Carter v. Thompson

• Citation: 808 F. Supp. 1548
• Decision Date: 16 December 1992
• Docket Number: No. 90-235-Civ-FtM-21(D).,90-235-Civ-FtM-21(D).
• Parties: Charles Edward CARTER, Plaintiff, v. Lawrence THOMPSON; Wilmer Carter; Lisa Wright; Don M. Dean; Frank Youngblood; and Sgt. Tompkins, Defendants.
• Court: U.S. District Court — Middle District of Florida

808 F. Supp. 1548

Charles Edward CARTER, Plaintiff, v. Lawrence THOMPSON; Wilmer Carter; Lisa Wright; Don M. Dean; Frank Youngblood; and Sgt. Tompkins, Defendants.

No. 90-235-Civ-FtM-21(D).

United States District Court, M.D. Florida, Ft. Myers Division.

December 16, 1992.

COPYRIGHT MATERIAL OMITTED

Charles Carter, pro se.

Herschel C. Minnis, Tallahassee, FL, Nadine Z. Suissa, Hollywood, FL, for defendants.

ORDER

NIMMONS, District Judge.

Pro se prisoner Plaintiff is proceeding on an amended civil rights complaint, filed July 8, 1991, pursuant to 42 U.S.C. § 1983.¹ Plaintiff alleges that Defendants violated his due process rights, his right to access "to the law," and Eighth Amendment right to be free from cruel and unusual punishment while he was incarcerated at Charlotte Correctional Institution (CCI). Plaintiff alleges that on January 7, 1990, his cell was searched and eighteen blank inmate passes were found. Plaintiff claims that he had no knowledge of the passes, and that he told Defendants he did not know anything about the passes. Inmate passes are contraband at CCI.

Plaintiff claims that, on or about January 9, 1990, he received a Disciplinary Report for violating Florida Administrative Code Rule 33-22.012 (9-4) Conspiracy To Commit Crime. Further, Plaintiff alleges that the charge was investigated, and that he gave a statement and named witnesses in his defense.

Plaintiff alleges that on January 11, 1990, CCI determined that Plaintiff should have been charged with violating (3-12), Possession of Any Other Contraband, instead of (9-4) Conspiracy To Commit Crime, so a new Disciplinary Report was issued, charging Plaintiff with the new charge. Plaintiff alleges that the new charge was not investigated.

Plaintiff claims that on January 17, 1990, Defendants held a Disciplinary Hearing on the new charge. Plaintiff claims that he told the hearing officers, Defendants Wright, Carter and Thompson, that the charge had not been investigated; that he had not been given his procedural safeguards as mandated by Rule 33-22.005; and that he had not been afforded the opportunity to offer material witnesses, to seek staff assistance or otherwise prepare his defense to this charge. Plaintiff claims that Defendants told him that they would not comply with Rule 33-22.005 and that they would not permit him to call material witnesses or offer any defense to this charge.

Plaintiff further claims that Defendants found him guilty, partly based on a statement allegedly made by Plaintiff admitting guilt. Plaintiff claims that he never made such a statement.

Plaintiff alleges that he was sentenced to fifteen days in disciplinary confinement and was forced to forfeit his earned gain time for January, 1990. Plaintiff claims that he requested a DC1-303 Form, which is a Request for Administrative Remedy on Appeal, in order to immediately appeal his conviction and sentence and to gain his release from disciplinary confinement. Plaintiff claims that Defendant Tomkins informed Plaintiff

that he would not give him a form DC1-303 for his appeal, and further, no DC1 forms were kept in disciplinary confinement, and further, Defendant Tomkins informed Plaintiff that he would not be permitted to file any request for Administrative Remedy while he was in disciplinary confinement, contrary to Rule 33-29.015(2), Fla.Admin.Code.

Plaintiff alleges that the conditions of disciplinary confinement violated his right to be free from cruel and unusual punishment. He claims:

While in disciplinary confinement, Plaintiff was forced to suffer from severe cold.... temperature in disciplinary confinement was maintained at such an unbearable cold level that Plaintiff shivered uncontrollably and had to curl in a fetal position under a small woefully inadequate blanket for the duration of his 13 days in disciplinary confinement.... Plaintiff was denied any clothing except for one pair of underwear bottoms only. Plaintiff complained of the frigid condition and was told that it was part of the punishment.... These painful condition caused Plaintiff to undergo severe pain from the frigid temperature, prolonged sleep deprivation and loss of appetite.

Plaintiff claims that after his release from disciplinary confinement, he filed a request for Administrative Remedy on Appeal challenging his conviction and sentence for charge 3-12 (Possession of Any Other Contraband). Further, Plaintiff states that on April 11, 1990, his conviction and sentence were vacated by Assistant Superintendent Frank Youngblood, because the Disciplinary Report for the charge of Possession of Any Other Contraband had not been investigated, and because Plaintiff was not given the opportunity to present his material witnesses, seek staff assistance or otherwise prepare a defense to that charge.

Plaintiff claims that it was Defendant Dean's practice, policy and custom to maintain the excessively punitive conditions in disciplinary confinement to go beyond the acceptable punishment as stated in Chapter 33-22.012, Florida Administrative Code. Further, he claims that it was Defendant Youngblood's policy, practice and custom to violate Chapter 33-29.015(2) by not having DC1-303 forms available in disciplinary confinement "in order to prevent prisoners from appealing their Disciplinary Report in a timely manner thereby depriving them of due process."

Plaintiff alleges that he was denied "access to the law" because he could not appeal his Disciplinary Report hearing in a timely manner and thus had to serve a sentence for a Disciplinary Report that was later vacated. Further, Plaintiff claims that the conditions of disciplinary confinement violated his Eighth Amendment right to be free from cruel and unusual punishment. He also alleges that Defendants violated the Florida Administrative Code, the Florida Department of Corrections Policy and Procedure Directives and Institutional Operating Procedures. Plaintiff seeks declaratory relief, and compensatory and punitive damages, as well as attorneys' fees.

Defendants filed a motion for summary judgment on February 9, 1992. Defendants contend that Plaintiff fails to state a claim for relief under section 1983; that they are entitled to qualified immunity and that the Eleventh Amendment bars this suit against the state; that negligence is not actionable under section 1983; and that Plaintiff has not demonstrated entitlement to relief.

Defendants filed affidavits of Frank Youngblood and Don Dean. Both swear that it has never been their policy, practice or custom to violate any of the Florida Administrative Code Rules. Further, they swear:

DC1-303 forms are and always were readily available to disciplinary confinement inmates, as is promulgated by law.

They state that they were not present at Plaintiff Carter's January 17, 1990, Disciplinary Hearing and were not personally involved in the decision to charge him or find him guilty. Both swear that they know of no frigid temperatures in disciplinary confinement and that they would have corrected the problem had they been aware of it.

Further, they swear that inmates in disciplinary confinement in January of 1990, at CCI received two sheets, one blanket, a pair of trousers and a shirt, a T-shirt, socks and boxer shorts. They swear that there is no air conditioning, but that there are ventilation fans and that the heat is turned on if it is cold. Further, Defendant Youngblood swears that "In accordance with my training and FAC rules, I did receive his appeal, have the conviction reversed, and his gaintime restored. This decision was made in good faith and indicates that I did not have nor do I have any practice or procedure to hinder an inmate's right to a fair appeal."

Defendants also submitted the affidavit of Robert Barto, Classification Officer at CCI at the time of the alleged events. Defendant Barto swears that he personally reviewed Plaintiff's file for grievances filed by him in late January and early February of 1990, concerning his being cold while in disciplinary confinement. He swears that there were none.

In accordance with Griffith v. Wainwright, 772 F.2d 822 (11th Cir.1985), the Court, on March 6, 1992, notified Plaintiff of the summary judgment rules, of his right to file affidavits or other materials in opposition to the motion and of the consequences of default. Plaintiff filed his response on March 26, 1992. On March 30, 1992, Defendants filed a response to Plaintiff's brief in opposition to Defendant's motion for summary judgment and motion to strike (Doc. No. 33). Defendants claim that Plaintiff raised new evidence in his response to their motion for summary judgment. They contend that the alleged new evidence should be stricken.

On April 10, 1992, Plaintiff filed a motion to dismiss Defendant's motion to strike (Doc. No. 35). Plaintiff claims that he raised no new evidence. Plaintiff is no longer incarcerated at Charlotte Correctional Institution.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment should be entered only if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Warrior Tombigbee Transportation Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (quoting rule). "The party seeking summary judgment bears the exacting burden of demonstrating that there is no dispute as to any material fact in the case." Id. "In assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion." Id. (quoting Clemons v. Dougherty County, Georgia, 684 F.2d 1365, 1368 (11th Cir.1982)). See also Thrasher v. State Farm Fire & Casualty Co., 734 F.2d 637 (11th Cir.1984).

If any factual issues are present in the records, the Court must deny the motion and proceed to trial. 684 F.2d at 1369. Moreover, summary judgment should be denied when some of the alleged incidents on...