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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11722
________________________
D.C. Docket No. 2:14-cv-00422-SPC-MRM
JAMAAL ALI BILAL,
f.k.a. John L. Burton,
a.k.a. Superman,
Plaintiff - Appellant,
versus
GEO CARE, LLC,
FNU GARZA,
FCCC Custody Officer, individually and in his official capacity as Transport
Officer,
FNU JARVIS,
FCCC Custody Officer, individually and in his official capacity as Transport
Official,
THE GEO GROUP, INC.,
CORRECT CARE SOLUTIONS, LLC, et al.,
Defendants – Appellees,
DAVID WILKINS,
Secretary, Department of Children & Families,
Defendant.
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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 9, 2020)
Before MARTIN, ROSENBAUM, and TALLMAN,* Circuit Judges.
ROSENBAUM, Circuit Judge:
The civilly committed may not be punished merely because they are civilly
committed. And under the Fourteenth Amendment, they enjoy a substantive-due-
process right to liberty interests in, among other things, safety and freedom from
bodily restraint. So though the State may appropriately take measures to protect the
public from civilly committed individuals found to be dangerous, it must do so in a
way that is consistent with professional judgment about what is necessary.
Plaintiff-Appellant Jamaal Ali Bilal is civilly committed and housed in the
Florida Civil Commitment Center (“FCCC”), in part because he has been found to
represent a danger to the public. Bilal alleged that, during a trip to a court hearing
located about 600 miles from the FCCC, Defendants-Appellees, who include the
Secretary of Florida’s Department of Children and Families (“DCF”) and several
individuals associated with the FCCC (which is under the purview of the Secretary
of DCF) and with GEO Care, Inc. (which, by contract, runs the FCCC), restrained,
*
The Honorable Richard C. Tallman, Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
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transported, and temporarily housed him in a manner that was inconsistent with
professional judgment and therefore violated his Fourteenth Amendment rights. The
district court disagreed and dismissed the case for failure to state a claim. After
careful consideration and with the benefit of oral argument, we now affirm in part
and reverse in part.
I.
A. Background Facts
Bilal is civilly committed at the FCCC under Florida’s Involuntary Civil
Commitment of Sexually Violent Predators Act, Fla. Stat. § 394.910, et seq.,
commonly known as the Jimmy Ryce Act. He was sent to the FCCC in 2001 after
he stipulated that he qualified as a “sexually violent predator,” meaning he was
previously convicted of a sexually violent offense, and at the time of commitment,
he had a “mental abnormality or personality disorder” that makes him “likely to
engage in acts of sexual violence if not confined in a secure facility for long-term
control, care, and treatment.” Fla. Stat. § 394.912(10). Under Florida law, anyone
determined to be a “sexually violent predator” is committed to the custody of the
DCF and housed in a secure facility until the individual’s condition has improved to
the point that it is safe to release him into the community. Fla. Stat. § 394.917(2);
see also Pesci v. Budz, 730 F.3d 1291, 1299 (11th Cir. 2013). Those committed
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under the statute are entitled to periodic judicial review to make that determination.
Fla. Stat. § 394.918(1).
A state-court judge in Escambia County ordered a hearing at the Escambia
County Courthouse in Pensacola, Florida, to determine whether Bilal was eligible
for release from civil confinement. Garza and Jarvis,1 two armed guards from the
FCCC, transported Bilal roughly 600 miles by van to Escambia County. The state
court then conducted the relevant hearing on September 10, 2013. Following the
hearing, Bilal was housed in the Santa Rosa County Jail until October 10, 2013,
when the judge denied Bilal’s release from civil confinement. At that time, Garza
and Jarvis drove Bilal the approximately 600 miles back to the FCCC.
B. Procedural History
Bilal filed a pro se complaint in state court, invoking 42 U.S.C. § 1983 and
Florida Statute § 768.28, and asserting that Defendants-Appellees GEO Care, Inc.,
(“GEO”), David Wilkins, Garza, and Jarvis (collectively referred to as the
“Defendants”), violated his civil rights, based on things that he alleges happened
during the trip to and from Escambia County. At the time of the events alleged in
the complaint, Wilkins served as the Secretary of Florida’s DCF; by contract with
1
The complaint indicates only the last names of the transport guards, so we refer to them
by their last names, Garza and Jarvis.
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DCF, GEO operated and managed the FCCC; and as we have noted, FCCC guards
Garza and Jarvis transported Bilal.
Defendants removed the action to the United States District Court for the
Middle District of Florida, which ultimately dismissed it. But along the way, Bilal
filed a Third Amended Complaint, which added new defendants and is the operative
pleading in this case. Among other things, the Third Amended Complaint began
referring to GEO as GEO Care, LLC. GEO nonetheless continued throughout the
litigation to respond.2 Because GEO has responded throughout this litigation to
filings addressed to GEO Care, Inc., and GEO Care, LLC, we use “GEO” in this
opinion to refer to both designations. The Third Amended Complaint also ceased to
mention Wilkins, substituting then-DCF Secretary Mike Carroll in his place. See
Fed. R. Civ. P. 25(d).
We review the relevant allegations in the Third Amended Complaint. But
before doing so, we note that we are reviewing the district court’s order granting the
defendants’ motion to dismiss for failure to state a claim under Federal Rule of Civil
2
The alternate name appears to be a misnomer rather than the identification of an incorrect
party. Based on the parties’ actions—particularly GEO’s responsiveness to filings addressing
GEO Care, Inc., on the one hand, and GEO Care, LLC, on the other—no uncertainty exists about
the identity of the defendant and we can discern no prejudice to GEO. See Morrel v. Nationwide
Mut. Fire Ins. Co., 188 F.3d 218, 224 (4th Cir. 1999) (misnomer was immaterial since the
defendant was not misled in any way by it). Nor has GEO asserted any defense or filed any motion
raising this issue, so any objection appears to have been waived. And under these circumstances,
where Bilal seems to have made a mistake as to the name, GEO “should not be permitted to take
advantage of a mere misnomer that injured no one.” Grandey v. Pac. Indem. Co., 217 F.2d 27, 29
(5th Cir. 1954).
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Procedure 12(b)(6). So we set forth the allegations in the complaint as though they
are true, viewing them in the light most favorable to Bilal. Am. Dental Ass’n v.
Cigna Corp., 605 F.3d 1283, 1288 (11th Cir. 2010). Of course, if Bilal’s action
proceeds, he will have to prove his allegations.
Now, the allegations: during the trip to and from Escambia County, Garza
and Jarvis used leg irons, waist chains, and black-box 3 restraints on Bilal. They also
deprived Bilal of food, except for a bottle of water and two slices of cheese on two
stale pieces of bread, and they refused to allow him any bathroom breaks during the
lengthy trip. Because Bilal needed to defecate, he had to do so into his clothing and
then sit in his feces for about 300 miles of the trip. Plus, the van seats were cramped,
and that, in combination with the shackling, aggravated his pre-existing knee
injuries. Adding to Bilal’s misery, the guards traveled at excessive speeds as Garza
“leisurely review[ed] child porn on his cellphone.”
Based on these allegations, Bilal set forth several counts in his pro se
complaint. Because of Bilal’s pro se status, the breakdown of the specific counts is
not neat and tidy. But we construe Bilal’s complaint to have made the following
claims.
3
A black box is a rectangular device that fits over a pair of handcuffs. It is designed to
limit hand movements and prevent access to the handcuff’s key holes.
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As relevant on appeal, in Counts I, IV, and VI 4, Bilal alleged that Garza,
Jarvis, GEO, and the Secretary of DCF violated his Fourteenth Amendment due-
process rights on the 1,200-mile roundtrip journey between the FCCC and the
Escambia County courthouse. He complained that transporting him in a van (as
opposed to an airplane) for more than 1,200 miles roundtrip, while he was in leg
irons, waist chains, and a black-boxed set of handcuffs; feeding him only a single
cheese sandwich, which he asserts gave him botulism; putting him in a cramped van
in shackles while he had injuries to his knees, which then required him to need to
undergo surgeries; forcing him to endure no bathroom stops during the entire
journey, which caused him to defecate on himself midway through the trip to
Escambia County “and caused suppression and wounded his bowel movements that
caused constipation”; and traveling at speeds in excess of 90 miles per hour
constituted unjustified punishment and imposed unnecessary and unconstitutional
restraints, in violation of the Fourteenth Amendment.
In Count II, asserted against all Defendants, Bilal challenged his stay in the
Santa Rosa County Jail while the court was deciding whether to release him. Bilal
alleged the stay, like the journey to and from Escambia County, violated the
Fourteenth Amendment. He complained that while at the jail, he missed out on
4
The Third Amended Complaint contains two counts numbered “VI.” We refer to the first
one.
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mental-health treatment, which caused him not to be able to advance in his mental-
health treatment back at the FCCC; Garza and Jarvis, annoyed with Bilal’s
complaints, influenced the jail guards to act abusively towards Bilal, which caused
Bilal to become suicidal and to have to spend two weeks in a suicide cell in the jail;
and he was placed in confinement at the jail and did not have access to television,
phone calls, the law library, visitation, fresh-air exercise, canteen privileges, or
religious groups. 5
Bilal sought declaratory and injunctive relief and compensatory and punitive
damages.
After Bilal filed the Third Amended Complaint, the district court issued an
order directing Bilal, by July 1, 2015, to complete service-of-process forms for the
ten additional defendants (including Carroll and GEO Care, LLC) and to return ten
additional copies of the Third Amended Complaint to the court for service. The
Order warned that “[f]ailure to return the completed forms within this allotted time
period without further explanation will result in dismissal of this action without
further notice.”
5
Bilal also made some other claims that are not at issue on appeal, since he did not brief
them. We therefore do not address them. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1330 (11th Cir. 2004) (“[A] legal claim or argument that has not been briefed before the [appellate]
court is deemed abandoned and its merits will not be addressed.”)).
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Bilal sought a thirty-day extension of time to file a notice of lawsuit and
request for waiver of service of summons, summons, and United States Marshal
Service Form 285. Upon considering Bilal’s motion, the district court noted that the
original Defendants (who had previously received service of process) had not yet
filed a response to the Third Amended Complaint. So it directed those Defendants
(GEO, Wilkins, Garza, and Jarvis) to file a response to the Third Amended
Complaint. The court also found good cause to grant Bilal’s motion for extension
of time, and it gave him an additional thirty days from June 18, 2015, to comply with
the previous order. It warned that “[f]ailure to do so may result in the dismissal of
the unserved defendants without further notice.”
In accordance with the district court’s order, the original Defendants filed a
Motion to Dismiss the Third Amended Complaint on August 7, 2015. Among other
things, Defendants argued that, for the most part, the complaint failed to state a
claim. Nevertheless, Defendants conceded that Garza and Jarvis’s alleged failure to
allow a bathroom break “may be enough to state a claim” but asserted that it was not
clear what type of claim Bilal intended to pursue. At the conclusion of their Motion
to Dismiss, Defendants sought dismissal of all claims “except for claims against
Defendant GARZA and JARVIS in the first Count VI relating to [their] alleged[]
refus[al] to allow [Bilal] a bathroom break during his trip to his hearing.”
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Bilal opposed Defendants’ motion, but after Bilal’s extended period to serve
the remaining Defendants expired, the district court granted the motion. Noting that
more than 120 days had passed since Bilal had filed the Third Amended Complaint,
the district court also concluded that seven of the ten ostensibly as-yet unserved
Defendants, which it said included GEO, should be dismissed under Federal Rule of
Civil Procedure 4(m), and closed the case. As for the three other supposedly
unserved Defendants (Craig Beloff, Manuel Fernandez, and Secretary Carroll), the
district court acknowledged that Bilal had submitted service forms for them. But
because the district court determined that the complaint failed to state any
constitutional claims, it did not direct service on these individuals. Based on its
dismissal order, the district court entered judgment in favor of Defendants and
against Bilal.
Soon after, Bilal filed an affidavit regarding service. In the affidavit, Bilal
explained that he put approximately sixteen U.S. Marshal forms in the mailbox,
addressed to FCCC’s general counsel Brian Masonry, within the 120-day deadline
for service. He claimed he was indigent and could not afford the cost of serving the
sixteen defendants in this case. On the same date, Bilal filed a motion to vacate the
judgment and a motion to vacate the opinion granting the motion to dismiss. He
later filed an amended motion to vacate and then a motion to reopen the case.
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Noting Bilal’s pro se status, the district court liberally construed the filings as
motions for reconsideration under Rule 60, Fed. R. Civ. P. Ultimately though, the
district court found no reason to grant relief. And as to service, the district court
noted that Bilal had failed to comply with the court’s orders.
Bilal appealed. We appointed counsel to represent him in these appellate
proceedings.6
II.
Bilal challenges the district court’s dismissal of his Fourteenth Amendment
claims relating to his transport and to his detention. He also objects to the district
court’s sua sponte dismissal of the case for lack of service of process. We address
Bilal’s Fourteenth Amendment claims in Section A and his service-related claim in
Section B.
A.
We review de novo the district court’s dismissal of a case for failure to state
a claim. Speaker v. U.S. Dep’t of Health & Hum. Servs. Ctrs. for Disease Control
& Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010); Hill v. White, 321 F.3d 1334,
1335 (11th Cir. 2003) (per curiam). As we have mentioned, on a Rule 12(b)(6)
motion, we “accept the factual allegations in the complaint as true and construe them
6
We thank Attorney Valarie Linnen for accepting the appointment and capably discharging
her duties.
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in the light most favorable to the plaintiff.” Echols v. Lawton, 913 F.3d 1313, 1319
(11th Cir.), cert. denied, 139 S. Ct. 2678 (2019). In determining whether a complaint
survives a Rule 12(b)(6) challenge, we ask whether the complaint contains “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009).
In conducting our review, we liberally construe pro se pleadings and hold
them to “less stringent standards” than we apply to formal pleadings that lawyers
draft. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976)); see also Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir.
2011) (per curiam). Nevertheless, we cannot act as de facto counsel or rewrite an
otherwise deficient pleading to sustain an action. GJR Invs., Inc. v. Cnty. of
Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other grounds by
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
1.
The Due Process Clause of the Fourteenth Amendment promises that no State
shall “deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend. XIV, § 1. This Clause applies to civilly committed detainees
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like Bilal, who bring § 1983 actions. Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th
Cir. 1996) (citing Youngberg v. Romeo, 457 U.S. 307 (1982)). Under the Fourteenth
Amendment, those who are civilly committed enjoy a substantive-due-process right
to liberty interests in, among other things, safety and freedom from bodily restraint.
Id.
Nevertheless, a civilly committed individual’s right to freedom from bodily
restraint is not absolute. See Romeo, 457 U.S. at 319–20. We apply a balancing test
to determine whether a State’s restraints on a civilly committed person violate that
individual’s substantive-due-process rights. In particular, we balance the person’s
liberty interests against the reasons the State sets forth for restricting the individual’s
liberty. Id. at 320–21. When we do so, we keep in mind that those who have been
involuntarily civilly committed are due a higher standard of care than those who
have been criminally committed, since the conditions of confinement for the
criminally committed are “designed to punish,” but those of the civilly committed
are not. Dolihite, 74 F.3d at 1041 (quoting Romeo, 457 U.S. at 322) (quotation marks
omitted).
Once the State articulates a legitimate reason for restraining the civil
committee’s liberty, “the Constitution only requires that the courts make certain that
professional judgment in fact was exercised” in the times and way the institution
restrains the person’s liberty. Romeo, 457 U.S. at 321 (internal quotation marks
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omitted). In this respect, decisions made by professionals employed by civil-
commitment centers are presumptively valid; liability attaches only when the
decision represents “such a substantial departure from accepted professional
judgment, practice, or standards” that it shows that the employee did not, in fact,
make the decision based on sound professional judgment. Id. at 323.
Here, Florida’s interest in restraining Bilal is a security one: “protecting the
public” from those determined to be sexually violent predators. Pesci, 730 F.3d at
1299 (quoting Westerheide v. State, 831 So. 2d 93, 112 (Fla. 2002)) (internal
quotation marks omitted). That is certainly a legitimate interest. See id. So below,
we consider each of the practices Bilal experienced in the name of this interest during
his roundtrip to Escambia County and his stay in the Santa Rosa County Jail and
evaluate whether any of them is inconsistent with professional judgment.
2.
a. The Transport Claims
First, we address Bilal’s claims concerning his van transport to and from
Escambia County. We begin with his complaints about the use of leg irons, waist
chains, and black-box restraints during the van transport, the cramped van quarters,
the stale sandwich, and the excessive driving speeds during the van transport. None
of these things, alone or in combination, states a Fourteenth Amendment violation
in this case. But we conclude that Bilal’s challenge that Defendants permitted no
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bathroom stops during the journey and forced him to sit in his own excrement for
roughly 300 miles does state a claim under the Fourteenth Amendment. We explain
each resolution below.
i. Bilal’s allegations about the shackles, transport by van instead of
airplane, the stale sandwich, and the driving speeds fail to state a
Fourteenth Amendment claim
As we have noted, Florida restrained Bilal during transport to protect the
public.7 The State’s psychologist, Dr. Gregory Prichard, Ph.D., has described Bilal
as a “borderline psychopath” and “one of the most dangerous individuals” in the
FCCC. Against this assessment of Bilal’s threat to the public, we cannot say that
Defendants’ decision to use leg irons, waist chains, and black-box restraints during
the journey to ensure that Bilal did not escape was inconsistent with professional
judgment. See Beaulieu v. Ludeman, 690 F.3d 1017, 1032–33 (8th Cir. 2012)
(finding policy of placing civilly committed sexually violent individuals in full
restraints during transportation to and from facility was justified by safety concerns
and did not violate patients’ substantive-due-process rights).
Bilal’s complaints about the cramped seating in the van and the alleged effect
on his knees of the seating and the restraints do not affect the decision. Bilal asserts
that he would have preferred to fly rather than drive to Escambia County. But Bilal
7
Bilal does not contend he was restrained while housed in the FCCC, where he would not
have access to the public. So that is not at issue.
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does not allege that a different way of restraining him during the travel would have
been substantially better for his knees or that Defendants’ use of the chosen restraints
somehow fell outside the realm of professional choices. He also has not explained
why driving represents a significant departure from professional judgment in
selecting a method to deliver him securely to and from Escambia County. And that
is especially so since Bilal’s proposed alternative—flying—can itself require
cramped seating.
To the extent that Bilal complains that the State commits a Fourteenth
Amendment violation merely by requiring road travel instead of authorizing air
travel, he also fails to state a claim. While we have recognized a Fourteenth
Amendment claim arising from the placement and confinement of a detainee in an
unventilated and un-air-conditioned transport van for an extended period, see Patel
v. Lanier Cnty., 969 F.3d 1173 (11th Cir. 2020), Bilal did not allege that to be the
case here. Millions of people in this country make lengthy road trips every day for
business, vacation, and personal reasons. And they do so by car, van, bus, and truck.
There is nothing inherently punishing about a State’s decision to transport its
prisoners by van rather than plane.
Though we are troubled by Bilal’s claim that Garza and Jarvis drove at speeds
up to 90 miles per hour, taking Bilal’s complaint as a whole, we cannot say that this
allegation states a Fourteenth Amendment violation. Other than any inherent threat
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to safety that traveling at speeds up to 90 miles per hour may represent, Bilal did not
assert that Defendants’ driving was itself reckless. And Bilal was delivered safely
to Escambia County and back again to the FCCC.
As for the stale sandwich and single bottle of water provided during the trip,
we likewise do not conclude that those choices were so extreme and unreasonable
as to amount to a violation of Bilal’s constitutional rights. The Fourteenth
Amendment requires only that the State provide Bilal with “reasonably adequate
food.” Hamm v. DeKalb Cnty., 774 F.2d 1567, 1575 (11th Cir. 1985) (food that
should be served hot and is sometimes served cold, “while unpleasant, does not
amount to a constitutional deprivation”). And although Bilal asserts in his complaint
that he should have been fed a hot meal during transport, many people have cold
lunches every day. Bilal also did not suggest that he was denied breakfast or dinner
at his departure and destination locations, in addition to the cheese sandwich en
route. Nor did he allege he was dangerously and inappropriately deprived of
sufficient nutrition over the course of his travel days.
Even assuming the sandwich caused him food poisoning, 8 Bilal does not
contend that Defendants knew or should have known that the sandwich would make
8
We construe Bilal’s allegation that the cheese sandwich caused him botulism to mean that
the cheese sandwich resulted in some type of food poisoning. Botulism, which attacks nerves,
causes difficulty breathing, muscle paralysis, and death in the absence of immediate, proper
medical treatment. https://www.cdc.gov/botulism/general.html (last visited Nov. 9, 2020). It is
treated with an antitoxin that does not correct the damage the Botulinum toxin inflicts but rather
prevents the toxin from further harming the victim’s nerves. https://www.cdc.gov/botulism/
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him sick. Cf. Roberts v. Williams, 456 F.2d 819, 827 (5th Cir. 1972)9 (“We might
say careless preparation of a single meal, producing food poisoning in prisoners, was
not cruel, but it might be so if the jailors negligently allowed the jail’s only drinking
water supply to become permanently infected with typhoid bacteria.”). Under these
circumstances, feeding Bilal only a cheese sandwich and a bottle of water during the
road trip did not violate his Fourteenth Amendment rights.
ii. Bilal’s allegations that Defendants would not allow him to use the
bathroom and required him to sit in his own excrement for 300 miles
state a Fourteenth Amendment claim
But Bilal’s allegations that Garza and Jarvis refused to allow him to use the
bathroom during a 600-mile road trip, which caused Bilal to have to defecate in his
clothing and sit in his excrement for about 300 miles, do state a claim under the
Fourteenth Amendment.
Our decision in Brooks v. Warden, 800 F.3d 1295 (11th Cir. 2015), requires
this result. Brooks, a prison inmate, alleged that he was forced to defecate in his
testing-treatment.html (last visited Nov. 9, 2020). As a result, even when death can be prevented,
botulism victims can require months of hospitalization while they recover from the nerve damage.
See id. Although we do not make credibility determinations in reviewing a motion to dismiss, we
note the absence in Bilal’s complaint of any allegations at all concerning the devastating effects
that would result from botulism. Considering Bilal’s pro se status, we therefore liberally construe
his complaint to allege that the cheese sandwich caused him, more generally, some kind of food
poisoning. In any case, whether Bilal suffered botulism or some other type of food poisoning does
not bear on the analysis.
9
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), we
accepted as binding precedent all published Fifth Circuit opinions issued before October 1, 1981.
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prison jumpsuit and sit in his own feces for two days during his three-day hospital
stay because the guard did not want to temporarily lower Brooks’s waist chains to
allow him to use the toilet. Id. at 1299, 1303. Brooks also asserted the guard would
not allow the nurses to clean him or offer him an adult diaper. Id. at 1303. We
determined that these “serious allegations” stated an Eighth Amendment conditions-
of-confinement claim. Id. We recognized that the Constitution protects prisoners
from being exposed to objectively “unreasonable risk[s] of serious damage to [their]
future health” and that the conditions of confinement must meet “the evolving
standards of decency that mark the progress of a maturing society.” Id. (citations
and internal quotation marks omitted).
As we explained, “conditions that deprive inmates of the minimal civilized
measure of life’s necessities are violative of the contemporary standard of decency
that the Eighth Amendment demands”—in particular, the right “not to be
confined . . . in conditions lacking basic sanitation.” Id. at 1303–04 (citation and
internal quotation marks omitted). We also recognized that a common thread ran
through prison-condition cases—the deprivation of “basic elements of hygiene.” Id.
at 1304 (quotation omitted). Upon surveying our sister Circuits’ rulings in this area,
we noted that each had recognized that the “deprivation of basic sanitary conditions”
can state a constitutional violation. Id. (collecting cases, including those dealing
with exposure to human waste).
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We concluded that Brooks’s allegations were, in some ways, worse than those
in the cases we had reviewed, since he was forced to lie in “direct and extended
contact with his own feces” without the ability to clean himself. Id. at 1305.
(comparing Hope v. Pelzer, 536 U.S. 730, 735 (2002)). Although the Brooks
defendant claimed that Brooks had not alleged any harm except mere discomfort,
we concluded that “he sufficiently alleged a substantial risk of serious harm” because
“the health risks of prolonged exposure to human excrement are obvious.” Id.
Finally, we determined that Brooks sufficiently averred that the guard was
deliberately indifferent to Brooks’s needs because Brooks had repeatedly asked to
remove his jumpsuit and use the toilet. Id.
Brooks stands for the proposition that an unreasonable refusal to allow a
prisoner to use the restroom, which results in his being forced to sit in his own feces
for an extended period, constitutes an Eighth Amendment violation. True, Bilal is
not a criminal prisoner; he is a civilly committed individual. But Fourteenth
Amendment substantive-due-process rights are at least equivalent to the comparable
Eighth Amendment rights of those incarcerated. Dolihite, 74 F.3d at 1041. So
“relevant case law in the Eighth Amendment context also serves to set forth the
contours of the due process rights of the civilly committed.” Id. And we have
specifically recognized that actions that would violate a prisoner’s Eighth
Amendment conditions-of-confinement rights would also violate the due-process
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rights of the involuntarily civilly committed, since conditions that transgress the
Eighth Amendment standard undoubtedly violate the higher standard owed to civil
committees under the Fourteenth Amendment. See id.
Here, Bilal adequately alleged that Jarvis and Garza did not allow him
bathroom breaks and “refused” to stop at any restroom. Because of the guards’
“refus[al],” Bilal was forced to relieve himself in his clothing. And since Bilal
contended that this happened midway through the 600-mile one-way trip, during
which he was waist-chained with black-boxed handcuffs, we must infer that Bilal
was forced to sit in his own feces for a roughly 300-mile drive.
To be sure, the length of time is not as prolonged and drastic as the two days
in Brooks, but it states a claim, nonetheless. Indeed, in Brooks we commented on
the extreme nature of the allegations as compared to other situations courts
encountered. See Brooks, 800 F.3d at 1305 (noting that in Hope, 536 U.S. at 735,
seven hours was sufficient to state a claim). And here, as we’ve noted, Bilal is a
civilly committed person, not a criminal prisoner. Civilly committed individuals are
“entitled to more considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish.” Romeo, 457 U.S. at 322.
It seems doubtful that a legitimate reason exists to refuse a civilly committed
prisoner an opportunity to relieve himself during a 600-mile road trip. But if one
does, Defendants will have an opportunity to present it as the case proceeds. In any
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case, barring exigent circumstances, restroom breaks should come more frequently
than every 600 miles on a road trip.
In short, we conclude that refusing a single bathroom stop during a 600-mile
road trip and requiring a civilly committed person to sit in fecal matter for several
hours fits squarely within the definition of “deprivation of basic sanitary conditions.”
For that reason, those actions are not consistent with a civilly committed person’s
interest in reasonably safe conditions, and they violate the Fourteenth Amendment.
So Bilal’s claim in this regard should not have been dismissed, and we reverse that
dismissal.
b. The Jail-Housing Claim
Bilal argues that the district court also erred in dismissing his claim
concerning his month-long stay in the Santa Rosa County Jail in connection with his
one-day hearing. We agree.
As we have noted, those who are civilly committed may not be punished at
all merely because of their status as civil committees. See Romeo, 457 U.S. at 316.
Bilal asserts that his housing at the jail amounted to punishment.
As with the restraints Defendants employed when they transported Bilal, the
State’s interests in determining housing for Bilal include security and the safety of
the public. We have recognized these as valid interests. See Lynch v. Baxley, 744
F.2d 1452, 1458 (11th Cir. 1984). Moreover, the State’s interest in security and the
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safety of the public is particularly strong in this case because among an already
dangerous group—those determined to be sexually violent predators “likely to
engage in acts of violence if not confined in a secure facility”—Bilal has been
diagnosed as “one of the most dangerous.” Fla. Stat. § 394.912(10).
The district court concluded that Bilal lacked a liberty interest in not being
housed temporarily in a jail. To reach this conclusion, it relied on Meachum v. Fano,
427 U.S. 215 (1976). That was error because Meachum involved a criminal prisoner,
not a civil committee. See id. at 216. And as we have explained, duly convicted
criminal prisoners do not share the same liberty interests as those who have been
civilly committed. In Meachum, the Supreme Court concluded that a criminal
conviction “sufficiently extinguishe[s] [a prisoner’s] liberty interest [so as] to
empower the State to confine him in any of its prisons.” Id. at 224.
But in Lynch, we acknowledged that those awaiting involuntary civil-
commitment proceedings have a liberty interest in not being housed unnecessarily
in jails. Lynch, 744 F.2d at 1458. So while the State has a compelling and legitimate
interest in public safety, it cannot satisfy that interest “by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved.” Id. at
1459 (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960)) (internal quotation
marks omitted). In particular, we explained, even if the mentally ill represent a
danger to themselves or others, they may not be housed in jails if less restrictive,
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secure options, such as a mental hospital or other health facility, are available. Id.
at 1461, 1463.
In reaching this conclusion, we noted that temporary confinement in a jail is
“particularly harmful to those who are mentally ill.” Id. at 1458. And we
emphasized that jail is typically not the “least restrictive means” for protecting
society from the mentally ill who are dangerous. Id.
Lynch dealt with the mentally ill who were being held before they were civilly
committed. But it applies with equal force to those who have already been civilly
committed. We explained in Lynch that “emergency detainees cannot be subjected
to conditions of confinement substantially worse than they would face upon
commitment.” Id. at 1461. In other words, we acknowledged the baseline for
conditions of confining the mentally ill—either pre- or post-commitment—as those
conditions that are not “substantially worse than they would face upon
commitment.” Id. And we have already noted that conditions of confinement for
the mentally ill may not inflict punishment simply because a person has been civilly
committed. See Romeo, 457 U.S. at 316. In contrast, jails may be designed to
appropriately punish the convicted individuals they hold. So the mentally ill may
not be housed there, even for security reasons, unless no less restrictive, secure
option is available.
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We reject Defendants’ suggestion that those who have been civilly committed
under Florida’s Jimmy Ryce Act somehow do not enjoy the same protections from
punishment as those who have otherwise been civilly committed. As we explained
in Pesci, although the civilly committed under the Jimmy Ryce Act have previously
been convicted of crimes, they have served their time; they are not prisoners, and the
FCCC is not a prison. 730 F.3d at 1292, 1297. So the State may not justify a restraint
on a civil committee’s constitutional rights “for reasons related to punitive
conditions of confinement.” Id. at 1298.
Here, Bilal alleged that when he was housed in the Santa Rosa County Jail, he
was subjected to punishing conditions. He asserted that, among other things, he
“was placed into the jail’s confinement unit” and “did not have access to[] TV, phone
calls, law library, visitation, fresh air exercise, canteen privileges, or access to
religious and/or group.” He also contended that he did not receive any mental-health
treatment, and the jail guards were abusive and engaged in “show of force tactics
that caused . . . Bilal to become suicidal and spend more than two weeks in a suicide
cell at the jail.”
Under Lynch, the State bore the burden of achieving public security in housing
Bilal by the least restrictive means—meaning it could not house Bilal at the jail
unless no mental-health facility was both secure and within a reasonable distance of
the Escambia County courthouse. Because Bilal was housed in a jail instead, he has
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sufficiently stated a Fourteenth Amendment claim for purposes of surviving a
motion to dismiss. During further proceedings, if the State can demonstrate that
housing Bilal for a month at the Santa Rosa County Jail represented the “least
restrictive means” for ensuring the safety and security of the public, see Lynch, 744
F.2d at 1459, it would be entitled to a judgment in its favor on Bilal’s Fourteenth
Amendment claim.10 But under Lynch, the onus remains on the State to so
demonstrate.
In sum, we conclude that Bilal has sufficiently alleged a Fourteenth
Amendment claim concerning his confinement in the Santa Rosa County Jail for one
month to attend a one-day hearing. For that reason, we reverse the dismissal of
Count II of the Third Amended Complaint and remand for further proceedings
consistent with this opinion.
B.
Finally, Bilal argues that the district court erred in dismissing ten parties sua
sponte because they had not been served with process. We review for abuse of
discretion the district court’s dismissal for lack of service under Rule 4(m), Fed. R.
10
Defendants assert that they are not proper defendants for Bilal’s jail-housing claim. They
raise this argument for the first time on appeal. Their argument also relies entirely on documents
that Defendants did not file in the district court or otherwise bring to the court’s attention, even
though the documents were available to Defendants before the district court ruled on Defendants’
motion to dismiss. We have “repeatedly held that an issue not raised in the district court and raised
for the first time in an appeal will not be considered by this court.” Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (citation and quotation marks omitted). We follow that
policy here.
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Civ. P., without prejudice. Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d
1277, 1280 (11th Cir. 2007).
We begin with the district court’s dismissal of GEO and the DCF Secretary
for lack of process. In fact, the record reflects that GEO was served with process, as
it acknowledged in its Notice of Removal to federal court. And attached to that
Notice were return-of-service forms for both GEO and then-DCF Secretary Wilkins.
One of the district court’s orders also acknowledged that the original Defendants
(GEO, Wilkins, Garza, and Jarvis) had “previously received service of process” and
directed them to file a response to the Third Amended Complaint. Defendants
complied, filing their Motion to Dismiss.
It appears the district court may have confused GEO with one of the new
defendants, “The GEO Group, Inc.,” which was not served. This apparent confusion
led to the dismissal of the wrong party—GEO. And in dismissing DCF Secretary
Carroll, the district court may have overlooked the fact that his predecessor, Wilkins,
was served and responded to the Third Amended Complaint as the then-DCF
Secretary. Under Rule 25(d), Fed. R. Civ. P., when a public officer who is a party
in an official capacity ceases holding office while the action is pending,
“automatically,” the succeeding officer is substituted as a party. See id. This is so,
regardless of whether the court actually orders the substitution. Id.
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Defendants do not dispute these facts. Rather, they argue that the district court
correctly dismissed the action against GEO and the DCF Secretary only because, in
their view, the entire action failed to state any constitutional claims. But as we have
already explained, that argument is without merit. So we conclude that the district
court erred in sua sponte dismissing GEO and Carroll from the action, to the extent
that they are implicated in the bathroom-related claim (the first Count VI) or the jail-
housing claim (Count II). Bilal alleged the first Count VI against Garza, Jarvis, and
“all other FCCC transport officials.” Because we must construe Bilal’s pro se
pleadings liberally, Erickson, 551 U.S. at 94, we understand this to include, besides
Garza and Jarvis, any FCCC official or contractor (GEO) responsible directly or
indirectly for transport, including the DCF Secretary, who is charged with the
administration of the FCCC. See Fla. Stat. §§ 394.9151, 394.917(2), 394.930. As
for Count II, that refers to “Defendants named above” and more specifically to the
DCF Secretary.
Next, we consider the district court’s dismissal for lack of service of Beloff,
who was the director of security at the FCCC during the events Bilal alleged, and
Fernandez, who was the senior vice president of GEO. 11 The record reflects that
11
Bilal also submitted a service form for Carroll. As we have explained, though, no
additional service was necessary, since he was automatically substituted for Wilkins when Carroll
became the Secretary of DCF. Since that time, Chad Poppell has taken over as Florida’s Secretary
of DCF. So under Rule 25(d), he is now automatically substituted for Carroll.
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Bilal submitted the required service forms to the Marshals Service so that these
Defendants would be served.
Nevertheless, the district court dismissed these defendants and declined to
direct service on them because it concluded that the Third Amended Complaint did
not state a claim for a constitutional violation. Since we do not agree with that
determination and Beloff and Fernandez could be officials involved in FCCC
transport, for purposes of the first Count VI, and are “Defendants named above,” as
designated in Count II, service should have been completed on them. Bilal was
entitled to rely upon the Clerk of the Court and Marshals Service to serve these
defendants for which he provided proper service forms. See Fowler v. Jones, 899
F.2d 1088, 1095 (11th Cir. 1990).
Finally, we turn to the remaining Defendants the district court dismissed for
lack of service. At the time the district court dismissed Defendants it believed were
unserved, Rule 4(m) required the district court to dismiss an action without prejudice
against a defendant who had not been served within 120 days after the plaintiff filed
the complaint, unless the plaintiff “show[ed] good cause for the failure.” 12 Fed. R.
Civ. P. 4(m) (2007). “Good cause” requires the existence of “some outside factor,
12
Effective December 1, 2015, the service period changed from 120 days to 90 days. See
Fed. R. Civ. P. 4(m) (2015).
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such as reliance on faulty advice, rather than inadvertence or negligence.” Lepone-
Dempsey, 476 F.3d at 1281 (citation, quotation marks, and alteration omitted).
Yet we have noted that even when a plaintiff cannot demonstrate good cause,
the district court “must still consider whether any other circumstances warrant an
extension of time based on the facts of the case.” Id. at 1282. For example, we have
explained that where the statute of limitations would preclude refiling, or where the
defendant evades service or hides a problem with attempted service, the Advisory
Committee Note to Rule 4(m) suggests that an extension might be appropriate. Id.
at 1282 (citing Fed. R. Civ. P. 4(m) advisory committee’s note to 1993 amendments).
So a district court may exercise its discretion to dismiss the case without prejudice
or to direct service to be accomplished within a set time only after it evaluates any
factors that may bear on this determination. Id. And a district court’s dismissal of
a case under Rule 4(m) after finding that the plaintiff did not demonstrate good cause
but before considering whether the facts of the case justify a permissive extension
of the service period is “premature.” Id.
Here, the district court noted that more than 120 days had passed since Bilal
filed his Third Amended Complaint, and it gave Bilal two extensions to serve the
unserved Defendants. Bilal still did not do so, and the district court dismissed the
unserved Defendants. Nevertheless, the district court did not consider whether Bilal
demonstrated good cause for a further extension, since it essentially concluded that
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its determination that the complaint failed to state a claim mooted the issue. And
even if we could read the district court’s order as implicitly finding no good cause
to further extend the service period, the district court’s order does not indicate that
the district court evaluated whether any other circumstances of the case justified a
further extension. So we must vacate the dismissal of the Third Amended Complaint
against these remaining Defendants and remand to allow the district court to consider
whether good cause or other circumstances warrant a further extension of the service
period.
III.
For the reasons we have explained, we reverse the district court’s dismissal of
Bilal’s Fourteenth Amendment Due Process claims arising from his bathroom-
related allegations and his jail-housing claim, as well as the order dismissing
Defendants for lack of service. We affirm the district court’s dismissal order in all
other respects and remand for further proceedings consistent with this decision.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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