IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ROBERT E. BANKS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-0330
JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF
CORRECTIONS,
Respondent.
__________________________/
Opinion filed July 12, 2016.
Amended Petition for Writ of Certiorari - - Original Jurisdiction.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
Petitioner.
Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee;
Pamela Jo Bondi, Attorney General, Susan A. Maher, Chief Assistant Attorney
General, Lance Eric Neff, Senior Assistant Attorney General, Sean W. Gellis and
Daniel A. Johnson, Assistant Attorneys General, Tallahassee, for Respondent.
EN BANC
B.L. THOMAS, J.
Petitioner is a state prisoner assigned to Close Management residential status
for spitting in the face of a psychiatrist attempting to interview him. The
Department form reporting the incident stated that Petitioner repeatedly cursed the
doctor and staff, and when ordered to leave the doctor’s office, Petitioner then
stood up and spat in the doctor’s face, requiring Department security staff to escort
Petitioner out of the office and place him in confinement pending resolution of the
incident. Based on the incident, a disciplinary report was filed against Petitioner,
and a referral for Close Management assignment was issued. Close Management
is a prison classification imposing more restrictive conditions promulgated to
ensure institutional order and safety in Department of Corrections’ facilities.
Petitioner challenged his assignment to Close Management by filing a petition for
writ of habeas corpus.
Claims filed by state prisoners challenging Close Management classification
do not assert that the inmate is entitled to release from incarceration but only assert
a right to remain in the prison’s general population; therefore, such claims do not
implicate a constitutionally-protected liberty interest. Because our prior decisions
holding to the contrary relied on an analytical foundation built on Hewitt v. Helms,
459 U.S. 460 (1983), rejected more than 20 years ago by the United States
Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995), and because habeas
corpus review of such claims does not accord the proper deference due the
Executive Branch, which must carry out the daunting and dangerous task of
ensuring the safety of state prisons, we recede from prior decisions of this court
which hold that challenges to Close Management housing assignments may be
asserted by petition for writ of habeas corpus. See Magwood v. Tucker, 98 So. 3d
2
725 (Fla. 1st DCA 2012) (holding that prisoner’s challenge to Close Management
classification, based on disciplinary report which was challenged by petition for
writ of mandamus in the Circuit Court for Leon County, must be considered by
petition for writ of habeas corpus in the Circuit Court for Santa Rosa County in
which prisoner was incarcerated); Kendrick v. McNeil, 6 So. 3d 657 (Fla. 1st DCA
2009) (citing precedent dating back to 1987 holding that circuit court improperly
treated claims challenging Close Management classification as arising in
mandamus rather than habeas corpus, and ordering that liens placed on inmate’s
account be refunded, as no fee could be charged for filing petition for writ of
habeas corpus, but otherwise denying certiorari relief); Thompson v. Dugger, 509
So. 2d 391, 392 (Fla. 1st DCA 1987) (“Although an inmate has no constitutional
due process right to notice and a hearing before his confinement status is changed,
such right may be created by state law.”).
We now hold that a prisoner’s claim that he has been improperly assigned to
Close Management classification does not state a claim for relief by writ of habeas
corpus under Article I, section 13 of the Florida Constitution or under the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.
Thus, we hold that such a claim can only be considered by petition for writ of
mandamus, asserting that the Department has not complied with its own Close
Management procedures and filed in the Second Circuit Court in Leon County, as
3
are other claims challenging disciplinary reports issued in state prisons. See
generally Holcomb v. Dep’t of Corrections, 609 So. 2d 751 (Fla. 1st DCA 1992)
(holding that circuit court must first evaluate a prisoner’s petition to determine
sufficiency of allegations, and if insufficient, court may deny relief or dismiss
insufficient claims; where petition alleges sufficient claims, court must issue order
to show cause why requested relief should not be granted, and once issued, order to
show cause “becomes in all respects the complaint,” and response must admit or
deny factual allegations); see, e.g., State ex. rel. Haley v. Groose, 873 S.W.2d 221,
223 (Mo. 1994) (treating petition for writ of habeas corpus challenging placement
in protective custody for refusing to submit to DNA testing as petition for writ of
mandamus, ordering prison to conduct review hearing, and noting that because
prisoner’s claim failed to allege cruel and unusual punishment, “habeas corpus is
not available to attack the conditions of his confinement”). Further review of
circuit court orders in cases involving challenges to Close Management assignment
shall be by second-tier certiorari review in this court. Sheley v. Fla. Parole
Comm’n, 720 So. 2d 216 (Fla. 1998); Plymel v. Moore, 770 So. 2d 242 (Fla. 1st
DCA 2000). In addition to our holding today, we also certify conflict with the
Fifth District Court of Appeal in Holland v. State, 791 So. 2d 1256 (Fla. 5th DCA
2001), which cites prior decisions of this court from which we now recede.
4
Background
Petitioner is serving a 30-year prison sentence for his conviction of robbery.
While serving his prison sentence, he received a disciplinary report for the actions
noted above. The Department of Corrections (the Department) found Petitioner
guilty of Department rules, placed him in disciplinary confinement, and revoked
364 days of gain time. In addition, the Department issued a referral which
reassigned Petitioner to Close Management I housing classification and removed
him from the general population, based on committing an act “causing injury or an
act which could have resulted in injury to another.” After Petitioner challenged the
referral, asserting that the reassignment did not comply with Department rules, the
Department conducted a multi-step review, first considering Petitioner’s arguments
at the institutional level and culminating in final review by the State Classification
Officer in Department headquarters. Affirming the institutional staff’s referral, the
State Classification Officer upheld the decision which assigned Petitioner to Close
Management I housing, based on Petitioner’s act “which could have resulted in
injury to another.”
In his petition for writ of habeas corpus filed in the Eighth Judicial Circuit,
Petitioner essentially argued that he could not be assigned to Close Management I
housing, citing Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003), which held
that spitting in a law enforcement officer’s face was not a forcible felony involving
5
violence as defined under the Prison Releasee Reoffender Act. Petitioner never
denied the underlying act of spitting in the victim’s face. Petitioner cited
authorities from the United States Supreme Court and this court, asserting that
because he had a liberty interest in remaining in the general prison population, due
process required the circuit court to overturn the Department’s administrative
action assigning him to Close Management I housing by issuing a writ of habeas
corpus, ordering that Petitioner be “released” back into the general population of
the prison.
The circuit court denied relief without requiring a responsive pleading from
the Department, stating in its order:
. . . Petitioner has failed to demonstrate that he is entitled to due
process protection in regard to the Department’s decision to place him
. . . in [Close Management]. Nothing in the record demonstrates that
Petitioner has a protected liberty interest in remaining free from a
[Close Management] custody classification. [The Department’s]
decision to place Petitioner in a particular confinement classification
is a discretionary one that is necessary to maintain the order of the
institution and the safety of the inmates and staff. The conditions of
confinement in [Close Management] fall within the expected
parameters of Petitioner’s court-imposed prison sentence, and do not
impose an “atypical or significant hardship” on Petitioner “in relation
to the ordinary incidents of prison life.” See Sandin v. Conner, 515
U.S. 472, 483-86 (1995).
Moreover, [Close Management] supervision is not the same as
disciplinary confinement and is not imposed as a penalty for a
disciplinary infraction. Close management is a tool utilized by
corrections personnel to maintain security and order in the institution
and to facilitate effective management of the institution. See F.A.C.
33-601.800(3)(a). Petitioner has failed to demonstrate that [the
6
Department] abused its discretion in finding that his current [Close
Management] classification status appropriately addressed potential
security concerns stemming from his behavior.
This Court finds that Petitioner has failed to assert a prima facie
case for a writ of habeas corpus.
To challenge the circuit court’s ruling, Petitioner sought a writ of certiorari in this
court. Pursuant to this court’s order, the clerk of the circuit court was directed to
transmit the record of the proceedings, and because the order below denied a
petition for writ of habeas corpus, we directed that “petitioner is entitled to
preparation of the record on appeal without charge.” This court further ordered the
Secretary of the Department to show cause why the petition for writ of certiorari
should not be granted.
This court subsequently ordered this case to be heard en banc regarding
“whether the court should recede from decisions holding that an inmate seeking
release from close management into the general prison population is entitled to
proceed through a petition for writ of habeas corpus. See, e.g. Kendrick v. McNeil,
6 So. 3d 657 (Fla. 1st DCA 2009).” Counsel was appointed by the court to
represent Petitioner..1 This court struck all previous pleadings filed by the parties
1
Michael Ufferman, appointed by this court, was assisted in the research provided
in his brief by Lance Stephens, a second-year law student at The Florida State
University College of Law. This court acknowledges the excellent representation
provided by Mr. Ufferman on behalf of the Petitioner.
7
to allow Petitioner and the Department to address the question presented on
en banc review.
Analysis
1. Close Management Classification and Procedures
Close Management is a prison classification that confines a state prisoner
“apart from the general population, for reasons of security or the order and
effective management of the institution, where the inmate, through his or her
behavior, has demonstrated an inability to live in the general population without
abusing the rights and privileges of others.” Fla. Admin. Code. R. 33-
601.800(1)(d). The most restrictive level of Close Management is CM I, which
places an inmate in single-cell housing; the least restrictive level is CM III.
Varying restrictions of an inmate’s privileges and custodial status apply in the
classification.
When assigned to Close Management housing, the inmate is visited
regularly by Department staff, and irregularly by other staff, to ensure the inmate’s
safety and health. Fla. Admin. Code. R. 33-601.800(15). Daily visits are
conducted by medical personnel, the institution’s housing supervisor, and the
officer supervising the correctional staff; weekly visits are conducted by the
warden and assistant wardens, the security chief, and a classification officer. A
Chaplain also visits weekly, and can visit more often if requested and if the
8
Chaplain’s schedule permits.
Close Management inmates may possess certain personal items, including
hygiene items, electronic devices for listening to music, religious literature,
personal property that does not pose security risks, writing paper, stamps,
envelopes, and security pens to facilitate correspondence. Close Management
inmates may conduct their legal affairs, have access to approved reading material
and borrow library books, subscribe to magazines and newspapers, and use in-cell
education and wellness opportunities. If the Close Management inmate does not
violate a significant institutional rule, they may conduct bank transactions and
order from the canteen. Fla. Admin. Code. R. 33-601.800(10)(g).
Close Management inmates may have visitors by appointment. In addition,
they are allotted six hours of outdoor exercise each week. Inmates assigned to
CM II and CM III may obtain work assignments. Fla. Admin. Code. R. 33-
601.800(10)(m) & (13). To provide incentive for improved behavior, privileges
may increase as the inmate progresses to more lenient Close Management status.
Fla. Admin. Code. R. 33-601.800(11).
The Department’s decision to assign an inmate to Close Management is
administrative, involving multiple internal decisions by the Department, with each
requiring oversight. First, a member of the institution’s Classification Team
recommends such placement. Fla. Admin. Code R. 33-601.800(3)(c). The
9
Classification Team then reviews this recommendation and conducts a mental
health assessment before making a recommendation to the State Classification
Officer at the Department’s central office in Tallahassee. Fla. Admin. Code R. 33-
601.800(3)(g). The State Classification Officer reviews inmate classification
decisions, and may modify or reject the Classification Team’s recommendation.
Fla. Admin. Code. R. 33-601.800(1)(q). Even if the State’s Classification Officer
approves the Close Management assignment, the Department’s internal review
continues.
During the first 60 days of Close Management, the inmate’s placement is
reviewed weekly by a member of the institution’s Classification Team; following
that, review is monthly. Fla. Admin. Code. R. 33-601.800(16)(a). After six
months, the inmate’s Classification Officer interviews and assesses the inmate, the
previous placement decision, and whether a change in status is advisable. Fla.
Admin. Code. R. 33-601.800(16)(c). In addition, the State’s Classification Officer
interviews the inmate no less often than every six months to determine whether the
status remains appropriate or must be modified, including whether the inmate
should be reassigned to the general population. Fla. Admin. Code R. 33-
601.800(16)(e).
2. Judicial Review of Close Management Inmate Assignments
Petitioner asserts that this court should quash the lower court’s order
10
denying the petition for writ of habeas corpus and order that the Department
reassign him to the general prison population. Petitioner argues that this court
should not recede from its decisions allowing prisoners to challenge decisions of
the Department assigning inmates to Close Management through a petition for writ
of habeas corpus.
As Petitioner asserts in his petition, the ultimate question at issue is whether
“placement in close management represents substantially more ‘atypical and
significant hardships’ in relation to the ordinary incidents of prison life,” thus
entitling an inmate to due process, a violation of which may be asserted by petition
for a writ of habeas corpus. To answer this question, we first consider important
foundational principles regarding challenges to decisions by prison officials to
manage and ensure the safety of prisons.
First, we recognize that courts must give great deference to prison officials
who must carry out the dangerous task of managing prisons. The United States
Supreme Court has long recognized that
[r]unning a prison is an inordinately difficult undertaking that
requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and
executive branches of government. Prison administration is,
moreover, a task that has been committed to the responsibility of those
branches, and separation of powers concerns counsel a policy of
judicial restraint.
11
Turner v. Safley, 482 U.S. 78, 84-85 (1987). Most pertinent to our decision here is
the initial question of whether prisoners in Florida have a protected liberty interest
in remaining in the general population, thus necessitating a determination of
whether a decision removing a prisoner from the general population for
reassignment to Close Management implicates due process requirements. See
Sandin v. Conner, 515 U.S. 472 (1995). If an inmate has no such liberty interest
implicating due process demands, then it is more logical for this court to reevaluate
its prior case law holding that judicial challenges to assignments to Close
Management sound in habeas corpus rather than by writ of mandamus. If a liberty
interest is not at stake, judicial review of the Department’s decision to assign an
inmate to Close Management would be more appropriately considered as an appeal
of an administrative decision, rather than a claim that a person is being illegally
detained, and thus entitled to assert a claim by writ of habeas corpus.
In Sandin, the United States Supreme Court addressed whether a state
prisoner incarcerated in the Hawaiian Department of Corrections possessed a
liberty interest to remain free from disciplinary confinement and thus possessed a
right to the federal Due Process Clause procedural requirements of Wolff v.
McDonnell, 418 U.S. 539 (1974). Sandin, 515 U.S. at 474. Hawaiian inmate
DeMont Conner was a state prisoner serving a sentence of 30 years to life for
numerous state crimes including murder, kidnapping, burglary, and robbery. Id. at
12
475. While in prison, Conner was charged with misconduct for using abusive
language when prison officials conducted an intrusive search of his person. Id.
During the disciplinary hearing, prison officials refused Conner’s request to call
witnesses, citing their unavailability. Id. Conner was found guilty and assigned to
30 days of “disciplinary segregation.” Id. at 475-76. An official later granted
Conner’s internal appeal and deleted the charge after Conner had served the
confinement period. Based on the prison official’s actions, Conner filed suit under
42 United States Code Annotated section 1983 in the District Court of Hawaii.
The district court granted the State’s motion for summary judgment, but the Ninth
Circuit Court of Appeals reversed. Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993).
Relying on the United States Supreme Court decision in Hewitt, the Ninth Circuit
held that Conner had a liberty interest in remaining in the general population and
had raised a genuine issue of material fact under Wolff by adequately alleging
Hawaiian prison officials had failed to accord him the opportunity to call
witnesses. Id. at 1466-67.
In reversing the Ninth Circuit, the United States Supreme Court overruled its
prior precedent in Hewitt and its progeny in which the Court looked to state law or
mandatory administrative regulations to consider whether the State had created a
constitutionally-protected liberty interest, triggering due process requirements.
Instead, the Supreme Court announced that “these [liberty] interests will be
13
generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484 (citations omitted; emphasis added). The Court left open
the possibility that states could create liberty interests which triggered due process
protections, such as in Board of Pardons v. Allen, 482 U.S. 369 (1987), where the
state’s mandatory language regarding parole eligibility established such a liberty
interest, and it recognized that, as in Washington v. Harper, 494 U.S. 210 (1990),
some prison regulations authorized involuntary administration of anti-psychotic
medication, or Vitek v. Jones, 445 U.S. 480 (1980), which authorized involuntary
transfer of a state prisoner to a mental hospital, in which such unusual prison
regulations, by their very nature, invoked due process protections. But the decision
in Sandin clearly announced that any prison regulation which did not impose an
atypical hardship on state prisoners would not implicate due process protections,
and that a state prisoner’s interest in avoiding more adverse prison consequences
was expected to occur following a lawful conviction and sentence, and was not to
be equated with state laws addressing “rights and remedies available to the general
public.” Sandin, 515 U.S. at 481.
14
The Supreme Court anchored its new approach to state prisoner due process
claims on issues of “real substance” rather than on prison regulations designed to
help guide correctional staff. In its overview of prior precedent, the Court noted
that in Meachum v. Fano, 427 U.S. 215 (1976), it recognized that state prisoners
who were transferred to a more secure prison with “less favorable” conditions did
not implicate substantive due process liberty interest rights: “The Court began [in
Meachum] with the proposition that the Due Process Clause does not protect every
change in the conditions of confinement having a substantial adverse impact on
the prisoner.” Sandin, 515 U.S. at 478 (emphasis added).
The Sandin Court then turned to Hewitt, noting that even in that decision,
the Court did not find a liberty interest implicated in a state prisoner’s right to
remain in the general population: “[the Hewitt Court] then concluded that the
transfer to less amenable quarters for nonpunitive reasons was ‘ordinarily
contemplated by a prison sentence.’” Sandin, 515 U.S. at 480 (quoting Hewitt,
459 U.S. at 468). But the Sandin Court held that its prior methodology for
determining the existence of a liberty interest used in Hewitt was logically flawed,
as it looked to the prison regulations themselves, rather than whether the prisoner’s
confinement in administrative segregation actually imposed a “‘grievous loss of
liberty’ retained even after sentenced to terms of imprisonment.” Id. (citing
Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In other words, unlike Morrissey,
15
which involved the revocation of parole, a real deprivation of actual liberty, the
Sandin Court criticized its earlier precedent in Hewitt, which focused on the nature
of the prison regulation rather than the question of whether there was an actual loss
of liberty.
Thus, under the logic of Sandin, it is unlikely that Petitioner’s claim that he
was wrongfully assigned to Close Management implicates a substantive due
process liberty interest, primarily because Close Management does not, on its face,
constitute a “grievous loss of liberty,” as a prisoner sentenced to 30 years’
imprisonment has already lost his or her liberty. In addition, as enforced today,
removing a prisoner who has committed a disciplinary infraction from the general
population is not an “atypical and significant hardship” of normal existence in
prison. In fact, such an assignment is not dissimilar to a transfer from a less-secure
to a more-secure institution, where a prisoner must adapt to more burdensome and
strict living conditions. To quote the United States Supreme Court, “Discipline by
prison officials in response to a wide range of misconduct falls within the expected
perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485.
As noted, the Supreme Court in Sandin rejected the logic of Hewitt, which
found that state prison regulations, much like those involved here, established a
protected liberty interest. The Sandin Court unequivocally held that such
regulations are laudatory and cannot be used against the state to require it to meet
16
more stringent procedural requirements before taking punitive action to confine a
disorderly prisoner away from the general population:
Hewitt has produced at least two undesirable effects. First, it creates
disincentives for States to codify management procedures in the
interest of uniform treatment. Prison administrators need be concerned
with the safety of the staff and inmate population. Ensuring that
welfare often leads prison administrators to curb the discretion of staff
on the front line who daily encounter prisoners hostile to the
authoritarian structure of the prison environment. Such
guidelines are not set forth solely to benefit the prisoners. They
also aspire to instruct subordinate employees how to exercise
discretion vested by the State in the warden, and to confine the
authority of prison personnel in order to avoid widely different
treatment of similar incidents. The approach embraced by Hewitt
discourages this desirable development: States may avoid the creation
of “liberty” interests by having scarcely any regulations, or by
conferring standardless discretion on correctional personnel.
Second, the Hewitt approach has led to the involvement of federal
courts in the day-to-day management of prisons, often squandering
judicial resources with little offsetting benefit to anyone.
Sandin, 515 U.S. at 482 (emphasis added). Both of these logical observations
made by the United States Supreme Court in 1995 support our decision today to
recede from prior decisions which allow Close Management decisions to be
challenged by writ of habeas corpus, which encourages excessive state judicial
oversight and interference with prison management, without any real substance at
stake or real benefit conferred on state prisoners while creating a risk of
diminishing state prison security and safety.
17
In 1987, this court relied on the logic of Hewitt in discussing why a claim
challenging assignment to Close Management would be properly heard in habeas
corpus. In Thompson v. Dugger, 509 So. 2d 391 (Fla. 1st DCA 1987), we stated:
“Although an inmate has no constitutional due process right to notice and a hearing
before his confinement status is changed, such right may be created by state law.”
509 So. 2d 391, 392 (Fla. 1st DCA 1987) (citing Hewitt). This court granted the
writ of habeas corpus and required an evidentiary hearing in the circuit court,
based on the Department’s own internal rules regarding the notice to be provided
to the inmate. Thus, this court held that the Department’s internal rules created a
right to due process before the inmate could be assigned to Close Management.
While its logic was not explicit, this court’s decision in Thompson was, by
necessity, based on the principle that because the State had created a liberty
interest in remaining in the general population, by the Department’s rules, the
inmate was entitled to assert a constitutional claim that was properly heard by writ
of habeas corpus. This purported constitutional claim required an evidentiary
hearing to determine whether the inmate’s rights, created by state law, had been
protected. Of course, if there is no right to remain free from Close Management,
then the underlying premise of Thompson was flawed.
This court previously followed this same logic in Granger v. Florida State
Prison, 424 So. 2d 937 (Fla. 1st DCA 1983), where we held that a prisoner
18
possessed a liberty interest, created by state law, in remaining in the general
population; thus, the prisoner was entitled to a writ of habeas corpus to challenge
the Department’s alleged failure to follow its internal rules. Interestingly, the
Department argued in Granger, to no avail, that the prisoner did not have a liberty
interest:
[W]e reject the State’s contention that the denial of Granger’s petition
should be affirmed on the ground that he has failed to assert a
sufficient liberty interest. While it is true that due process attaches
only to those rights created by the State, it cannot be said that the
State has not created a liberty interest in being free from arbitrary
transfers from the general prison population to administrative
segregation. See Parker v. Cook, 642 F.2d 865 (5th Cir. 1981); and
section 33-3.081, Fla. Admin. Code.
424 So. 2d at 938. But we hold today that the Department’s position was correct.
The Department did not “create” a protected substantive liberty interest under the
federal Due Process Clause, or state constitutional provisions, by simply enacting
rules that guide its decision to confine prisoners in Close Management, based on
misconduct that threatens the safety and security of the prison’s staff, other
inmates, and visitors.
We now recognize that prisoners do not possess a constitutionally protected
substantive liberty interest in remaining in the general population, either under the
terms of the federal Due Process Clause or in the Close Management regulations
enacted by the Department itself. As the Supreme Court recognized in Sandin, it is
illogical to penalize a state agency, which enacts rules to ensure the uniform
19
application of prison management of inmates, by subjecting the agency to
heightened judicial scrutiny triggered under the Due Process Clause. Rather, the
more logical approach properly defers to the difficult and dangerous challenges
faced by the Executive Branch in managing state prisoners, by providing that
judicial review of challenges to Close Management is conducted not by writ of
habeas corpus – which necessarily implies that a prisoner’s right to immediate
release is at stake and that heightened and less deferential review is required – but
instead to conduct judicial review by the extraordinary writ of mandamus, in the
same manner that challenges to disciplinary reports are filed in the Second Circuit
Court in Leon County. See, e.g., Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006)
(stating “if the prisoner alleges entitlement to immediate release, a petition for
writ of habeas corpus is the proper remedy; whereas if the prisoner does not allege
entitlement to immediate release, a petition for writ of mandamus is the proper
remedy.”) (footnote omitted; emphasis added); Magwood, 98 So. 3d at 725
(noting that challenge to disciplinary report was properly filed by writ of
mandamus in Second Circuit in Leon County, but claim challenging placement in
Close Management, which was based on same disciplinary report, was filed by
writ of habeas corpus in county in which prisoner was incarcerated). Under our
holding today, all claims in this case would be filed in the circuit court in and for
Leon County, as would be more logical. This type of judicial review of Close
20
Management would be in the nature of an appeal of the Department’s decision, in
which a circuit court may not overturn a Department’s administrative decision of
assignment to Close Management, unless the Department’s decision was clearly
arbitrary. See, e.g., Sheley, 703 So. 2d 1202. As described in Sheley, further
review of the Department’s decision may be pursued by very limited “second-tier”
certiorari in this court. Id. at 1206.
Habeas corpus is not the correct remedy to provide to a state prisoner who
cannot make a claim for immediate release. Jones v. Sec’y, Dep’t of Corr., 2015
WL 3952690 (N.D. Fla. June 28, 2015) (dismissing habeas corpus petition, in part,
because no constitutional right to due process in disciplinary procedures employed
by Department, and disciplinary confinement for 30 days did not deprive prisoner
of “liberty,” noting, “‘Federal due process does not require that state prison
officials strictly comply with administrative regulations governing disciplinary
hearings in the prison setting’” (quoting Hilderbrandt v. Butts, 550 F. App’x 697,
700 (11th Cir. 2013)), and “‘as various circuit courts [of appeal] have held when
ruling on an inmate’s claim that he was denied use of a prison’s grievance
procedure, an inmate has no constitutionally-protected liberty interest in access to
that procedure.’” (quoting Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir.
2011))); State ex. rel. Haley v. Groose, 873 S.W.2d 221 (Mo. 1994) (en banc).
Here, Petitioner is not asserting an entitlement to immediate release from
21
incarceration, but only a release from Close Management. Courts have properly
recognized, however, that such a change in incarceration status is only a change in
the inmate’s classification. Lowery v. Lambdin, 687 So. 2d 55, 57 (Fla. 4th DCA
1997) (noting that claim challenging Close Management classification was “not
truly one for habeas corpus and therefore, [Article I, section 13, Fla. Const.,
providing for no cost to be charged to consider petition for habeas corpus] has no
application. . . . On remand the trial court may consider whether the petition is
properly brought as a habeas corpus.”).
If it were not for our prior precedent under the liberty interest analysis and
logic of Sandin, Petitioner would not be entitled to claim release by writ of habeas
corpus, but instead would be required to file a petition for a writ of mandamus, as
he can only state a claim in state law, to wit: the Department has somehow failed
to follow its own self-binding procedures. Such a pleading would, by logic, be
filed under mandamus in the Second Circuit Court in Leon County, the county in
which the Department’s headquarters are located. Burgess v. Crosby, 870 So. 2d
217, 219 n.5 (Fla. 1st DCA 2004) (“A petition for writ of habeas corpus . . . is
properly filed in the county in which the inmate is being detained. If an inmate
challenges a gain time issue, but is not claiming the right to immediate release, a
petition for writ of mandamus is filed in the county where the Department of
Corrections is headquartered.” (citations omitted)). In other words, outside of the
22
status of Close Management issues, a prisoner asserting a claim other than
entitlement to immediate release would not normally be permitted to state such a
claim by petition for writ of habeas corpus in the county in which he is
incarcerated, for the simple reason that the very nature of the writ is to “test solely
the legality of the petitioner’s imprisonment[.]” Sneed v. Mayo, 66 So. 2d 865,
869-70 (Fla. 1953) (holding “The great [writ] of habeas corpus is a writ of right
obtainable under our Constitution by all [persons] who claim to be unlawfully
imprisoned against their will. . . . The purpose of the writ being to bring the
petitioner before a court of competent judicial tribunal in order that inquiry may be
made into the legality of his detention . . . .” (citations omitted)); State ex. rel.
Hamilton v. Mayo, 167 So. 34 (Fla. 1936) (holding “the rule being well settled that
where an application for writ of habeas corpus is made to this court and the petition
showing on its face that the alleged detention complained of is in conformity to a
valid conviction and sentence, the writ itself may be denied on the face of the
showing made . . .”). In Sneed, the petitioner asserted that he had not waived his
right to a trial by jury, and the supreme court remanded the claim to the circuit
court for an evidentiary hearing. 66 So. 2d at 874. In Hamilton, the petitioner
claimed he had been convicted in a court which lacked “constitutional existence”;
the supreme court denied the petition on its face. 167 So. at 35.
23
Thus, historically, a person seeking relief by writ of habeas corpus is – and
by definition must be – asserting that he or she is entitled to immediate liberty and
release from unlawful detention. In Brown v. Wainwright, 498 So. 2d 679, 679
(Fla. 1st DCA 1986), we held where a petition for writ of habeas corpus “fails to
allege that the relief requested would entitle the petitioner to either an immediate
release or a new trial, the writ may not be granted.” (Emphasis added.) This is
the correct rule of law and the traditional and historical basis for judicial relief by
writ of habeas corpus. See also Duncan v. Fla. Parole Comm’n, 939 So. 2d 176,
176 (Fla. 1st DCA 2006) (holding that, although “inartfully pled,” prisoner
challenging revocation by Parole Commission of his prior conditional release
stated claim for relief by writ of habeas corpus requiring circuit court to issue order
to show cause); Black v. State, 490 So. 2d 1287, 1288 (Fla. 1st DCA 1986)
(holding that “initial reason” for denying petition for writ of habeas corpus to
appeal denial of writ of mandamus challenging Presumptive Parole Release Date
“is that it does not allege that the relief requested will entitle the petitioner to
release or a new trial”). But in the area of claims challenging the Department’s
decision to change a prisoner’s status from general population to Close
Management, we have departed from these legal principles, in part based on prior
United States Supreme Court precedent now long rejected by that Court.
24
When the landmark decision of Gideon v. Wainwright, 372 U.S. 335 (1963),
issued, the Florida Supreme Court devised a procedure to streamline claims
involving alleged violations of the right to counsel under the Sixth Amendment to
the United States Constitution. As noted in Baker v. State, when the Florida
Supreme Court enacted “Rule 1” (the predecessor to rule 3.850, Florida Rules of
Criminal Procedure) to provide an avenue for prisoners to challenge their
convictions under Gideon, the rule provided that where this new rule did not
provide an adequate remedy, a prisoner could seek relief by petition for writ of
habeas corpus “to test the legality of his detention.” 878 So. 2d 1236, 1241 (Fla.
2004) (quoting In re Criminal Procedure, Rule No. 1, 151 So. 2d 634 (Fla. 1963))
(emphasis added). Thus, while under certain limited circumstances a prisoner can
assert a claim for habeas corpus to challenge a restraint on his or her liberty and
proceed outside the normal collateral channel for relief, the rule does not authorize
a challenge to the conditions of detention. See, e.g., State v. Bolyea, 520 So. 2d
562, 563 (Fla. 1988) (holding that postconviction rule is a “procedural vehicle for
the collateral remedy otherwise available by writ of habeas corpus”). Here, for
example, there is no claim that Petitioner is entitled to his “liberty,” but only a
claim that he should be allowed to be incarcerated in the general prison population
rather than Close Management status.
25
The “Great Writ” of habeas corpus should be primarily reserved for judicial
review of claims of unlawful detention, not claims challenging the type or the
administration of detention, which sound primarily in terms of an administrative
appeal. Sneed, 66 So. 2d at 869 (holding that habeas corpus “may not be used as a
substitute for appeal”). Just as courts have declined to allow the writ to be used as
a substitute for direct appeal in criminal cases, it is not proper, in our view, to
allow the writ to be used as a substitute for an administrative appeal challenging an
agency’s execution of its administrative duties.
Florida’s organic law mandates that the judiciary accord the most prompt
consideration to a person seeking release by writ of habeas corpus, precisely
because the time-honored and historical basis for the writ is to allow a person
prompt consideration of a claim that they are being held without lawful authority:
“The writ of habeas corpus shall be grantable of right, freely and without cost. It
shall be returnable without delay[.]” Art. I, § 13, Fla. Const. (emphasis added).
District courts have enforced this constitutional mandate unequivocally. Bocharski
v. Circuit Court of Second Judicial Circuit In and For Leon County, 552 So. 2d
946 (Fla. 1st DCA 1989); Bradley v. Sturgis, 541 So. 2d 766 (Fla. 5th DCA 1989).
But where the claim is not based on the assertion that a person is detained without
lawful authority, but solely on the claim that administration of the detention is not
in accord with the agency’s own rules, then other considerations of judicial
26
administration and proper deference to other branches of government under
Article II, section 3 of the Florida Constitution must be given due respect. See
generally Detournay v. City of Coral Gables, 127 So. 3d 869, 873 (Fla. 3d DCA
2013) (describing doctrine of sovereign immunity as founded on principle of
separation of powers, “one of the structural pillars upon which American freedoms
rest: ‘under the constitutional doctrine of separation of powers, the judicial branch
must not interfere with the discretionary functions of the legislative or executive
branches of government absent a violation of constitutional or statutory rights.’ To
hold otherwise . . . ‘would require the judicial branch to second guess the . . .
police power decisions of the other branches of government and would violate
the separation of powers doctrine.’” (citing Trianon Park Condo. Ass’n, Inc. v.
City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985) (emphasis added))). Here, as we
now recognize, there is no federal or state constitutional right of a state prisoner to
remain in the prison’s general population. Therefore, the only question posed by a
challenge to a Department decision assigning a state prisoner to Close
Management is whether the Department acted with “no” evidence to support its
decision or possibly acted in a completely arbitrary fashion, in which case, relief
may be granted by extraordinary writ of mandamus, not by writ of habeas corpus,
as no constitutional right to release or a new trial is at issue.
27
Close Management prison classifications do not create conditions that are
“atypical” of general population status, to the extent that a liberty interest would be
created under the Due Process Clause. See generally Al-Amin v. Donald, 165
F. App’x 733, 737-38 (11th Cir. 2006) (holding that state prisoner challenging
confinement in administrative segregation for approximately three years did not
establish liberty interest “under the particular facts of this case,” therefore, it is
“unnecessary for us to determine whether . . . procedures for confining Al-Amin to
administrative segregation and for keeping confined there provided Al-Amin
with due process”) (emphasis added). In Al-Amin, the court noted that
confinement “to administrative segregation, under conditions substantially similar
to those experienced by the general population of the prison, does not implicate
liberty interests,” despite the lengthy time Al-Amin had been so confined. Id. at
738. But the Court cautioned that state officials must periodically review such
status, which by their own rules are required in Florida by the Department. Cf.
Wilkinson v. Austin, 545 U.S. 209, 213 (2005) (holding that transfer to
“supermax” facility in which “almost all human contact” was prohibited and
confinement was indefinite implicated a liberty interest). Significantly, here there
is no Eighth Amendment claim that assignment to Close Management as a matter
of law constitutes cruel and unusual punishment. Osterback v. McDonough, 549
F. Supp. 2d 1337, 1356-63 (M.D. Fla. 2008) (holding no Eighth Amendment
28
violation in Department’s Close Management regulations, stating “Inmates in
[Close Management] have the same cell furnishings as inmates in the general
population . . . .[and] receive the same clothing and bedding that general
population inmates receive. The barber and grooming services for [such] inmates
and open population inmates are also the same [as are] the same three meals each
day that open population inmates receive. . . . [they] are provided with adequate
opportunities to exercise. . . . [Close Management] inmates have adequate access to
educational opportunities, and have adequate opportunities to make canteen
purchases and engage in visitation.”); Groose, 873 S.W. 2d at 223 (holding that
where claim fails to allege cruel and unusual punishment, “habeas corpus is not
available to attack the conditions of his confinement”). There is simply no credible
argument, based on the regulations establishing Close Management parameters,
that these restrictions on their face are “atypical” of the general population.
As such, individualized claims that the Department has failed to follow its
own rules in assigning a prisoner to Close Management are not valid assertions of
constitutional claims but, rather, allegations of such state law violations that do not
implicate a constitutionally-protected liberty interest. But if an inmate alleges that
a condition of Close Management is cruel and unusual punishment, thus violating
the Eighth Amendment, such a claim could be cognizable by petition for writ of
habeas corpus. Absent such an allegation, however, we hold that an inmate’s
29
challenge to assignment to Close Management may only be asserted by filing a
petition for writ of mandamus in Leon County, the Department’s headquarters. As
we wrote in Plymel, the prisoner’s burden of persuasion in seeking mandamus
relief to challenge an assignment to Close Management will be to show that “he
has a clear legal right to the performance of a clear legal duty by a public officer,
and that he has no other available legal remedies.” 770 So. 2d at 246. Further, the
inmate must show that he has exhausted all available administrative remedies. Id.
Once the petition for writ of mandamus establishes a prima facie entitlement to
relief, the circuit court should issue an order to show cause why such relief should
not be granted. Holcomb, 609 So. 2d at 751. As noted above, review in this court
of a circuit court’s decision will be by “second-tier” certiorari. Plymel, 770 So. 2d
at 246 (noting that “a circuit court order ruling on an administrative action is
reviewable in the district court by certiorari”). As we held in Plymel, the standard
of review of a circuit court order is “limited to whether the circuit court afforded
procedural due process and whether the circuit court applied the correct law.” 770
So. 2d at 246. See also Woullard v. Bishop, 734 So. 2d 1151 (Fla. 1st DCA 1999).
Thus, for example, if a prisoner alleges he has been deprived of the periodic review
required by the rules described above, he may be entitled to mandamus relief;
merely disagreeing with the Department’s discretionary decisions cannot show
entitlement to relief, as there would be no showing of a “clear legal right.”
30
We respectfully disagree with the concern expressed in Judge Wolf’s
concurring and dissenting opinion that our opinion today must always lead an
inmate to a “dead end” where no relief can be granted. As noted above, should the
inmate state a prima facie case that the Department failed to comply with its own
rules – for example, by refusing to ensure the inmate’s status continues to meet the
Department’s criteria under its own rules – a circuit court could be required to
issue a show cause order to the Department, necessitating further evaluation in that
court. See, e.g, Moore v. Fla. Parole & Prob. Comm’n, 289 So. 2d 719, 720 (Fla.
1974) (holding mandamus will not lie to compel grant of parole, which is solely
within the discretion of the Parole and Probation Commission, but “[t]he Parole
Commission is required, as any other body, to comply with constitutional
requirements; it cannot deny parole upon illegal grounds or upon improper
considerations. It is answerable in mandamus if it does.”) (emphasis added)),
cert. den., 417 U.S. 935 (1974). Relevant here, in Moore, the Florida Supreme
Court held that habeas corpus was not available to an inmate to challenge a
Presumptive Parole Release Date, which does not entitle an inmate to a reasonable
expectation of imminent release from prison. In contrast, an inmate’s claim that an
Effective Parole Release Date has been improperly set, which can more likely
affect an inmate’s opportunity for release from prison, can be asserted by petition
for writ of habeas corpus. See Fla. Parole & Prob. Comm’n v. Dornau, 534 So. 2d
31
789, 792 (Fla. 1st DCA 1988) (citing Griffith v. Fla. Parole & Prob. Comm’n, 485
So. 2d 818 (Fla. 1986), and noting that “judicial review is available only through
the common law writs of mandamus, for review of [Presumptive Parole Release
Dates], and habeas corpus, for review of [Effective Parole Release Dates].”); see
generally Sheley v. Fla. Parole Comm’n, 703 So. 2d 1202, 1205 (Fla. 1st DCA
1997) (citing Griffith and recognizing that the Florida Supreme Court established
that “review of Parole Commission orders was . . . available by mandamus or
habeas corpus,” and establishing second-tier certiorari review of denial of
mandamus relief against Parole Commission); see also Richardson v. Fla. Parole
Comm’n, 924 So. 2d 908 (Fla. 1st DCA 2006) (holding that inmate stated claim in
habeas corpus challenging Florida Parole Commission’s order revoking
conditional release supervision and remanding him to state prison). Thus, similar
to the parole (and conditional release) context, here, where the Department assigns
an inmate to Close Management, should the inmate challenge this decision by
petition for writ of mandamus, the circuit court will determine whether a prima
facie case has been established that the Department relied on improper
considerations or failed to follow its own rules. Such a proceeding lies
appropriately in mandamus, filed and considered in the Second Circuit Court in
Leon County, where the Department’s headquarters are located, not by petition for
writ of habeas corpus.
32
3. Stare Decisis
By our decision today, we recede from prior case law that improperly
subjected prison management decisions to extraordinary judicial review by habeas
corpus based on flawed analyses long rejected by the United States Supreme Court,
as thoroughly discussed above. As the United States Supreme Court has
recognized, although stare decisis is the “preferred course” in the judicial process,
“when governing decisions are unworkable or are badly reasoned, ‘this Court has
never felt constrained to follow precedent.’” Payne v. Tennessee, 501 U.S. 808,
827 (1991) (overruling prior decisions prohibiting admission of victim impact
statements in capital murder prosecutions where the death penalty may be
imposed) (quoting Smith v. Allwright, 321 U.S. 649, 655 (1944)). As the Court
also recognized in Payne, considerations of stare decisis are particularly weak in
cases in which legislative correction is either impossible or difficult to achieve. Id.
Rather, deference to stare decisis is most important in cases “involving property
and contract rights, where reliance interests are involved.” Id. at 828. Here, all
these considerations support our decision to recede from contrary prior case law.
The prior decisions were based on flawed logic, the decisions cannot be easily
abrogated by the legislature, as they implicated constitutional interests, and the
prior decisions do not affect property or contract rights. By contrast, the prior
decisions erroneously thrust this court into improper judicial second-guessing of
33
the Executive Branch’s daunting and dangerous duty to manage state prisons and
strive to protect staff and inmates, as well as public visitors. By providing that
Close Management prison classifications are reviewable only by writ of mandamus
filed in the Second Circuit Court in Leon County, we will enhance stability and
uniformity in circuit court review and better accord due deference to the Executive
Branch.
4. Petitioner’s Claim
Here, Petitioner did not assert that Department officials failed to adhere to
periodic review or any other minimum procedures established by their own rules.
Thus, whether the Department correctly determined that Petitioner’s act of spitting
in the face of an examining psychiatrist was an act “likely to cause injury” is a
discretionary decision, and may not be the basis for mandamus relief. Smith v.
State, 696 So. 2d 814, 815 (Fla. 2d DCA 1997) (recognizing that mandamus “is a
common law remedy to be used to enforce an ‘established legal right by
compelling a person in an official capacity to perform an indisputable ministerial
duty required by law.’” (citation omitted)). In Cason v. McDonough, 943 So. 2d
861, 862-63 (Fla. 1st DCA 2006), this court noted that the Florida Supreme Court
in Dugger v. Grant, 610 So. 2d 428, 432 (Fla. 1992), stated that a “modicum” of
evidence is sufficient to satisfy the “some evidence” standard required to sustain a
prison disciplinary report under Superintendent, Massachusetts Correctional
34
Institution v. Hill, 472 U.S. 445, 455-56 (1985). In other words, as long as there is
“some evidence” that Petitioner committed the act alleged, which he did not deny
below, then mandamus relief must be denied.
Here, Petitioner failed to deny that he spat in the staff psychologist’s face
but, rather, made only conclusory allegations that such an act could not “injure”
another. As this is not a criminal proceeding, it was not necessary for the
Department to find Petitioner guilty beyond a reasonable doubt, so cases
discussing the State’s burden of persuasion in criminal prosecutions are inapposite.
Smiley v. State, 948 So. 2d 964, 964 (Fla. 5th DCA 2007) (holding that
“‘[r]evocation of good time credits [in prison disciplinary context] is not
comparable to a criminal conviction, and neither the amount of evidence necessary
to support such conviction, nor any other standard greater than some evidence
applies in this context.’” (quoting Dugger v. Grant, 610 So. 2d 428, 432 n.3 (Fla.
1993) (emphasis in original))). Cf. Bujno v. Dep’t of Corr., 1 So. 3d 1138 (Fla. 1st
DCA 2009) (holding that because circuit court did not require Department to
directly respond to merits of prisoner’s defense, evidence was insufficient to affirm
circuit court’s ruling of guilty of possession of contraband by constructive
possession). Here, Petitioner failed to show a prima facie entitlement to
extraordinary relief, because he failed to deny that he did not spit in the
psychologist’s face. See Holcomb, 609 So. 2d at 751. Here, the petition itself
35
failed to sufficiently allege that the Department unlawfully classified Petitioner to
Close Management status, by neither denying that he committed the acts involved
or asserting a credible argument that such acts were not an adequate basis for the
reclassification.
Therefore, we can affirm the denial of relief here, even though the circuit
court did not, and could not, consider the claim in mandamus. See John v. Crews,
149 So. 3d 149 (Fla. 1st DCA 2014) (holding that although circuit court applied
incorrect law regarding prisoner’s cause of action and entitlement to avoid filing
fee, decision would be affirmed, as prisoner serving life sentence had no
entitlement to gaintime award, and no liberty interest was implicated). Therefore,
we affirm the circuit court’s denial of relief without further proceedings.
Conclusion and Conflict Certified
We acknowledge that in Holland, the Fifth District affirmed a circuit court
order denying the writ of habeas corpus without discussing whether that was the
proper remedy after the United States Supreme Court decided Sandin, but which
cited our decisions in Taylor v. Perrin, 654 So. 2d 1019 (Fla. 1st DCA 1995), and
Granger. Holland, 791 So. 2d at 1257. Because we recede from our prior
decisions in this court allowing such claims to be considered in habeas corpus, we
certify conflict with Holland. We also acknowledge that in Harvard v. Singletary,
733 So. 2d 1020, 1024 (Fla. 1999), the Florida Supreme Court transferred a
36
petition challenging a Close Management assignment to the county in which the
prisoner was incarcerated. But that decision discussed the supreme court’s
rationale for transferring petitions for extraordinary relief requiring factual
findings, and the court specifically stated that it was not making a decision “that
the petition has been properly titled a petition for writ of habeas corpus.” In
addition, the supreme court acknowledged that a filing fee could be required.
Thus, we do not read Harvard as a decision on the merits determining that claims
challenging assignments to Close Management must be considered by petition for
writ of habeas corpus.
We also acknowledge that, by our decision today, prisoners challenging such
decisions by petition for writ of mandamus will be required to pay a filing fee
pursuant to sections 57.081 and 57.082, Florida Statutes, absent a decision that
they are indigent. See John v. Crews, 149 So. 3d 149 (Fla. 1st DCA 2014)
(discussing appropriate statute applicable to claims challenging disciplinary
confinement, but affirming dismissal for failure to qualify for fee exemption on
other grounds). In some cases, this may impose a hardship on non-indigent
prisoners attempting to challenge assignment to Close Management, but that
implication is a policy matter addressed to the legislative branch, as our decision
that such claims do not lie in habeas corpus precludes this court from engaging in
that determination.
37
The amended petition for writ of certiorari is DENIED on the merits, for
reasons stated above, and conflict to Holland v. State, 791 So. 2d 1256 (Fla. 5th
DCA 2001), is certified.
DENIED ON THE MERITS; CONFLICT CERTIFIED.
ROBERTS, C.J., and LEWIS, WETHERELL, ROWE, RAY, OSTERHAUS,
KELSEY, and WINOKUR, JJ., concur.
WOLF, J., concurs in part and dissents in part in an opinion in which MAKAR,
BILBREY, JAY, and M.K. THOMAS, JJ., join.
MAKAR, J., dissents in an opinion in which BILBREY, J., joins.
WINSOR, J., recused.
38
WOLF, J., concurring and dissenting with opinion.
I concur in that portion of the majority opinion that determines that this
particular inmate is not entitled to relief. I also concur in the decision to declare
conflict with the Fifth District Court of Appeal’s decision in Holland v. State, 791
So. 2d 1256 (Fla. 5th DCA 2001). I would additionally certify a question of great
public importance concerning the appropriate method and scope of judicial review
of decisions to segregate prisoners from the general population. I respectfully
dissent from the decision to overturn almost 35 years of precedent which allowed
inmates to file habeas corpus proceedings in the state circuit courts to challenge
their assignments to close management.
The majority opinion states that we should adopt the reasoning of Sandin v.
Conner, 515 U.S. 472 (1995), and holds that an inmate has no liberty interest
concerning the Florida Department of Corrections’ (Department) decision to place
him or her in close management. The majority therefore determines that habeas
corpus review is no longer available.
Under our existing precedent, this holding denies the prisoner any
meaningful judicial review of the decision to be placed in close management, no
matter the duration. As explained later in this opinion, the decision by federal
courts and the federal government, which have no custodial responsibility for these
inmates, to limit their oversight of prison management should not affect the review
39
process at the state level. If anything, the limited oversight adopted by the federal
courts makes it more essential to maintain reasonable review of decisions made by
the party having primary custodial responsibility of our prisoners, the Department.
Inmates segregated from the general prison population for a potentially significant
period of time should continue to have the same reasonable court oversight
concerning their segregation from the general prison population that they have had
since 1982. Insignificant justification has been provided to overturn our precedent
and to effectively extinguish this important safeguard.
Facts
The majority has accurately described the procedural posture and underlying
facts in support of petitioner’s placement in close management status. Thus, there
is no need to repeat the work of the majority.
For purposes of this opinion, however, it is necessary to clarify petitioner’s
status and the implications concerning his placement.
Close management is “confinement of an inmate apart from the general
population.” Fla. Admin. Code R. 33-601.800(1)(d). The Department placed
petitioner in the Close Management I (CMI) category, the most restrictive single-
cell housing level of the close management classifications. Fla. Admin. Code R.
33-601-800(1)(e). The record does not show how long petitioner will be held in
close management, presumably until the Department feels such segregation from
40
the general population is no longer necessary. See Fla. Admin. Code R. 33-
601.800(16)(a). While risk assessments are done periodically, formal review only
takes place after 180 days (six months) of placement in close management and
every 180 days thereafter. Fla. Admin. Code R. 33-6601.800(16)(e). There is no
guarantee that an inmate will be released at the time of any formal review;
therefore, the duration of the segregation is indefinite and may be for extended
periods of time.
While a review of Florida Administrative Code Rule 33-601.800
demonstrates that close management is not the solitary confinement as depicted in
movies like “Murder in the First” (Warner Bros. 1995) or “The Shawshank
Redemption” (Castle Rock Entertainment 1994), it still involves segregation from
the general population and significant restrictions on items associated with human
dignity which may have serious implications regarding a prisoner’s wellbeing.2
2
1). Close management status affects an inmate’s ability to work,
which affects an inmate’s ability to earn gain time. Close
management inmates do not get credit or gain time for participating in
the GED/education class because their work is all in-cell, which
means their participation time is not counted. For inmates in the
general population, gain time for education/vocation is based upon an
inmate’s presence in the classroom and his or her participation.
Inmates in the general population are automatically assigned to a job
or program.
2). Close management inmates are only guaranteed a shower three
times per week (see Fla. Admin. Code R. 33-601.800(10)(e)), whereas
inmates in the general population can shower seven days per week.
41
See Grant Henderson, Disciplinary Segregation; How the Punitive Solitary
Confinement Policy in Federal Prisons Violates the Due Process Clause of the
Fifth Amendment in Spite of Sandin v. Conner, 99 Marq. L. Rev. 477 (Winter
2015). It is particularly significant that inmates who are placed in close
management are subject to having any of their privileges suspended or revoked
with very limited review. See Fla. Admin. Code R. 33-601.800(12).
3). Close management inmates’ visits are restricted as follows: CMI –
one non-contact visit for two hours, once a month; CMII – one non-
contact visit for two hours every two weeks; and CMIII – one contact
visit every two weeks. All visits must be scheduled by appointment.
See Fla. Admin. Code R. 33-601.800(11)(b)6, (11)(c)1, & (11)(d)1.
By comparison, inmates in the general population are allowed weekly
contact visits (Saturday/Sunday) for six hours (plus the holidays).
4). CMI inmates are only allowed to make one fifteen-minute call per
month; CMII inmates are only allowed to make one fifteen-minute
call every two weeks; and CMIII inmates are only allowed to make
one fifteen-minute call every week. See Fla. Admin. Code R. 33-
601.800(11)(b)5, (11)(c)2, and (11)(d)3. In the general population,
during weekdays phones are turned on at 12:00 p.m. and remain on
until 11:00 p.m., and on weekends and holidays, phones are turned on
at 8:00 a.m. and remain on until 11:00 p.m., and inmates may make as
many calls as they like.
5). CMI inmates are handcuffed and shackled upon exiting their cells
at all times, whether it is for group activities, medical or dental
appointments or counseling. See Fla. Admin. Code R. 33-
601.800(14)(a).
6). Inmates who are placed in close management are also subject to
having any of these privileges suspended or revoked with very limited
review. Fla. Admin. Code R. 33-601.800(12).
42
Indeed, the courts of this state have consistently held that these substantial
and significant deprivations for potentially lengthy periods of time are subject to
habeas corpus review.
Current Status of the Law
For almost 35 years, this court has held that an inmate is entitled to
challenge the assignment to close management status by filing a petition for writ of
habeas corpus in circuit court. Costello v. Strickland, 418 So. 2d 443 (Fla. 1st
DCA 1982).
In Kendrick v. McNeil, 6 So. 3d 657 (Fla. 1st DCA 2009), we recognized
the consistent availability of this remedy. The Kendrick opinion noted:
This Court has consistently held that an inmate who seeks release
from close management back into the general prison population is
entitled to proceed through a petition for writ of habeas corpus. See
Ashley v. Moore, 732 So. 2d 498 (Fla. 1st DCA 1999); Norris v. Dep’t
of Corrections, 721 So. 2d 1235 (Fla. 1st DCA 1998); Taylor v.
Perrin, 654 So. 2d 1019 (Fla. 1st DCA 1995); Guess v. Barton, 599
So. 2d 770 (Fla. 1st DCA 1992); Roy v. Dugger, 592 So. 2d 1235 (Fla.
1st DCA 1992); Thompson v. Dugger, 509 So. 2d 391 (Fla. 1st DCA
1987); see also Holland v. State, 791 So. 2d 1256 (Fla. 5th DCA
2001).
Id. at 658. 3
Since Kendrick, we have continued to recognize our consistent holding that
an inmate challenging close management status may do so through habeas corpus.
3
See also Magwood v. Tucker, 98 So. 3d 725 (Fla. 1st DCA 2012); Granger v. Fla.
State Prison, 424 So. 2d 937 (Fla. 1st DCA 1983).
43
Magwood v. Tucker, 98 So. 3d 725 (Fla. 1st DCA 2012). The right to challenge
“arbitrary transfers” from the general prison population to administrative
segregation is based not only on federal due process concerns, but also rights
recognized by the State of Florida. Granger v. Fla. State Prison, 424 So. 2d 937
(Fla. 1st DCA 1983). The majority and the Department urge this court to recede
from our precedent because of the holding in Sandin v. Conner, 515 U.S. 472
(1995).
Sandin v. Conner, 515 U.S. 472 (1995)
We should not recede from our well-reasoned precedent in light of Sandin
because: 1) the holding in Sandin merely limits the right of federal courts to
interfere with supervisory decisions made by state prison officials; 2) the holding
in Sandin does not mandate that states no longer recognize a limited liberty interest
in remaining in the general prison population; 3) this court has recognized a state
liberty interest in remaining in the general prison population a number of times
since Sandin was decided 21 years ago; 4) the State has not presented sufficient
justification to depart from almost 35 years of precedent; 5) Sandin addressed
segregation from the general prison population for a limited period of time – here
we have confinement for an unlimited duration; 6) if both federal and state
oversight are extinguished, a prisoner faced with arbitrary confinement will be left
44
with no adequate remedy; and 7) the obligation of the State to treat prisoners held
in its custody fairly and humanely implores us not to do so.
Sandin involved review of a federal lawsuit filed by a Hawaiian prisoner
pursuant to 42 U.S.C. § 1983 to challenge his assignment to close management for
30 days. Id. at 476. He asserted that the State of Hawaii had denied him due
process guaranteed by Wolff v. McDonnell, 418 U.S. 539 (1974). Id. He sought
injunctive relief, declaratory relief and damages among other items. 4 Id. The
holding in Sandin was that 30 days of administrative segregation did not involve
such an atypical and significant deprivation to create a federal liberty interest to
justify federal intervention into the oversight of inmates by the state. It further
stated that state rules providing inmates protection from abuses would not create
such a right. Id. at 487.
Sandin did not mandate that the state limit its own oversight of officials that
place prisoners in administrative segregation, nor did it mandate that the state, the
entity responsible for the health, safety, and humane treatment of human beings
held in its custody, no longer provide meaningful judicial review. Sandin did not
hold that the state may not recognize a limited liberty interest in close management
decisions. Indeed, both the Florida Supreme Court and the United States Supreme
4
The issue before us, unlike Sandin v. Conner, 515 U.S. 472 (1995), simply
involves court oversight of the decision to segregate a prisoner, not a prisoner’s
right to seek damages.
45
Court have recognized that “‘state courts are absolutely free to interpret state
constitutional provisions to accord greater protection to individual rights than do
similar provisions of the United States Constitution.’” Rigterink v. State, 66 So. 3d
866, 888 (Fla. 2011) (quoting Arizona v. Evans, 514 U.S. 1, 8 (1995)). See also
State v. Horwitz, 41 Fla. L. Weekly S211, S215 (Fla. May 6, 2016) (“[T]he United
States Constitution generally sets the ‘floor’ – not the ‘ceiling’ – of personal rights
and freedoms that must be afforded to a defendant by Florida law.”). Once the
federal system effectively withdrew from any oversight of prison officials
responsible for the classification and living conditions of inmates, it became even
more essential for the state court system to maintain meaningful review.
Indeed, even the federal courts might not refrain from oversight of
potentially indefinite durations of administrative segregation. See Wilkinson v.
Austin, 545 U.S. 209 (2005). In Wilkinson, the United States Supreme Court held
that there were limited federal due process rights for inmates placed in “supermax”
facilities where placement was for an indefinite period. While the conditions faced
by the prisoners in Wilkinson were far more onerous than the ones outlined in our
rules regarding close management, the court was also concerned with the indefinite
period of segregation that was limited only by the length of an inmate’s sentence.5
Ohio, like Florida, had limited formal review of the duration of the segregation.
5
This case does not involve an assignment to the maximum management
46
The federal courts, which do not have primary responsibility for an inmate’s
safety and wellbeing, have stated that they will not get involved unless an inmate’s
deprivation is atypical and substantial. See Sandin, 515 U.S. 472. State courts with
primary oversight responsibilities should not draw the same line. 6 As noted by the
majority, the Eleventh Circuit has held that 3 years in close management was not
an atypical and significant hardship. See Al-Amin v. Donald, 165 F. App’x 733,
734 (11th Cir. 2006). A standard that does not provide meaningful review for this
length of segregation is unworkable at the state level.
In fact, to this point, we have chosen not to draw the same line. In at least
four cases since Sandin, this court has stated that a petition for writ of habeas
corpus is still the appropriate method for challenging close management
classification. See Magwood, 98 So. 3d 725; Kendrick, 6 So. 3d 657; Ashley, 732
So. 2d 498; Norris, 721 So. 2d 1235.7
classification pursuant to Florida Administrative Code Rule 33-601.820. Maximum
management may be more like the conditions outlined in Wilkinson v. Austin, 545
U.S. 209 (2005).
6
In Toward a Standard of Meaningful Review: Examining The Actual Protections
Afforded To Prisoners In Long Term Solitary Confinement, 163 U. Pa. Law Rev.
1159 (Mar. 2015), the author Elli Marcus does a good job demonstrating how the
Sandin standard is totally inadequate in affording reasonable protections for
inmates facing administrative segregation of indefinite duration.
7
The Fifth District held that a petition for writ of habeas corpus was properly
denied where a prisoner sought release from close management. Holland v. State,
791 So. 2d 1256 (Fla. 5th DCA 2001). The Fourth District sent a case back to trial
court to determine whether habeas or mandamus was available to challenge close
management. Lowery v. Lambdin, 687 So. 2d 55 (Fla. 4th DCA 1997).
47
Effect of Majority’s Holding
The majority holds that the decisions regarding a prisoner’s placement in
close management and segregation from the general prison population do not
implicate a constitutionally-protected liberty interest. Therefore, the majority
holds that habeas corpus review is no longer available and that any request for
relief must be by petition for writ of mandamus filed in the Second Circuit for
Leon County.
The effect of the majority’s holding is to deny any review of any assignment
to close management for any duration because this court has long held that a
prisoner must have a liberty interest in order to bring a petition for writ of
mandamus challenging the Department’s actions.
In Plymel v. Moore, 770 So. 2d 242, 249 (Fla. 1st DCA 2000), this court
held that a prisoner was entitled to mandamus relief to require the Department to
follow its own rules and provide limited due process predicated on the substantive
liberty interest implicated by the prisoner’s loss of gain time. In a number of
recent cases, we have held that absent a showing of such a liberty interest, a
prisoner lacks even minimal due process rights, and thus is not entitled to
mandamus relief. See Williams v. Tucker, 87 So. 3d 1270, 1271 (Fla. 1st DCA
2012) (affirming the denial of a petition for writ of mandamus because the
prisoner, who was subjected to 60 days’ disciplinary confinement, “failed to
48
demonstrate any liberty interest implicating the protections of the Due Process
Clause”); see also Gardener v. Fla. Dep’t of Corr., 178 So. 3d 92, 94 (Fla. 1st DCA
2015) (finding the circuit court applied the correct law in denying a prisoner’s
petition for writ of mandamus in reliance on Sandin, concluding “no liberty interest
was involved” in prison disciplinary action that resulted in disciplinary
confinement); Castillo v. State, Dep’t of Corr., 174 So. 3d 452, 453 (Fla. 1st DCA
2015) (finding a circuit court did not depart from the essential requirements of the
law in denying as “frivolous” a mandamus petition challenging a prison
disciplinary proceeding that resulted in 30-days’ disciplinary confinement because
the prisoner “failed to demonstrate any liberty interest implicating the protections
of the Due Process Clause”); John v. Crews, 149 So. 3d 149, 151 (Fla. 1st DCA
2014) (affirming the dismissal of a petition for writ of mandamus because “the
revocation of gain-time does not implicate appellant's liberty interests in this case
because appellant is serving a life sentence” and thus is “ineligible for gain-time”);
Wright v. McDonough, 958 So. 2d 1132, 1133 (Fla. 1st DCA 2007) (finding the
circuit court properly denied a petition for writ of mandamus challenging a
disciplinary proceeding which “adversely affected Petitioner’s ability to earn gain-
time,” citing Wolff and Sandin).
Thus, the type of review available under existing law would cease to exist.
Issues such as arbitrariness (which this court said was reviewable in Granger, 424
49
So. 2d 937), lack of proper notice (which this court found to be reviewable in
Thompson, 509 So. 2d 391), and even failures of the Department to follow its own
rules (see Plymel, 770 So. 2d 242) would not be reviewable by the court without
demonstrating a liberty interest, which the majority finds is not implicated by close
management. The majority’s suggestion that review is available by mandamus is
merely a dead end due to the majority’s holding that there is no liberty interest.
The majority’s suggestion that it is not creating a dead end is simply not supported
by our recent case law that requires a liberty interest in order for a prisoner to
obtain mandamus relief. It also creates confusion regarding the scope of
mandamus review.
Insufficient Justification for Overturning Precedent
Absent a significant change in circumstances or a substantial policy reason,
a court should adhere to its precedent pursuant to the doctrine of stare decisis.
Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015).
Overruling precedent is never a small matter. Stare decisis – in
English, the idea that today’s Court should stand by yesterday’s
decisions – is “a foundation stone of the rule of law.” Application of
that doctrine, although “not an inexorable command,” is the
“preferred course because it promotes the evenhanded, predictable,
and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity
of the judicial process.”
Id. at 2409 (citations omitted).
50
In refusing to overturn precedent, the United States Supreme Court went on
to say that adhering to stare decisis means an allegation by itself that prior
decisions are wrong provides an insufficient reason to overturn precedent.
Accordingly, an argument that we got something wrong – even a good
argument to that effect – cannot by itself justify scrapping settled
precedent. Or otherwise said, it is not alone sufficient that we would
decide a case differently now than we did then. To reverse course, we
require as well what we have termed a “special justification” – over
and above the belief “that the precedent was wrongly decided.”
Id. (emphasis added; citations omitted).
This court acknowledged the vital importance of precedent and stare decisis
in Westphal v. City of St. Petersburg, 122 So. 3d 440, 447 (Fla. 1st DCA 2013),
quashed on other grounds by Westphal v. City of St. Petersburg, 41 Fla. L. Weekly
S261 (Fla. June 9, 2016). We noted with approval the United States Supreme
Court case of Arizona v. Rumsey, 467 U.S. 203 (1984), which stated the rule of
law “that a Court should not depart from precedent in the absence of a special
justification.” Westphal, 122 So. 3d at 447. While the court in Westphal departed
from precedent, it did so based on two justifications not present in the existing
case: 1) that the legal argument (unconstitutional application of the statute) had not
been made in the previous cases; and 2) the prior court interpretation had spawned
unexpected and unjust results. Neither is present or argued in this case. The
precise argument made by the Department in this case was previously rejected in
Kendrick and Magwood. Further, there is no evidence that any unexpected results
51
have occurred as a result of this court’s precedent. A review of the case law
demonstrates a system that is operating well with reasonable limited review of
decisions to segregate prisoners.
The Department’s main arguments for overturning precedent are that 1) by
not confining challenges to the Leon County Circuit Court, it may receive
inconsistent decisions affecting its ability to supervise prisoners; and 2) the habeas
standard of review may lead to the courts micromanaging the prison system. Mere
speculation concerning possible inconvenience is insufficient to justify abandoning
precedent. In fact, a review of prior case law demonstrates the Department’s fears
are unrealistic.
The Department has not cited one instance in 35 years in which there has
been an inconsistent circuit or appellate decision which has affected its ability to
manage the prison population. Our court system is designed to resolve such
conflicts should they arise. Nor is there any evidence that trial judges in circuits
other than the Second Circuit would not render well-thought-out decisions
concerning whether the Department is following its rules or providing minimal due
process in imposing administrative segregation. Departmental convenience
concerning Leon County venue privileges is not a valid reason for limiting this
important right of inmates.
52
The majority asserts that the courts should not be involved in
micromanaging the Department in its difficult job of maintaining control within the
prison system, and therefore, we should recede from our prior case law. No one
disputes it is a difficult job to manage inmates, but the Department has failed to
demonstrate that in almost 35 years of limited court oversight, the courts have
interfered with the operation of the prison system. No specific instance concerning
micromanagement is cited. Few, if any, decisions have resulted in the
Department’s decisions being overturned. Review even by habeas corpus is
limited in nature. The present habeas corpus review is limited and does not allow
an inmate to bring an action in circuit court until all administrative remedies have
been exhausted. See Sutton v. Strickland, 485 So. 2d 25 (Fla. 1st DCA 1986). The
Department has a full opportunity during the administrative process to demonstrate
it has met the limited due process rights afforded an inmate concerning
classification decisions. See, e.g., Plymel, 770 So. 2d at 249. Decisions of the
Department have not been second-guessed, but court oversight has served to
protect from totally arbitrary actions of the Department or substantial failure of the
Department to follow its own rules. Id.
In those rare occurrences where the Department has been required to
respond, it has primarily been for the Department to present record evidence that it
has followed its own rules. See, e.g., Thompson, 509 So. 2d 391. Again, the
53
convenience of the Department to have cases filed in Leon County does not justify
overturning our precedent.
Reasonable oversight does not violate separation of powers principles. In
fact, it is the duty of the court to provide limited oversight to prevent arbitrary
abuses. It cannot be reasonably argued that such abuses may not occur. The courts
need to be available, even if on a limited basis, to prevent such behavior. Because
the Department has failed to demonstrate that “special justification” for
overturning our well-reasoned precedent, I would not do so.
54
MAKAR, J., dissenting.
Thirty-five years of precedent are jettisoned, replaced in part by a pastiche of
legal concepts cobbled together to create a newfound remedy, proving the adage
that a camel is a horse designed by committee. Neither constitutional text,
precedent, nor changed circumstances support the result; conflict and confusion are
created where none has existed; and unforeseen, hydra-like consequences are born.
Little commends the end product; it’s a solution for a non-existent problem.
Let’s put this en banc case—purportedly of exceptional importance—in
context. It is one of a miniscule subcategory of inmate petitions comprising about
0.2% of our annual workload of approximately 5000 cases. About ten times a year,
an inmate put in close management (CM) seeks judicial review, claiming his
placement is so arbitrary or oppressive as to invoke judicial intervention. Relief is
usually denied, sometimes summarily, but not always. The judicial burden of
processing these few cases pales in comparison to the avalanche of prisoner
petitions processed in this Court8 and others9 for which relief is most often denied.
See Harvard v. Singletary, 733 So. 2d 1020, 1023 (Fla. 1999) (“Many prisoner
8
In 2015, 1079 original criminal petitions were filed in this Court, the bulk of
which involve inmates seeking extraordinary writs. This number has been
approximately 1000 petitions annually since 2011.
9
In 2015, 691 original criminal petitions were filed in the Florida Supreme Court
seeking extraordinary writs. This exceeds the 500 mentioned in its decision in
Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999).
55
petitions are successive, and a large number are completely without merit.”). From
a judicial administration perspective, we face greater challenges than the
processing of this lilliputian sliver of our docket.
For over three decades, our precedent has authorized this process, one that
has proven neither unworkable nor controversial. See, e.g., Costello v. Strickland,
418 So. 2d 443 (Fla. 1st DCA 1982) (granting relief in prisoner’s challenge to CM
status raised in a habeas petition). Now, the Department wants us to depart from
our long-standing precedent, eliminating judicial review of its CM decisions
entirely. It asks that we abandon an established constitutional remedy, the writ of
habeas corpus, which is “granted freely and without cost” and “shall never be
suspended,” article I, section 13, Florida Constitution, because using it in the CM
context is a “diminution of the Great Writ that must end.” 10 The Department says
that the status quo “may have made sense years ago when little was known about
the conditions of CM units and allegations of arbitrary placement abounded.”
Judicial review of CM challenges should be eliminated, we are told, because CM
processes have evolved and become so “modern” as to operate independently of
the judicial branch without fear that abuses in prison will occur.
10
Sight should not be lost that the writ was originally judicially-created
specifically as “an instrument by which [judges] supervised imprisonment orders
made anywhere, by anyone, for any reason.” Paul D. Halliday, Habeas Corpus:
From England to Empire 9 (Harvard University Press 2010). It exists as the
quintessential writ by which judges are to hear the pleas of any and all who are
imprisoned.
56
The claim that judicial precedents over the past decades justify overruling
our caselaw has no support whatsoever. Nothing in the Florida or United States
constitutions has changed; no case from the United States Supreme Court or the
Florida Supreme Court in the past thirty-five years suggests that our precedents on
this topic should be abandoned; and decisions of our sibling courts are in accord
with our precedents. Indeed, no court nationwide has done what the Department
asks us to do.
The entire linchpin of the Department’s theory is Sandin v. Conner, 515 U.S.
472 (1995), a twenty-year-old decision that limited—but did not eliminate—
judicial review of disciplinary challenges. Sandin specifically left open review
where an institution imposes an “atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Id. at 484. Courts nationwide have
cited Sandin 16,628 times, but none have read it as ushering in the elimination of
judicial review of CM-type assignments. The Department also cites a smattering of
cases that purportedly support the total elimination of an inmate’s liberty interest in
the CM context, but none specifically do so; and the cases are either unpublished,
non-precedential, or they merely support the general concept from Sandin that only
atypical and significant conditions create a protectable interest.
57
Moreover, though debate exists on the baseline of Sandin’s standard, 11 no
debate exists on its application; courts have routinely applied it to decide whether a
prison placement falls within its parameters. The United States Supreme Court has
done so. See, e.g., Wilkinson, 545 U.S. at 223 (concluding that “assignment to
[Supermax prison] imposes an atypical and significant hardship under any
plausible baseline”). And, indeed, we’ve applied it a number of times and found it
workable. See, e.g., John v. Crews, 149 So. 3d 149, 151 (Fla. 1st DCA 2014)
(“Based on Sandin, appellant’s placement in disciplinary confinement for forty-
three days did not present an atypical, significant deprivation implicating the
protections of the due process clause.”).
Simply said, no precedent supports a deviation from stare decisis; no flawed
logic has been shown; and recasting the status quo in another form serves no
purpose. Our precedents have not thrust us into “improper judicial second-
guessing” of governmental actions, whether dangerous or otherwise, as the Court
believes; nor have they—as the Court claims—“encourage[d] excessive state
judicial oversight and interference with prison management, without any real
substance at stake or real benefit conferred on state prisoners while creating a risk
of diminishing state prison security and safety.” Maj. Op. at 17. Not a single
11
Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (“In Sandin’s wake the Courts of
Appeals have not reached consistent conclusions for identifying the baseline from
which to measure what is atypical and significant in any particular prison
system.”).
58
instance has been brought to our attention to support the claim that the judges of
this Court or any other have acted improperly or, through excessive oversight,
interfered with prison operations for no good reason.
And no “changed circumstances” warrant the exercise of en banc powers to
overturn our caselaw. While it is highly laudable that Florida’s prison system has
adopted additional rules, procedures, and protocols for CM assignments, which are
said to be solely non-punitive management tools, that does not logically mean that
courts should fold up their tents and forego judicial review, particularly under
separation of powers principles. Courts exist to protect rights, and no law or
tradition exists to abdicate that responsibility absent the most compelling of
justifications. We are in the business of reviewing governmental actions that may
impinge on people’s rights; administrative deference, not judicial abdication, is
what’s due.
What’s more, the United States Supreme Court has made clear that the
determination of an inmate’s liberty interest is not based solely on what state
regulations say (or how numerous and dense they are), but on the nature of prison
conditions imposed relative to prison life generally. The Court explained this point
as follows:
After Sandin, it is clear that the touchstone of the inquiry into the
existence of a protected, state-created liberty interest in avoiding
restrictive conditions of confinement is not the language of
regulations regarding those conditions but the nature of those
59
conditions themselves ‘in relation to the ordinary incidents of prison
life.’
Wilkinson, 545 U.S. at 223 (citation omitted) (emphasis added). Thus, contrary to
the Department’s (and the Court’s) view that inmates “do not have a liberty interest
in their custody status while in prison,” it is clear they do, albeit more narrowly
circumscribed. We are in no position to overrule the United States Supreme Court
on this point. And the high court has clearly said that facial readings of prison
regulations are not the touchstone; instead, it is the nature of the actual conditions
imposed. This makes sense because of the improbability of a state promulgating
prison regulations that facially impose atypical, significant restrictions.
A few final observations. First, the Court concedes that by overturning long-
standing precedent it creates conflict with our sibling courts and potentially our
supreme court. The result is a judicial outlier in a sea of precedent to the contrary;
no court anywhere has read Sandin as does this Court. We will be seen as straining
to squeeze juice from Sandin’s timeworn rind, overplaying its significance, and
altering our caselaw for no good reason. Second, the Court’s lengthy opinion and
new-fangled remedy, much like a Rube Goldberg machine, are over-engineered to
perform what has been a simple, uncomplicated, and non-controversial task; they
will likely create unnecessary confusion and have the unintended consequence of
increased prisoner litigation. It is said the new remedy specifically does not
displace existing review via a petition for a writ of habeas corpus based on prison
60
conditions in the CM system. Thus, inmates will now file two petitions, one
seeking mandamus to review the CM placement decision, and another seeking a
writ of habeas corpus to review the conditions of CM. This will undoubtedly result
in more burdens on judicial administration, not fewer. And prisoners who pursue
the new remedy, if indigent, as most are, will impose further burdens due to the
process and paperwork necessary to waive filing fees in this new class of cases.
Finally, courts have a role to play in making the law understandable and efficient;
we accomplish neither in this case. If it ain’t broke, don’t fix it.
61
Robert E. Banks v. Julie L. Jones, Secretary, etc.
Court: District Court of Appeal of Florida
Date filed: 2016-07-12
Citations: 197 So. 3d 1152
Copy CitationsCombined Opinion