marshal evidence due to confinement status is Eng v. Coughlin, 858 F.2d 889 (2d Cir. 1988). In that case, the court held:
Confinement in SHU [special housing unit] is a factor which, like illiteracy or complexity of charges, makes it nearly impossible for an inmate to formulate a defense, collect statements, interview witnesses, compile documentary evidence, and otherwise prepare for a disciplinary hearing. . . .
Prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when h e is faced with disciplinary charges. . . . If the inmate's right to marshal evidence and present a defense to charges of breaches of prison disciplinary rules is to mean anything, then an inmate so disabled must be provided with some assistance. . . . [S]uch help certainly should include gathering evidence, obtaining documents and relevant tapes, and interviewing witnesses. At a minimum, an assistant should perform the investigatory tasks which the inmate, were he able, could perform for himself.858 F.2d at 897-898; Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998).
The holding came after ruling upon the defense of qualified immunity and other defenses. It is now well-established that the first step is to "determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all, a d if so, proceed to determine whether that right was clearly established at the time of the alleged violation. Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 1295, 143 L.Ed.2d 399 (1999), citing Siegert v. Gilley, 500 U.S. 226, 232-233, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991), and County of Sacramento v. Lewis, 523 U.S. 833, 841, n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).
Florida cases have reached similar results, although not concerned with the role of a staff assistant. In Frantz v. Moore, 778 So.2d 1003 (Fla. 1st DCA 2000) the court held that due process was denied when the investigator failed to interview other prisoners who may have been witnesses after requested to do so by the prisoner charged with the disciplinary infraction. 778 So.2d at 1005. The court also held that due process was denied by failure of the disciplinary team to provide an adequate reason for refusing to produce the confinement videotape of the incident in question. ID. Likewise, the court has repeatedly held that it is improper for a disciplinary team to fail to give an adequate reason for production of evidence which is relevant to their task of deciding the disciplinary charge. Osterback v. Singletary, 679 So.2d 431 (Fla. 1st DCA 1996) (production of the object which officials said was a prohibited weapon); Williams v. James, 684 So.2d 868, 869 (Fla. 1st DCA 1996) (production of witnesses requested by the prisoner); Vaughn v. Singletary, 729 So.2d 411, 412 (Fla 1st DCA 1999) (production of clothing alleged to be escape paraphernalia).
The Florida Administrative Rules reveals the Department's position, as a matter of written policy, that a staff assistant is to be provided only to ensure the i mate understands the proceedings and not to act as an advocate or defense attorney. There is no provision that specifically states that the assistant must collect evidence which the inmate is unable to do by virtue of his placement in administrative confinement pending the prison disciplinary hearing. The definition of a staff assistant states that the official is one "who is assigned by the team to assist the inmate" but is "not to take the position of an advocate or defense attorney." FLA. ADMIN. CODE R. 33-601.302(14). The rules state the assistant is assigned "under the following circumstances:" (1) the first provision is to "explain the charges or disciplinary procedures to the inmate;" (2) an assistant is provided if an "inmate is illiterate," does not understand English, or has "a disability that would hinder his or her ability to represent himself or herself;" or (3) when an issue is complex making "it unlikely that the inmate will be able to properly represent himself." FLA. ADMIN. CODE R. 33-601.302(14). Nothing within this rule explicitly effectuates an inmate's right to collect and present evidence under Wolff.
Rule 33-601.305 provides that an "investigating officer" is responsible for interviewing the staff member who wrote the DR, interviewing the charged inmate, delivering the DR to the inmate, obtaining the inmate's version of the charged events, asking the inmate if he has any witnesses, getting the inmate's signature oh the Witness Disposition Form, interviewing others who may have pertinent information, recording the results of the investigation on the Disciplinary Investigative Report Form, and "[a]ppointing a staff assistant if necessary." FLA. ADMIN. CODE R. 33-601.305. Nothing within this rule affirmatively acknowledges or supports an inmate's right to marshal evidence as expressed in Wolff either.
Plaintiffs evidence, considered in a light most favorable to Plaintiff, could reasonably lead to a determination that it is routine for the investigating officer or the disciplinary team to fail to "marshal" the evidence of an accused prisoner in confinement who loses gain time as a consequence of the disciplinary proceeding. The fact-finder at a trial could also reasonably conclude that it is Defendant's policy that a staff assistant is not allowed to collect evidence for the accused prisoner. Indeed, it is without dispute that staff assistants are never appointed to help a prisoner collect evidence. Summary judgment in favor of Defendant as to claim one should be denied.
Before leaving claim one, however, the Heck question must again be addressed. Defendant asserts that Plaintiffs claims are barred underHeck. Doc. 17, pp. 12-15. The Heck argument, as a motion to dismiss, was previously rejected. See docs. 18, 21.
It is now plain, however, that the only reason that the due process claim survives at all is that Plaintiff seeks due process in the future whenever gain time is to be taken from him by means of a disciplinary proceeding. The complaint was previously construed as a challenge to prison rules and seeking injunctive relief related to those rules. It was not been considered as a challenge to a particular past prison disciplinary hearing. The existence of past harm was relevant to the question of standing, but it was believed that the results of this suit would not call into question any previous disciplinary action against Plaintiff wherein he lost gain time. Given the importance of a correct resolution of the Heck problem to this suit, the issue will be re-examined in detail.
Plaintiffs due process claim lies at the intersection of habeas corpus and 42 U.S.C. § 1983 as explained in Preiserv. Rodriguez, 411 U.S. 475, 93 S.Ct 1827, 36 L.Ed.2d 439 (1973), Wolff v. McDonnell, supra; Heck v. Humphrey, supra; Sandin v. Conner, supra and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). In Preiser, inmates who lost good time credits through prison disciplinary action sued under § 1983 for restoration of those credits. Preiser "held that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release. . . ." Preiser, 411 U.S. at 488-490, 93 S.Ct. at 1835-1837, explained in Heck, 512 U.S. at 481-82, 114 S.Ct. at 2369. Preiser also noted, albeit in dicta, that "a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody." 411 U.S. at 499, 93 S.Ct. at 1841.
Thereafter,'Wolff (challenging conditions of confinement, that is, prison rules, regulations, and practices) affirmed that a claim for restoration of good-time credits is foreclosed by Preiser and must be brought in habeas, but found that a complaint seeking damages is appropriate as a § 1983 claim. 418 U.S. at 554, 94 S.Ct. at 2974. As discussed earlier, Wolff established the contours of due process when statutory gain time is taken for a disciplinary infraction.
Twenty years after Wolff, the Court decided Heck, which involved a claim for money damages when the plaintiff alleged unlawful acts by state officials leading to his arrest and subsequent conviction. Heck, 512 U.S. at 479, 114 S.Ct. at 2368. Although the plaintiff there sought monetary damages, he did not seek injunctive relief and his criminal appeal was pending when he filed the civil rights suit. ID. Upholding the principles of Preiser that "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement," the Court concluded that even though a plaintiff only sought money damages (a remedy unobtainable in habeas), the claim would be barred if "establishing the basis for the damages claim necessarily demonstrate[d] the invalidity of the conviction." Heck, 512 U.S. at 481-82, 114 S.Ct. at 2369, citing Preiser, 411 U.S. at 494, 93 S.Ct. at 1838. Heck distinguished Wolff, which "recognized a § 1983 claim for using the wrong procedures, not for reaching the wrong result ( i.e., denying good-time credits)." Heck, 512 U.S. at 482-83, 114 S.Ct. at 2370. The Court carefully noted that there was no "reason to believe" from the Wolff opinion, "that using the wrong procedures necessarily vitiated the denial of good-time credits." 512 U.S. at 483, 114 S.Ct. at 2370. In other words, "the claim at issue in Wolff did not call into question the lawfulness of the plaintiffs continuing confinement." ID. (emphasis in original).
At the center of the Heck decision was concern over parallel litigation which could create conflicting resolutions and an unwillingness to permit collateral attack on a conviction through a civil rights case. 512 U.S. at 484-86, 114 S.Ct. at 2371-72. Thus, Heck held that:
. . . to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct a peal, 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, 28 U.S.C. § 2254.Id., at 486-87, 114 S.Ct. at 2372. Accordingly, a court must determine whether a claim bears such a "relationship to a conviction or sentence that has not been so invalidated." Id., at 487, 114 S.Ct. at 2372. If "judgement in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . the complaint must be dismissed . . ." Id.
On the other hand, if a successful action would "not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed. . . ." ID. (emphasis in original). The Court cited a claim for an unreasonable search as an example of a § 1983 claim that might be possible because it "would not necessarily imply" the invalidity of a conviction. Id., at 487, n. 7, 114 S.Ct. at 2372, n. 7 (emphasis in original). Doctrines like independent source, inevitable discovery, "and especially harmless error" could support the introduction of evidence in a criminal trial and the outstanding conviction, yet still permit a civil rights claim if the plaintiff could show he was harmed in some "actual, compensable" way, so long as the injury was not the conviction and imprisonment. ID. Thus, there are possible civil rights claims which could proceed if they would not necessarily call into question the lawfulness of the plaintiffs conviction or the length of his confinement.
Heck was followed three years later by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), which extended Heck's principles to the prison setting and the loss of gain time. In Balisok, an inmate filed a § 1983 suit "alleging that the procedures used in his disciplinary proceeding violated his Fourteenth Amendment due process rights." Balisok, 520 U.S. at 643, 117 S.Ct. at 1586. Specifically, plaintiff claimed that the "hearing officer at his disciplinary proceeding, concealed exculpatory witness statements and refused to ask specified questions of requested witnesses, . . . which prevented [the plaintiff from introducing extant exculpatory material and `intentionally denied' him the right to present evidence at his defense. . . ." ID. at 644, 117 S.Ct. at 1587. Balisok had alleged that he "was completely denied the opportunity to put on a defense" by a biased hearing officer who wilfully suppressed exculpatory evidence. Id. at 647, 117 S.Ct. at 1588.
Inmate Balisok sought "a declaration that the procedures employed by state officials violated due process, compensatory and punitive damages for use of the unconstitutional procedures, an injunction to prevent future violations, and any other relief the court deem[ed] just and equitable." 520 U.S. at 643, 117 S.Ct. at 1586. Balisok did not seek restoration of good-time credits which had been forfeited, but "expressly reserved the right to seek that relief in an appropriate forum." 520 U.S. at 644, 117 S.Ct. at 1587. Another important aspect to this case was the fact that Balisok "posited that the procedures were wrong, but not necessarily that the result was." Id., at 645, 117 S.Ct. at 1587.
In holding the claim barred by Heck, the Court concluded "that the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment." Id. at 645-46, 117 S.Ct. at 1587-88 (emphasis added). Thus, a claim that wrong procedures were used but that the result was not incorrect as a substantive matter, was a claim still potentially barred by Heck. ID. at 646, 117 S.Ct. at 1588. Noting that if a criminal defendant was convicted after a trial before a "partial judge" he would be entitled to have the "conviction set aside, no matter how strong the evidence [was] against him," the Court concluded that the "due process requirement for a prison disciplinary hearing . . . [were] not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresse[d] evidence of innocence." ID. at 647, 1 7 S.Ct. at 1588.
The Supreme Court also rejected the argument "that a judgment in his favor would not imply the invalidity of the loss of his good-time credits because [state] courts follow a `some or any evidence' standard," as set forth by Superintendent. Mass. Correctional Institution at Wolpole v. Hill, 472 U.S. 445, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). 520 U.S. at 647-48, 117 S.Ct. at 1588-89. Notably, however, Justice Ginsburg's concurring opinion, with whom Justices Souter and Breyer joined, stated that "other procedural defects" might be such as would not necessarily imply the invalidity of the good-time forfeiture. 520 U.S. at 649-50, 117 S.Ct. at 1589.
Implicit in the Balisok decision is the assumption that a "conviction or sentence" as those terms are used in Heck, includes a finding of guilty in a prison disciplinary proceeding if the prisoner's sentence has been lengthened by the loss of gain time. Although there is a circuit split on this point, the majority of courts to consider the issue have held that there must be a loss of gain time such that an inmate's period of incarceration is increased by the disciplinary punishment imposed.Torres v. Fauver, 292 F.3d 141,143, 151-52 (3d Cir. 2002) (holding that "the favorable termination rule does not apply to claims that implicate only the conditions, and not the fact or duration, of a prisoner's incarceration."); Leamer v. Fauver, 288 F.3d 532, 542-44 (3d Cir. 2002);Portley-EI v. Brill, 288 F.3d 1063 (8th Cir. 2002) (applying Heck andBalisok to claims where inmate lost gain time even though he did not seek restoration of such); Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (concluding that a § 1983 suit challenging "the validity of a disciplinary or administrative sanction that does not affect the overall length of the prisoner's confinement is not barred by Heck and Edwards."); DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir. 2000) (overruling Stone-Bey v. Bames, 120 F.3d 718 (7th Cir. 1997), and joining with the Second Circuit in Jenkins v. Haubert in holding "that a prisoner may bring a § 1983 claim `challenging the conditions of [his] confinement where [he] is unable to challenge the conditions through a petition for federal habeas corpus.'"); Clarke v. Stalder, 154 F.3d 186, 188 (5th Cir. 1998) (claims barred by Heck where inmate lost "ten days good-time credits");Brown v. Plaut, 131 F.3d 163, 167-68 (D.C. Cir. 1997), cert. denied 2524 U.S. 939 (1998) (making a distinction based on Preiser's delineation between challenges effecting the fact or length of custody and challenges to conditions of confinement); see also Jackson v. Johnson, 15 F. Supp.2d 341, 349 (S.D. N.Y. 1998) (finding that Balisok "does not apply where the disciplinary hearing at issue has no impact on the fact or duration of the prisoner's confinement in prison."). While the Seventh Circuit originally gave a broad reading of Balisok to apply to any case regardless of whether the duration of an inmate's sentence was effected, Stone-Bey v. Barnes, 120 F.3d 718 (7th Cir. 1997), the Circuit has now adopted the view of the Second Circuit as expressed in Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999), and applied Balisok only to cases which "`lie at the intersection' of sections 2254 and 1983." DeWalt v. Carter 224 F.3d 607, 617 (7th Cir. 2000).
Notably, the DeWalt case was not "`at the intersection' of sections 2254 and 1983" because the plaintiff did "not challenge the fact or duration of his confinement, but only a condition of his confinement — the loss of his prison job." DeWalt, 224 F.3d at 617.
The following unpublished cases have also been located showing, at least, the inclination of those circuits although no published cases have been found: Pierce v. Freeman, 121 F.3d 699, 1997 WL 467533, *2 (Table, Text in WESTLAW) 4th Cir., Aug. 15, 1997) (holding that because relief "would necessarily imply that the revocation of Pierce's credits was invalid, [thus,] habeas corpus is unmistakably the appropriate vehicle for Pierce's claims."); (finding that because plaintiff's claim "ha[d] nothing to do with the duration of his stay in prison, the Heck procedural bar [did] not apply."). Collier v. Dragoo, 153 F.3d 726, 1998 WL 436571, *1-2 (10th Cir., July 30, 1998), cert. Denied 525 U.S. 1075 (1999).
That leaves the Sixth Circuit with the only published opinion applyingBalisok to a case in which the inmate did not lose gain time. Huey v. Stine, 230 F.3d 226, 2229 (6th Cir. 2000) (barring claims where the only punishment received in the prison disciplinary proceeding was "thirty days of detention and thirty days loss of privileges.") Respectfully, that case was wrongly decided. The court there equated the administrative "judgment" of a disciplinary team in a prison setting with a criminal judgment of conviction as inHeck.
The court in Huey wrote: "In order to grant the plaintiff in this case the relief that he seeks, we would have to unwind the judgment of the state agency." 230 F.3d at 230. The "judgment," however, only resulted in 30 days "detention," that is, more restrictive housing within the prison. Mr. Huey, the prisoner, was not going to obtain earlier release if he won his suit. Thus, the "judgment" had no effect upon the length of incarceration. Sandin informs us that more restrictive housing for that length of time does not implicate the due process clause at all. While that analysis is beside the point when one is trying to decide the procedural question of when a petition for habeas corpus must be sought, it does cast some indirect light on the inappropriateness of extending Balisok to disciplinary proceedings where no gain time has been lost. Huey, however, involved an Eighth Amendment claim of unnecessary force rather than a due process claim, and had the procedural issue been correctly decided, Hueys § 1983
The only case in the Eleventh Circuit Court of Appeals to consider Heck and Balisok is the recent decision of Harden v. Pataki, ___ F.3d ___, 2003 WL 262474 (11th Cir., Feb. 10, 2003). There, the court held "that a claim filed pursuant to 42 U.S.C. § 1983 seeking damages and declaratory relief for the violation of a state prisoner's federally protected extradition rights is not automatically barred by Heck."Harden, 2003 WL 262474, at *9. In reaching that conclusion, the court acknowledged the guidance in Spencer v. Kemna, 523 U.S. 1, 21, 118 S.Ct. 978, 990, 140 L.Ed.2d 43 (1998), that a § 1983 could not proceed "if the direct or indirect effect of granting relief would be to invalidate the state sentence he is serving." Harden, 2003 WL 262474, at *3. The opinion also reiterated Heck's principle that "if the district court determines that the plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Heck, 512 U.S. at 487, 114 S.Ct. at 2372-73, quoted in Harden, 2003 WL 262474, at *3. Although not directly on point, this decision does suggest acceptance by the Eleventh Circuit Court of Appeals that if a claim does "not `necessarily imply the invalidity of the [conviction or sentence], then Heck would have no application at all." Harden, 2003 WL 262474, at *3, citing Spencer 523 U.S. at 17, 118 S.Ct. at 988 (citations omitted). Supporting that finding is the fact that the court acknowledged, albeit in a footnote, the Second Circuit's opinion in Jenkins v. Haubert, supra, that Heck and Edwards would not bar "a prisoner's § 1983 claim alleging bias by the prison's hearing officer in a disciplinary proceeding affecting only the conditions, but not the fact or duration, of confinement." 2003 WL 262474, at *9, n. 9. The court stated that "[o]nly if such claims are purely procedural, as in Wolff, where the alleged procedural defects-lack of advance written notice of the charges and a written statement of the basis of the decision-or the outcome of the action, would not necessarily invalidate an underlying conviction or sentence, will they be cognizable under § 1983." Id.
In summary, Preiser is the foundation of Wolff, Heck, and Balisok. Any prisoner claim considering the potential bar of Heck and Balisok must be rooted in Preiser's concern with the collision between civil rights relief and habeas corpus relief. If there will not necessarily be a collision because judgment in the plaintiffs favor will not affect a criminal judgment or the length of the inmate's period of incarceration, the civil rights claim may go forward.
Here, Plaintiff challenges departmental rules. He is not contesting the results of a particular disciplinary proceeding. Plaintiffs only Defendant is the Secretary of the Florida Department of Corrections, an official with no involvement with any particular disciplinary proceeding against Plaintiff. Plaintiffs requests for declaratory judgment are not aimed at declaring the result in a disciplinary proceeding to be invalid. Rather, he seeks a declaration that the rule per se is constitutionally infirm. See Cooper v. Schriro, 189 F.3d 781, 784 (8th Cir. 1999) (assuming that plaintiff had standing and concluding that the claim for prospective "injunctive relief — enjoining defendants from conducting hearings that lack constitutionally required process in the future — survives because such relief would not call into question the underlying punishment"). To have standing to challenge the Department's rules, Plaintiff must show personal injury and a causal connection, both of which were contested by Defendant. See doc. 17, pp. 6-8. It is in that light that Plaintiffs evidence concerning his past injury has been considered, not as evidence supporting a challenge to the results of a disciplinary proceeding. It is also only within that light that Plaintiffs evidentiary submissions of the disciplinary proceedings of other inmates makes sense as Plaintiff cannot challenge the results of those proceedings and would have no other reason to have submitted that evidence in this case.
In Clarke, the Fifth Circuit acknowledged that prospective injunctive relief might be available, but held in that case that the relief sought was "very different" from that desired in Balisok and concluded that the plaintiffs request for a "facial declaration of the unconstitutionality of" a prison rule to be "so intertwined with [plaintiffs] request for damages and reinstatement of his lost good-time credits that a favorable ruling on the former would `necessarily imply' the invalidity of his loss of good-time credits. 154 F.3d at 189. Clarke is distinguishable, however, because the inmate was charged and found guilty of violating the very prison rule he was challenging.
Further, Plaintiff does not claim a denial of due process because the hearing team was biased, a claim that, on its face, necessarily would result in the vacation of that disciplinary conviction. See Balisok, supra. Instead, Plaintiffs claim challenges the process by which he might obtain and present exculpatory evidence. It is several steps from this claim and the conclusion that success on the claim would necessarily overturn the disciplinary action. Further, it is the burden of Defendant on a motion for summary judgment to point to a lack of evidence to support Plaintiffs claims. Defendant has not come forward with anything to show that Plaintiffs success on claim one will necessarily result in restoration of gain time lost in any of the prior disciplinary proceedings which Plaintiff has identified. There has been no case-specific showing that the deprivation of staff assistance to marshal evidence in Plaintiffs defense necessarily resulted in the suppression of exculpatory evidence which would have made a difference in the outcome of any one of those disciplinary actions.
There is a second, more compelling, reason to find that this case is not like Balisok, however. Plaintiff is serving a life sentence. "[U]nder a life sentence, he cannot earn gain time, no matter how exemplary his conduct may be while incarcerated." Tal-Mason v. State, 700 So.2d 453, 455 (Fla. 4th DCA 1997), citing FLA. STAT. § 944.275(3)(a); Burdick v. State, 584 So.2d 1035, 1038-39 (Fla. 1st DCA 1991) (noting that prisoner serving a life term could accumulate incentive gain time "on paper," which would be credited if the life sentence were commuted to a term of years, after service of the minimum mandatory), approved in part and quashed in part (other grounds), 594 So.2d 267 (Fla. 1992). Thus, prison officials keep track of gain time for administrative purposes in the event that the inmate is ultimately eligible fo it due to executive clemency, but the possibility that this will happen is speculative since executive clemency is rarely granted. The reality is that an inmate in Plaintiff's situation is virtually unaffected by either the forfeiture or award "on paper" of gain time. Thus, even if success on claim one would necessarily result in restoration of gain time lost in the prior disciplinary proceedings which Plaintiff has identified, it would not necessarily alter the length of his incarceration.
Prisoners in Florida serving a life sentence (assuming that they are beyond any 25 year mandatory term, or do not have any such mandatory term to serve) try to live "DR free" for ten years so as to be eligible for executive clemency. See Doc. 76, ex. L, ¶ 17. But executive clemency is still too speculative for this to affect the court's Balisok analysis or to require that this suit proceed in habeas.
Claim one may proceed under § 1983. Thus, for the reasons previously discussed, Defendant's motion for summary judgment as to claim one should be denied.
Claim Two
An inmate's right to receive mail is protected by the First Amendment and is well established. Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). First Amendment rights may be diminished by prison regulations so long as the regulations are "reasonably related to legitimate penological interests." Thornburgh, 490 U.S. at 409, quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); see also Hakim v. Hicks, 223 F.3d 1244, 1247 (11th Cir. 2000) (noting that a challenge to a prison regulation which burdens an inmate's constitutional rights is "actionable . . . only if the regulation is unreasonable.").
Deference must be given to the judgment of prison officials in light of the "inordinately difficult undertaking" of modern prison administration.Turner 482 U.S. at 85, 107 S.Ct. at 2259; Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993); see also Lawson v. Singletary, 85 F.3d 502, 509-510 (11th Cir. 1996). The complexity of prison management is exceedingly great, and courts are ill-equipped to deal with such problems. Lawson, 85 F.3d at 510; Procunier v. Martinez, 416 U.S. 396, 404-05, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974), overruled on other grounds by Thornburgh. Yet, the "policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution." Procunier, 416 U.S. at 405, 94 S.Ct. at 1807. "When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights." Id., at 405-6, 94 S.Ct. at 1807-08, citing Johnson v. Avery, 393 U.S. 483, 486, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969).
An inmate's First Amendment right to send and receive mail is a protected liberty interest under the Fourteenth Amendment's Due Process Clause. See Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999), cited in Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002). Thus, "the decision to censor or withhold delivery of [inmate mail] must be accompanied by minimum procedural safeguards." Procunier, 490 U.S. at 413-14, 109 S.Ct. at 1874. At a minimum, an inmate is entitled to: (1) notice that mail addressed to him (or written by him) has been rejected; (2) "that the author of that letter be given a reasonable opportunity to protest that decision, and (3) that complaints be referred to a prison official other than the person who originally disapproved the correspondence." Procunier, 416 U.S. at 418-19, 94 S.Ct. at 1814 (emphasis added). Thornburgh overruled Procunier to the degree that courts were instructed to use the Turner v. Safley standard of review in analyzing prison regulations that infringe upon constitutional rights. Thornburgh, 490 U.S. at 404, 109 S.Ct. at 1877. However, Thornburgh did not alter the procedural obligations established by Procunier, supra, set forth above. Nevertheless, Thornburgh did provide additional guidance on the issue of what procedural steps should be taken when a decision to withhold mail has been made. 490 U.S. at 406,109 S.Ct. at 1878. The Court favorably viewed the following procedural safeguards which had been adopted by the federal bureau of prisons by regulation: (1) designated staff could screen incoming mail, but only the warden could reject a publication; (2) the inmate must be promptly advised in writing of the reasons for a rejection; (3) the publisher or sender must be provided a copy of the rejection letter; (4) notice must refer specifically to what was considered "objectionable;" (5) publisher or sender could "obtain an independent review of the" rejection; (6) the inmate could appeal through the prison's administrative grievance system; (7) an inmate is permitted "to review the rejected material for the purpose of filing an appeal `unless such review [could] provide the inmate with information of a nature which is deemed to pose a threat or detriment to the security, good order or discipline of the institution or to encourage or instruct in criminal activity.'" Thornburgh, 490 U.S. at 406, 109 S.Ct. at 1878. The Court said it was "comforted by the individualized nature of the determinations required by the regulation." 490 U.S. at 416, 109 S.Ct. at 1883.
Procunier was concerned with outgoing correspondence. Thornburgh, 490 U.S. at 413, 109 S.Ct. at 1881.
The Court explained that Procunier should not have been interpreted to subject "the decisions of prison officials to a strict'least restrictive means' test." Thornburgh, 490 U.S. at 411, 109 S.Ct. at 1880. It simply required "that a challenged regulation be `generally necessary' to a legitimate governmental interest" and that there be a close fit between the challenged regulation and the interest it purported to serve." 490 U.S. at 411, 109 S.Ct. at 1880, citing Procunier, 416 U.S. at 414, 94 S.Ct. at 1812.
Defendant asserts that inmates do not have a "liberty interest in receiving contraband through the mail" and, without that protected interest, they are not entitled to due process. Defendant also suggests that Plaintiff has due process in that he receives "notice of the rejection of his incoming mail," is "afforded an opportunity to protest the decision, and the protest [is] reviewed by an official other than the one who originally rejected the correspondence." Doc. 17, p. 20. Defendant states, in response to Plaintiffs petition for rule-making, that as an alternative to retaining the offending mail for examination during the appeals process, a prisoner can request that the sender provide a description of the mail which was rejected.
Plaintiff does not dispute that there are legitimate security concerns with mail in the prison setting and that there often are legitimate reasons for disapproving the content of mail or removing contraband. Plaintiff also does not dispute that a separate prison official reviews the decision to deny the mail. Plaintiffs challenge here is that the process of review is ineffective because without an opportunity to review the mail, a prisoner has no means to argue that the decision was incorrect.
Plaintiff has submitted evidence that mail is often "immediately returned" and not held for any period of time for review. He has also presented evidence that mistakes have been made and some decisions to return mail have been erroneous. He has shown that the deprivation of mail results in delay, burdens First Amendment rights to "expression," and that mail deprivations can result in the complete denial of First Amendment rights when returned or rejected letters cannot subsequently be located to be resent when the erroneous denial is discovered.
"Communication by letter is not accomplished by the act of writing words on paper. Rather, it is effected only when the letter is read by the addressee. Both parties to the correspondence have an interest in securing that result, and [withholding] of the communication between them necessarily impinges on the interest of" the prisoner and the person with whom he or she is attempting to communicate. Procunier, 416 U.S. at 408, 94 S.Ct. at 1809.
Also noteworthy is Plaintiffs evidence showing recognition of the problems in disapproving mail by Department of Corrections officials. Plaintiff's evidence shows an uncomfortable acceptance by prison officials of the fact that when mail is returned, there is only the mail room officer's opinion to review. There is concern that an inmate is denied effective and meaningful appellate review in the grievance procedures and that the "integrity" of the grievance procedures may be "compromised."
In this regard, that Defendant retains contraband pending a disciplinary hearing is beside the point. This does not address the problem of censorship of letter content. Further, a disciplinary proceeding may not always be warranted or instituted, and appeal of the decision is a separate procedure.
Defendant plainly has a legitimate governmental interest to justify review of incoming prison mail and to forbid the introduction of such mail if it creates a security risk. But Plaintiff has a First Amendment right to receive incoming mail. The denial of that right must be accompanied by due process. As discussed earlier, "[t]he fundamental requirement of due process is the opportunity to be heard and it is an `opportunity which must be granted at a meaningful time and in a meaningful manner.'" Armstrong v. Manzo, 380 U.S. at 552, 85 S.Ct. at 1191.
Considered in a light most favorable to Plaintiff, unless a prisoner is permitted briefly to see the mail which has been rejected, the prisoner has no basis to argue for a different result on appeal. Occasions will inevitably arise when giving the prisoner even a brief view of the contents of the letter would create a security risk (such as a letter conveying escape plans or plans to commit a crime), but the basis for a denial of an opportunity to contest the censorship decision could be established in the particular case. Further, that justifiable exceptions might exist does not answer the due process question of providing a meaningful opportunity for hearing in the normal case.
The expense of such a procedure has yet to be considered. Expense and administrative burden are part of the Turner analysis. Defendant, however, has not put on any evidence as to that issue and has not pointed to any absence of evidence to support Plaintiffs claims in that respect. Accordingly, summary judgment should not be granted to Defendant as to claim two.
Accordingly, it is RECOMMENDED that Defendant's motion for summary judgment, doc. 17, be DENIED, and that the case be REMANDED to the undersigned for further proceedings.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.