Mathews v. Crews, Case No. 4:12cv279-RH/CAS

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
Writing for the CourtCHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
Docket NumberCase No. 4:12cv279-RH/CAS
PartiesCECIL BRADLEY MATHEWS, Petitioner, v. MICHAEL CREWS, Respondent.
Decision Date04 November 2014

CECIL BRADLEY MATHEWS, Petitioner,
v.
MICHAEL CREWS, Respondent.

Case No. 4:12cv279-RH/CAS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

November 4, 2014


REPORT AND RECOMMENDATION TO DENY § 2254 PETITION

On June 3, 2012, Petitioner Cecil Bradley Mathews, proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging Disciplinary Report (DR) #430-110348. Doc. 1. Petitioner filed an amended § 2254 petition on July 17, 2012, and a second amended § 2254 petition on October 8, 2012. Docs. 6 and 11. On March 13, 2013, Respondent filed an answer, with exhibits. Doc. 20. On April 3, 2013, Petitioner filed a reply. Doc. 24.

The undersigned magistrate judge entered a Report and Recommendation on July 11, 2014, recommending the Court dismiss the petition as moot because the challenged DR resulted in no loss of gain time and imposed only fifteen (15) days of disciplinary confinement, which Petitioner had already served; nothing indicated the

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disciplinary proceeding had affected the length of Petitioner's sentence. Doc. 29. Petitioner filed no objections. In an order entered September 23, 2014, the Court remanded the matter to the undersigned, finding the petition was not moot because the disciplinary finding rendered Petitioner ineligible for gain time he may otherwise have received. Doc. 30 at 3-4.

The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). The pleadings and attachments before the Court show that Petitioner is not entitled to relief and, therefore, the petition should be denied. See Rule 4, R. Gov. § 2254 Cases in U.S. Dist. Cts (authorizing dismissal "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief" in federal court).

Procedural History

Petitioner is an inmate of the Florida Department of Corrections, currently incarcerated at the NWFRC Annex in Chipley, Florida. Doc. 33. On March 9, 2011, in DR #430-110348, while he was incarcerated at Martin Correctional Institution, Petitioner was charged with spoken, written, or gestured threats, in violation of Florida Administrative Code Rule 33-601.314. Doc. 20 Ex. B. Specifically, the DR states in pertinent part:

ON MARCH 09, 2011 AT APPROXIMATELY 4:00PM, I CAPTAIN A. SCARPATI, WHILE ASSIGNED AS THE THIRD SHIFT O.I.C., WAS HANDED A HOMEMADE WITNESS STATEMENT WRITTEN BY INMATE MATHEWS, CECIL DC #128073 (B-3212L). IN THIS WITNESS

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STATEMENT INMATE MATHEWS DCAKESEVERAL [sic] THREATS AGAINST INMATE FREEMAN, LEON DC#W26478 (B-3212U). HE STATES THAT INMATE FREEMAN IS CONSTANTLY YELLING OUT OF HIS DOOR TO INMATE RIVERS, JOSEPH DC#106523 (B-3202L). HE STATES THAT IF INMATE FREEMAN IS NOT MOVED HE IS GOING TO HURT HIM. ATTACHED IS THE SIGNED HOMEMADE WITNESSED STATEMENT BY INMATE MATHEWS. THIS PLACES INMATE MATHEWS IN VIOLATION OF (1-3) SPOKEN, WRITTEN, OR GESTURED THREATS.

Id. at 2. The witness statement prepared by Petitioner was attached to the DR. Id. at 3. On March 11, 2011, Petitioner received notice of the charge, and an investigation began that same day. Id. at 2-3. Witnesses were interviewed including Captain Scarpati who stated, "I was given a homemade witness statement written and signed by Inmate Mathews. In this witness statement he makes threats against Inmate Freeman." Id. at 5. Inmate Rivers gave no written statement. Id. at 6. Inmate Freeman stated, "I never had any problems with Mathews." Id. at 7.

Inmate Mathews stated the charge was not read upon delivery of the DR and, therefore, the DR should be dismissed because of the procedural due process violation. Id. at 4, 8. Mathews also stated that if Inmate Freeman "said he never felt threatened," then "[d]enial of witnesses is a Due Process violation warranting dismissal." Id. at 4; see id. at 8. Mathews further stated:

I also allege this witness statement was in compliance with the rules which does not allow a D.R. to be written. Captain Scarpatti cannot issue a D.R. for a protected/privileged communication. I allege its only retaliatory for grievance number 1107-430-127. (shown to hearing team but kept) In this approved grievance it specifically says Capt Scarpatti was interviewed about my allegation of current D.R. being retaliatory. Retaliation for filing grievances violates my 1st Amendment, what else can

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this be? Chapter 33 clearly states an inmate initiating a witness statement must give clear precise facts as to who, what, where, what was said, who said it, what the fear is. Worse things are written everyday in witness statements, their purpose is to be honest and straightforward so a proper assessment can be made. To punish an inmate for engaging in this system of seeking aid for certain situations would jeopardize the safety of other inmates in the future and undermines the confidentiality of the witness statement. Thus an act of reprisal is given.

Id. at 4; see id. at 8. Mathews offered mitigating factors, including "(1) He would not be quiet, he argues still today all night and all thru the day, (2) I never verbally threatened or made him feel threatened, (3) I was being teased about sexual assault, (4) Freeman is an open homosexual, he used a lot of sexually explicit language (5) I was scared and needed help, (6) when I asked him to calm down he would turn and say F— You papa." Id. at 11. Mathews stated, "These are mitigating circumstances that should make you understand whatever threat . . . was written was written out of fear of the threats I was receiving about sexual assault." Id. Mathews further stated:

I request if you are going to find me guilty after considering the mitigating factors that you consider alternate discipline measures as required by 33-601.308. Within that provision it states . . . that disciplinary confinement shall be utilized only as a last resort. I'm already in D/C but further time denies me due process. Other disciplinary measures ae mandatory to be considered. I assure you this is an isolated incident that will not happen again and does not warrant a disciplinary report. If a D.R. is allowed to stand please consider a probationary period so I can prove it was an isolated act done out of severe mental disorder. I also just recently started a psychotropic drug called Wellbutrin that's missing with me a little bit. Also, please take gain time if you decide to find me guilty. I know that sounds strange but please do.

Id. at 12. Mathews indicated that he did not have any witnesses or evidence to present. Id. at 9-10.

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A hearing took place on March 14, 2011. Id. at 14. The Disciplinary Hearing Worksheet indicates that Matthews was present at the hearing; staff assistance was offered and declined; the charge was read, understanding was indicated, and the procedures and penalties explained. Id. Mathews entered a no contest plea and was found guilty based on the plea. Id. The action taken was "DC not to exceed 15 days" to run "concurrent." Id. No loss of gain time is indicated. Id.

Petitioner Mathews then proceeded through the administrative grievance process. See Doc. 20 Ex. C at 1-9. Respondent indicates Mathews exhausted his administrative remedies on May 5, 2011. Id.; Doc. 20 at 4.

On June 1, 2011, Mathews filed a petition for writ of mandamus in the Second Judicial Circuit, Leon County, Florida. Doc. 20 Ex. D at 4-10. Respondent filed a response and requested the petition be denied. Id. at 14-21. Respondent argued Mathews was not entitled to the requested relief (overturning his DR) because he had pled no contest. Id. at 17. Mathews filed a reply. Id. at 22-27. By order dated September 15, 2011, the state trial court denied the petition. Id. at 28-32.

In particular, in denying the mandamus petition, the court found that "[a]s a result of the disciplinary team's finding, Petitioner was placed in disciplinary confinement for 15 days; however, no gain time was revoked." Id. at 28; see id. at 29 (noting again that no gain time was revoked). The court found that because "no gain time was revoked, Petitioner is not entitled to the due process protections articulated in Wolff" v. McDonnell, 418 U.S. 539 (1974). Id. at 29. The court further found that "[d]espite the fact that Petitioner was not entitled to the due process protections articulated in Wolff,

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the record reflects that Petitioner was awarded all of the Wolff protections," including advance written notice of the charge, an opportunity to call witnesses and present...

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