Nicarry v. Eslinger

• Decision Date: 12 September 2008
• Docket Number: No. 5D07-4165.,5D07-4165.
• Citation: 990 So.2d 661
• Parties: Neal E. NICARRY, Appellant, v. Donald ESLINGER, Sheriff, Seminole County, Appellee.
• Court: Florida District Court of Appeals

990 So.2d 661

Neal E. NICARRY, Appellant, v. Donald ESLINGER, Sheriff, Seminole County, Appellee.

No. 5D07-4165.

District Court of Appeal of Florida, Fifth District.

September 12, 2008.

Randy E. Schimmelpfennig, of Morgan & Morgan, P.A., Orlando, for Appellant.

Thomas W. Poulton and Jeffrey K. Grant of DeBevoise & Poulton, P.A., Winter Park, for Appellee.

HUDSON, M., Associate Judge.

Neal E. Nicarry appeals the dismissal of his second amended complaint against Donald Eslinger, Sheriff of Seminole County, Florida, for negligence. The order of dismissal concluded that his complaint was barred by the statute of limitations found in section 95.11(5)(g), Florida Statutes (2004). We affirm.

Nicarry was incarcerated at the John E. Polk Correctional Facility in Sanford, Florida, where he was allegedly exposed to toxic fumes as a result of welding being done on the property. Nicarry alleges that Sheriff Eslinger, the public official in charge of operating the jail, breached his duty to Nicarry by failing to properly ventilate the room where the welding took place. As a direct and proximate cause of Sheriff Eslinger's negligence, Nicarry claims that he suffered bodily injury.

Nicarry filed his original complaint twenty-one months after the incident, and later amended that complaint. Sheriff Eslinger filed motions to dismiss both the original and amended complaints¹ on the ground that they were barred by section 95.11(5)(g). The trial court concluded that Nicarry's claim was barred by the one-year statute of limitations found in that statute and dismissed the amended complaint without prejudice. After Nicarry filed a second amended complaint, which made the same allegations as the original complaint, Sheriff Eslinger filed another motion to dismiss. The trial court granted Sheriff Eslinger's motion and dismissed Nicarry's second amended complaint with prejudice on the ground that it was barred by the one-year statute of limitations found in section 95.11(5)(g). This appeal followed.

The standard of review of an order dismissing a complaint is de novo. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002). A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted only in extraordinary circumstances in which the facts pleaded in the complaint conclusively establish that the statute of limitations bars the action as a matter of law. Wishnatzki v. Coffman Constr., Inc., 884 So.2d 282, 285 (Fla. 2d DCA 2004). This Court takes the allegations of the complaint as true and views them in a light most favorable to the plaintiff. Id.

Section 95.11, Florida Statutes, outlines the statute of limitations for all causes of action except for recovery of real property. In relevant part, section 95.11 provides that an action founded on negligence must be commenced within four years of when the action accrued. § 95.11(3)(a), Fla. Stat. (2004). The statute also specifies that except for actions relating to disciplinary proceedings, a complaint brought by or on behalf of a prisoner relating to the "conditions of the prisoner's confinement" must be commenced within one year of when the action accrued. § 95.11(5)(g), Fla. Stat. (2004).²

Nicarry argues that the one-year statute of limitations for all cases brought by prisoners concerning "conditions of their confinement" did not apply to his case because he was not challenging a continuous condition of his confinement. Instead, he claims that the four-year statute of limitations for negligence claims applied because he was challenging a single instance of negligence.

This is a case of first impression in Florida. The integral component of the issue on appeal is the definition of the phrase "conditions of the prisoner's confinement," as contained in section 95.11(5)(g). With no state precedent discussing the meaning of that phrase, this Court must construe the terms of the statute. "Conditions of the prisoner's confinement" is not defined in the statute itself. Therefore, this Court is to give effect to the Legislature's intent. State v. J.M., 824 So.2d 105, 109 (Fla.2002). In order to discern legislative intent, courts should look first to the plain language of the statute. Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000). Only when the statutory language is unclear or ambiguous should the courts apply rules of statutory construction and explore legislative history to determine legislative intent. Weber v. Dobbins, 616 So.2d 956, 958 (Fla. 1993). A statute is "ambiguous" when its language is subject to more than one reasonable interpretation and may permit more than one outcome. Hess v. Walton, 898 So.2d 1046, 1049 (Fla. 2d DCA 2005).

We find that there is no reasonable interpretation for the phrase "conditions of a prisoner's confinement" that would encompass only "ongoing conditions," as urged by Nicarry, especially in light of the statute's clear framework. Sections 95.11(5)(f) and (g) specifically enumerate two exceptions to the one-year statute of limitations for prisoner complaints: extraordinary writs challenging a criminal conviction and actions involving correctional disciplinary proceedings. It is not logical to find that another exception would exist when these specific circumstances were highlighted for exception in the statute. We find that section 95.11(5) encompasses the complaint filed by Nicarry, and limited the time for filing his lawsuit to one year.³

As section 95.11(5) is clear and unambiguous, we do not find the need to explore other aids to statutory construction. However, we note that cases issued by the United States Supreme Court interpreting the meaning of "conditions of confinement," albeit not in a statute of limitations context, strongly support this Court's interpretation of section 95.11(5)(g).

In McCarthy v. Bronson, 500 U.S. 136, 111 S.Ct. 1737, 114 L.Ed.2d 194 (1991), the Supreme Court considered the scope of 28 U.S.C. § 636(b)(1)(B), which authorizes the referral of prisoner petitions "challenging conditions of confinement" to magistrates without the complainant's consent. The prisoner in McCarthy challenged the referral of his complaint of a single episode of excessive force to a magistrate because he was not challenging ongoing prison conditions. The Supreme Court maintained that all prisoner petitions were to be referred to magistrates because "litigation would otherwise arise in trying to identify the precise contour of a petitioner's suggested exception for single episode cases." McCarthy, 500 U.S. at 143, 111 S.Ct. 1737. In reaching this result, the McCarthy Court relied heavily on its previous decision in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Preiser, the Court differentiated between two distinct types of petitions: petitions challenging the fact or duration of confinement and those petitions challenging the conditions of confinement. Id. at 498-99, 93 S.Ct. 1827. The Court concluded that challenges to specific instances of conduct were, in fact, challenges to conditions of confinement. Id.

The Supreme Court upheld McCarthy in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). The prisoner in Porter filed a complaint, alleging that he was harassed and beaten on one occasion. The prisoner did not file an inmate grievance as required by the Prison Litigation Reform Act, 42...