Holcomb v. Department of Corrections, 92-288

• Decision Date: 07 December 1992
• Docket Number: No. 92-288,92-288
• Citation: 609 So.2d 751
• Parties: 17 Fla. L. Week. D2816 Larry HOLCOMB, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
• Court: Florida District Court of Appeals

Page 751

609 So.2d 751

17 Fla. L. Week. D2816

Larry HOLCOMB, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.

No. 92-288.

District Court of Appeal of Florida First District.

Dec. 7, 1992.

Larry Holcomb, Pro Se.

Robert A. Butterworth, Atty. Gen., and Susan P. Stephens, Asst. Atty. Gen., Tallahassee, for appellee.

ALLEN, Judge.

The appellant appeals a final order denying his petition for a writ of mandamus. The issue is whether the trial court can order a petitioner to produce evidence in support of factual allegations where the respondent has not alleged any conflicts in the facts. Although a trial judge cannot, we affirm the denial of relief in this case because the petition is legally insufficient on its face.

The appellant, an inmate, filed a petition for a writ of mandamus in the circuit court alleging that on four separate occasions he was charged with disciplinary infractions and was denied permission to call witnesses he had previously requested. He sought an order directing the Department of Corrections (the department) to expunge the disciplinary reports and award gain time lost as a result of the disciplinary reports.

In response to an order to show cause, the department argued that the appellant had not demonstrated a clear legal right to call witnesses and attached the four disciplinary reports. The court issued an order denying mandamus relief on the basis that no evidence indicated that the appellant had asked to call live witnesses at his hearings. However, the court "remanded" the case to allow the appellant thirty days to file additional evidence supporting his claim. Soon thereafter, the department requested the court to clarify its order with regard to the "remand." The court issued an order of clarification which specifically offered the appellant "the opportunity to present evidence, by affidavit or other documentary presentation to establish that he in fact requested that witnesses appear live and give testimony at any of the disciplinary hearings." The order gave the appellant an additional twenty days from the order within which to file the evidence. The appellant did not file any evidence by the deadline, and the court denied the petition for a writ of mandamus, saying that the appellant had defaulted in his obligation to present evidence demonstrating that he had requested witnesses.

The appellant first argues that his verified petition containing allegations that he requested witnesses suffices as proof of same. The appellant cites to cases where courts held that for purposes of surviving a motion for summary judgment, the allegations in a plaintiff's sworn complaint must be taken as true and accorded the same dignity as the moving party's affidavit. See Rinzler v. Carson, 262 So.2d 661 (Fla.1972); Booth v. Board of Public Instruction, 67 So.2d 690 (Fla.1953). In essence the appellant is arguing that his case was in the same procedural posture as a motion for summary judgment in a civil case. In a sense the appellant is correct.

In order for a court to issue a writ of mandamus, a petitioner "must 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 legal remedies available to him." Hatten v. State, 561 So.2d 562, 563 (Fla.1990). When a petitioner files a petition for mandamus, the court has the initial task of assessing the legal sufficiency of the allegations. If the court finds the allegations insufficient, it will deny the petition, see, e.g., Gibson v. Florida Parole & Probation Comm'n, 450 So.2d 553 (Fla. 1st DCA 1984), or dismiss those claims that are factually insufficient, see, e.g., Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA1987). However, if the petition is facially sufficient, the court must issue an alternative writ, i.e., an order directed to the respondent to show cause why the requested relief should not be granted. Conner v. Mid-Florida Growers, Inc., 541 So.2d 1252, 1256 (Fla. 2d DCA1989); Fla.R.Civ.Pro. 1.630(d).

Once a show cause order has issued, it becomes in all respects the complaint and subject to the same rules of pleading as are any other complaints. West Palm Beach v. Knuutila, 183 So.2d 881 (Fla. 4th DCA1966); Fla.R.Civ.Pro. 1.630(e). It is then up to the respondent to admit or deny the factual allegations upon which relief is based, and to present any and all affirmative defenses. All facts alleged in the order to show cause, which generally incorporates by reference the original petition, that are not specifically denied are admitted to be true. Arnold v. State ex rel. Mallison, 147 Fla. 324, 2 So.2d 874 (1941). If the respondent raises material issues of fact, a trial to resolve such disputes is appropriate. Bal Harbour Village v. State ex rel. Giblin, 299 So.2d 611, 615 (Fla. 3d DCA1974), cert. denied, 311 So.2d 670 (Fla.1975). However, the burden is on the respondent for coming "forward with exact facts upon which it refused to perform the act required by the alternative writ." Id. If the respondent does not meet this burden in the return, then no trial is necessary and the court can decide the issues based upon the sufficiency of the legal issues raised. Id.

In this case, the trial court must have found the petition legally sufficient since it issued a show cause order. Contrary to what its brief on appeal suggests, in its return, the department did not contest the factual allegations of the show cause order, which incorporated by reference the petition. Rather, it only argued that no clear legal right to call witnesses exists under the case law and regulations. Because the department did not contend that the appellant had not in fact requested to call witnesses, appellant's allegations that he did request to call witnesses are admitted. Since that fact was not put in issue by the department, the trial court should not have required the appellant to submit evidence proving that he did request to call witnesses.

The trial judge was probably attempting to follow Adams v. Wainwright, 512 So.2d 1077 (Fla. 1st DCA1987). In Adams, we concluded that the trial court properly dismissed one claim that the appellant was not allowed to call witnesses because the appellant did not allege that he had tried to call any witnesses. However, the court remanded for an evidentiary hearing on other claims that were both properly alleged in the petition and documented by affidavits setting out specific facts of the alleged violations. The trial judge below may have read Adams as requiring documentation of the allegation that witnesses were in fact requested prior to granting an evidentiary hearing on the petition. However, Adams does not state that documentation is a necessary prerequisite to an evidentiary hearing. Rather, the court simply noted the fact that Adams had documented his allegations. In fact, the case that Adams relies upon in remanding for an evidentiary hearing does not mention or imply that documentation of allegations is necessary. See Moore v. Wainwright, 366 So.2d 183 (Fla. 1st DCA1979). Indeed, in Moore, the court specifically found that an evidentiary hearing was warranted solely because "[t]he petition states specific allegations regarding the disciplinary proceedings which, if true, would establish that the Department of Corrections failed to comply with its own rules and with the procedural requirements of Wolff...