Johnson v. Cert
| Decision Date | 13 April 2017 |
| Docket Number | Case No. 3:15-cv-1487-J-39JBT |
| Parties | FRANK JOHNSON, Plaintiff, v. KENNETH CERT, et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Plaintiff initiated this case by filing a Complaint (Doc. 1). He is proceeding on an Amended Complaint (Doc. 5). He raises a due process claim pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution. He names as Defendants Kenneth Cert, an Investigation Sergeant, and Patricia Rodgers, a Senior Classification Officer.
Plaintiff is an inmate confined in the Florida Department of Corrections at Lake Correctional Institution. He provides the following Statement of Claim:
The actions of defendants Cert, and Rodgers deprived the plaintiff of his right to an adequate investigation in a disciplinary hearing, the right to present documentary evidence in his defense, and the right to and [sic] impartial decision-maker, in violation of the plaintiff's procedural due process rights under the Fourteenth Amendment of the United States Constitution.
Plaintiff alleges that on February 23, 2014, at South Bay Correctional Institution, Correctional Officer Dormeus claimed that Plaintiff assaulted him. Id. at 4-5. Plaintiff was placed in administrative confinement pending an investigation. Id. at 5. On March 5, 2014, Defendant Cert served Plaintiff with a disciplinary report, charging him with assault or attempted assault of a correctional officer. Id. Plaintiff requested an administrative security videotape as evidence, identifying three security cameras on form DC6-151. Id.
On March 11, 2014, Plaintiff received a disciplinary hearing before Defendant Rodgers and Lieutenant Cole. Id. After the charges were read, Plaintiff pled not guilty and made a statement denying the charge. Id. Plaintiff asked Defendant Rodgers to produce the security videotape findings. Id.
Plaintiff claims the DC6-2028 document concerning the disposition of videotape evidence is incomplete and that Defendant Cert failed in his investigative duties requiring he conduct an adequate investigation, including a thorough review of the requested videotape and the making of findings on the form DC6-2028 as to why the videotape did or did not support the defense. Id. at 6. Plaintiff also claims that Defendant Rodgers did not provide Plaintiff with a valid reason for relying on an incomplete DC6-2028 documentary evidence form, and she failed to postpone the proceeding in order to require further investigation. Id. Plaintiff asserts that Defendant Rodgers simply relied on the officer's statement contained in the disciplinary report. Id.
Plaintiff alleges that the disciplinary team based its decision of guilt on the correctional officer's statement and evidence presented at the hearing. Id. He also alleges that Defendant Rodgers provided a false statement that the team relied on the identified tape or the capabilities of the particular taping equipment, and found that the tape requested does not provide evidence to support Plaintiff's defense. Id. Plaintiff contends that the requested videotape was never reviewed by Defendants Cert or Rodgers, the investigation was incomplete, and the only evidence presented at the hearing was the disciplinary report. Id.
Plaintiff states that he was found guilty and sentenced to 60 days of disciplinary confinement. Id. at 7. Thereafter, he was sent to unit level one, the most restrictive special housing level, in which he was denied certain privileges regularly received in the general prison population. Id. He was confined to a cell for approximately 22 hours per day, being allowed to exercise three times per week, for two hours each exercise period, and permitted to shower three times per week. Id. He compares this to general population with daily outdoor exercise and social interaction and showers seven times per week. Id. He also complains that Special Housing Unit (SHU) inmates have restricted visitation, library, telephone, and canteen privileges. Id. He states he had limited hygiene and cleaning products, and other activities were restricted, including school, religious services, group meals, and canteen privileges. Id. Plaintiff was in the SHU for 539 days. Id. As relief, Plaintiff seeks compensatory damages, punitive damages, and any additional relief the Court deems just, proper, and equitable. Id. at 8.
This case has been pending since December 16, 2015. Plaintiff is not proceeding as a pauper. The Court directed that all Defendants be served on or before March 15, 2016, and proof of service and documents reflecting proper, completed service be provided to the Court by March 22, 2016. Order (Doc. 4). Plaintiff was warned that failure to provide proof of proper service for a particular Defendant or failure to show good cause for the failure to effect service would result in the dismissal of that Defendant from this action without further notice.1 Id. Plaintiff failed to perfect service of process upon Defendant Cert.
The record shows that the process server returned unexecuted the service documents for Defendant Cert. (Docs. 7 & 8). Although Plaintiff stated that he would remain diligent and attempt to locate Defendant Cert (Doc. 8), the record demonstrates that as of the date of this order, Plaintiff has not provided proof of proper service for Defendant Cert, nor has Plaintiff shown good cause for the failure to effect service upon him. Therefore, Defendant Cert will be dismissed without prejudice from this action.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Id. (citing Twombly, 550 U.S. at 555).
Before the Court is Defendant Rodgers' Amended Motion to Dismiss (Motion) (Doc. 29). Defendant Rodgers seeks dismissal of the claims against her as barred by the statute of limitations and unexhausted. She also claims that Plaintiff is not entitled to compensatory and punitive damages. Finally, she asserts that Plaintiff does not have a liberty interest sufficient to trigger due process protection because he is serving a life sentence, and he has failed to demonstrate a significant or atypical hardship necessary to invoke the Due Process Clause.
Defendant Rodgers argues that the applicable statute of limitations is the one-year limitation period found in Florida Statute section 95.11(5)(g), which states in pertinent part: "[A]n action brought by or on behalf of a prisoner[2] . . . relating to the conditions of the prisoner's confinement" must be brought within one year. Plaintiff filed a response in opposition to the Motion, arguing that the applicable statute of limitations is the four-year limitations period found in Florida Statute section 768.28(14). See Plaintiff's Response to Defendant Rodgers' Amended Motion to Dismiss (Doc. 30).
Defendant Rodgers, relying on Green v. Cottrell, 204 So.3d 22 (Fla. 2016), requests that this Court depart from the traditional application of the four-year statute of limitations because Plaintiff has not claimed a physical injury. In Green, the plaintiff raised claims under Florida law of negligence and intentional infliction of emotional distress, but he also raised federal law claims against the jail employees which the circuit court found were governed by the Prison Litigation Reform Act and were unexhausted. The Supreme Court of Florida addressed the statute of limitations issue with regard to the state law claims, not the federal claims.3
The Supreme Court of Florida stated that "unless the state law claims raised by Green fall under section 95.11(5)(g), the four-year statute of limitations in section 768.28(14) is applicable to his action." Id. at 27. The Green case, on which Defendant Rodgers heavily relies, applied the four-year limitations period to state law claims "where . . . a prisoner files an action alleging that he suffered physical injury due to the negligent or wrongful acts or omissions of the employees of a government entity[;]" however, the court found if the prisoner alleges mental or emotional injury alone, the one-year limitations period is applicable to the state-law claim. Id. at 29. Thus, Green does not mandate that this Court apply the one-year limitation period to Plaintiff's federal claims.4
"Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations period governing personal injury actions in the state where the action is brought." Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014) (citation omitted), cert. denied, 134 S.Ct. 2838 (2014); see Owens v. Okure, 488 U.S. 235, 249-50 (1989) (). In Florida, "[t]he applicable statute of limitations in a § 1983 lawsuit is the four-year Florida state statute of limitations for personal injuries." Omar v. Lindsey, 334 F.3d 1246, 1251 (11th Cir. 2003) (per curiam) (citations omitted); see Van Poyck v. McCollum, 646 F.3d 865, 867 (11th Cir. 2011) (...
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