McCurry v. Moore, 4:01cv439-SPM.

• Decision Date: 21 November 2002
• Docket Number: No. 4:01cv439-SPM.,4:01cv439-SPM.
• Parties: James S. MCCURRY, Plaintiff, v. Michael W. MOORE, D.L. Franklin, and April Bass, Defendants.
• Court: U.S. District Court — Northern District of Florida

242 F.Supp.2d 1167

James S. MCCURRY, Plaintiff, v. Michael W. MOORE, D.L. Franklin, and April Bass, Defendants.

No. 4:01cv439-SPM.

United States District Court, N.D. Florida, Tallahassee Division.

November 21, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James S. McCurry, Hickory, NC, Pro se.

Joy A. Stubbs, Attorney General of Florida, Tallahassee, FL, for Defendants.

ORDER

MICKLE, District Judge.

This cause comes on for consideration upon the magistrate judge's report and recommendation dated October 25, 2002. The parties have been furnished a copy of the second report and recommendation and afforded an opportunity to file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), I have made a de novo determination of any portions to which an objection has been made.

Having considered the report and recommendation and all objections thereto timely filed, I have determined that the report and recommendation should be adopted.

Accordingly, it is now ORDERED as follows:

1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.

2. That Defendants' summary judgment motion, doc. 13, is GRANTED in part, that summary judgment is GRANTED in favor of Defendant Moore on all claims, in favor of Defendant Franklin as to the failure to train and supervise claim, any damage claim in his official capacity, and any damage claim in his individual capacity arising prior to March 29, 2000, in favor of Defendant Bass as to any damage claim in her individual capacity arising prior to March 12, 2000, and that in all other respects, the summary judgment motion is DENIED and this case REMANDED to the magistrate judge for further proceedings.

REPORT AND RECOMMENDATION

SHERRILL, United States Magistrate Judge.

Defendants' special report, doc. 16, was construed as a motion for summary judgment and Plaintiff was advised of his burden in opposing the motion. Doc. 18. Plaintiff filed a response, doc. 20, and the motion is now ready for a ruling.

I. Allegations of the complaint

Plaintiff, proceeding pro se in this case, is a former inmate of the Florida Department of Corrections. Doc. 9. Plaintiff filed a civil rights complaint under 42 U.S.C. § 1983, doc. 1, alleging that he was held in prison beyond the expiration of his sentence. Plaintiff contends that Defendants Bass and Franklin erroneously calculated his gaintime, failed to utilize the 1993 sentencing guidelines in establishing his tentative release date, and despite being advised of these mistakes on several occasions, willfully and knowingly continued to "misapply the information" which resulted in Plaintiffs continued and unlawful confinement. Plaintiff was granted an emergency release on April 19, 2000, but contends he was entitled to be released on or about November 14, 1999. Plaintiff claims that Defendants Franklin and Moore failed to adequately train or supervise Defendant Bass, and that Defendant Moore failed to "adequately institute policy and procedures to provide for proper administration of gain-time awards under Florida law."

Plaintiff contends that all Defendants violated his rights under the Eighth Amendment and inflicted cruel and unusual punishment by continuing to incarcerate him beyond the expiration of his sentence. He further asserts that Defendants Bass and Franklin denied him procedural due process of law. Plaintiff seeks nominal, compensatory, and punitive damages against Defendants in both their official and individual capacities.

II. Legal standards governing a motion for summary judgment

On a motion for summary judgment Defendants initially have the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). If they do so, the burden shifts to Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. Id. Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a "scintilla" of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). However, "the evidence and inferences drawn from the evidence are viewed in the light most favorable to the nonmoving party, and all reasonable doubts are resolved in his favor." WSB-TV v. Lee, 842 F.2d 1266, 1270 (11th Cir.1988).

"Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir.1997), cert. denied 522 U.S. 1126, 118 S.Ct. 1074, 140 L.Ed.2d 133 (1998), quoting Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c), (e)). The nonmoving party need not produce evidence in a form that would be admissible as Rule 56(e) permits opposition to a summary judgment motion by any of the kinds of evidentiary materials listed in Rule 56(c). Owen v. Wille, 117 F.3d at 1236; Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

III. The relevant Rule 56(e) evidence

It is undisputed that a mistake was made in calculating Plaintiffs gaintime and release date. The mistake occurred relating to Count VII of the information. Originally Defendants thought that this offense occurred on March 29, 1994. Since that date was after January 1, 1994, and since the gaintime law changed significantly on that date, Defendants concluded that no gaintime could be awarded for the prison sentence for this offense. It was then learned that the offense alleged in Count VII commenced before January 1, 1994, and ended on March 29, 1994, and when this was discovered, Plaintiff was immediately released.

More specifically, Plaintiff entered the custody of the Department of Corrections on December 11, 1997, doc. 16, ex. A, Phelps affidavit, having been adjudicated guilty of five third degree felonies on December 1, 1997. Doc. 16, ex. B, pp. 7-8 (the pages of the exhibits to the summary judgment motion have been numbered by the court in the bottom right-hand corner). The offenses for which Plaintiff was convicted were listed on the original information dated November 6, 1996, as: (1) count I—grand theft auto; (2) count II—grand theft auto; (3) count III—grand theft auto; (4) count VII—possession of motor vehicle with altered vehicle identification number; and (5) count VIII—possession of counterfeit motor vehicle title. Doc. 16, ex. A, ex. 1, pp. p. 3. Sentence was deferred until December 3, 1997, doc. 16, ex. A, ex. 1, p. 7, and on that day, Plaintiff was sentenced to five years in prison on each count, each count to run concurrent with the other counts. Doc. 16, ex. A, ex. 1, pp. 9-24. Plaintiff was also given 4 days credit for time served prior to imposition of sentence. Id.

Plaintiff was convicted after a trial. The offenses of conviction occurred between February 18, 1993, and April 13, 1994. Doc. 16, ex. A, ex. 1, p. 25 (sentencing scoresheet). The original information lists the date of the offenses as: (1) count I— February 18, 1993, "continuing to on or about" April 13, 1994; (2) count II—April 1, 1993, "continuing to on or about" April 13, 1994; (3) count III—October 1, 1993, "continuing to on or about" March 29, 1994; (4) count VII—March 29, 199b; and (5) count VIII—April 1, 1993, "continuing to on or about" April 13, 1993. Doc. 16, ex. A, ex. 1, pp. 3-5; ex. B, ex. 2, pp. 3-5.

At some point unknown on this record, an Amended Information was filed which altered the date for count VII, listing it as occurring between October 1, 1993, "continuing to on or about" March 29, 1994. Doc. 16, ex. A, ex. 4, p. 4. The copy of the Amended Information presented as evidence in this record is not signed. Id., at p. 5.

Plaintiffs "primary offense" was listed on the scoresheet as the three counts of grand theft auto. The two counts for possession of the altered VIN and possession of a counterfeit title were listed as "additional offenses at conviction." Id. The sentencing transcript reveals that there was a debate between the lawyers as to whether the 1993 sentencing guidelines or the 1994 sentencing guidelines controlled Plaintiffs case. Doc. 16, ex. A, ex. 2, pp. 10-14. The sentencing court accepted the State's argument that the 1993 guidelines controlled because the Information alleged that the beginning date of Count I was February 18,1993. Id., at p. 14.

On March 12, 2000, Plaintiff submitted an informal grievance to Defendant Bass, Plaintiffs classification officer. Doc. 16, ex. B, ex. 1, p. 2. Plaintiff complained that he had been held "long past" his release date and, while citing to specific lines of the transcript, stated that the transcript revealed he "was sentenced under the 1993 guidelines on December 3, 1997 to (5) years." Id. Plaintiff asserted that the Department had not "deduct[ed] one-third off [his] sentence as" it should and complained that he should have been released on or about August 12, 1999. Id. This grievance did not mention an amended information and did not argue that the offense conduct alleged in Count VII commenced before January 1,1994.

Defendant Bass received Plaintiffs informal grievance and avers in her affidavit that "no transcript pages were attached." Doc. 16, ex. B, p. 1. Defendant Bass also avers that she "reviewed the sentencing documents contained in [Plaintiffs] record." Doc. 16, ex. B, p. 1. Defendant Bass determined that one of Plaintiffs offenses (that is, Count VII) "had an offense date of March 29, 1994." Id. Because an offense committed on or after ...