Pesci v. Budz

• Decision Date: 23 September 2013
• Docket Number: No. 12–11144.,12–11144.
• Citation: 730 F.3d 1291
• Parties: James R. PESCI, Plaintiff–Appellant, v. Tim BUDZ, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

730 F.3d 1291

James R. PESCI, Plaintiff–Appellant,

v.Tim BUDZ, Defendant–Appellee.

No. 12–11144.

United States Court of Appeals, Eleventh Circuit.

Sept. 23, 2013.

Carlo A. Pedrioli, Barry University, School of Law, Orlando, FL, for Plaintiff–Appellant.

Donald A. Chinquina, Brett M. Waronicki, Wiederhold Moses Kummerlen & Waronicki, PA, West Palm Beach, FL, for Defendant–Appellee.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:10–cv–00428–CEH–DNF.

Before BARKETT and MARCUS, Circuit Judges, and HUCK,^* District Judge.

MARCUS, Circuit Judge:

Appellant James Pesci, a civil detainee at the Florida Civil Commitment Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq., the “Involuntary Civil Commitment of Sexually Violent Predators Act,” commonly referred to as the “Jimmy Ryce Act.” The Act provides for involuntary civil commitment of a sex offender who is determined to be a sexually violent predator for the purposes of safeguarding the general public and rehabilitating the detainee. Pesci and some 600 other residents of the FCCC are not prisoners; rather they are civil detainees who have already served their terms of incarceration.

For some years, Pesci has published a newsletter called “Duck Soup” at the FCCC that is highly critical of the center, its policies, and its personnel. In April 2009, Timothy Budz, the facility director at the center, promulgated a policy barring all residents from copying Duck Soup in order to limit its circulation, on the rationale that Duck Soup had disrupted order and discipline at the FCCC as well as had a powerful adverse effect on the facility's capacity to rehabilitate its civil detainees. Pro se, Pesci filed a § 1983 civil rights action against Budz in the United States District Court for the Middle District of Florida. He claimed the policy violated his expressive freedoms under the First and Fourteenth Amendments and therefore sought both monetary and injunctive relief. In November 2010, after the litigation had begun but notably before the district court entered summary judgment for Budz, the facility director adopted a new, different, and stricter policy treating the newsletter as “contraband” and banning outright its possession or distribution. In February 2012, the district court granted final summary judgment in favor of the facility director, but only considered Pesci's First Amendment claim as to the April 2009 policy, offering no view about the replacement policy banning Duck Soup. Pesci timely appealed, initially pro se, but now with the assistance of appointed counsel.

After thorough review, we vacate and remand for further proceedings consistent with this opinion. In view of the peculiar posture of this case, we believe the wiser course would be for the district court to consider the constitutionality of the November 2010 policy banning Duck Soup along with the April 2009 policy. The district court never had occasion to review the constitutionality of this more restrictive policy—a policy that mooted out any possibility of injunctive relief based on the April 2009 policy. Moreover, the record is limited and the plaintiff was uncounseled throughout the proceedings in the district court. Accordingly, we remand the entire matter back to the district court to engage in the necessarily fact-intensive review of the facility director's policies in the first instance. This course will avoid piecemeal adjudication of the constitutionality of the two policies.

I.

The complaint alleges that James Pesci has for “some years” published a newsletter called “Duck Soup” in both hard copy and online formats. The newsletter was available electronically for downloading and for printing and copying in the Florida Civil Commitment Center's computer lab. The record contains three issues of Duck Soup from July, August, and September of 2009. The newsletter primarily reported on FCCC matters and was often bitterly critical of the FCCC's staff, its management and the state contractor, GEO Group, Inc., that runs the facility. Thus, for example, in one issue Pesci described the Florida Department of Children and Families and its contractor GEO as a “white collared [sic], criminal enterprise” and encouraged FCCC staff to file lawsuits against GEO. Perhaps even more importantly, Pesci attacked the foundation and efficacy of the FCCC's treatment programs. He also said that FCCC residents should hold “collective protests” and “demonstrations” and that they were “coward[s]” for not doing so. In addition, he launched a series of personal attacks on several of FCCC's staff by name. He stated that a particular lieutenant liked watching residents shower; he accused the facility director Budz of using illegal drugs; and he claimed that the FCCC's medical staff caused a resident's death. Pesci was fully aware of the newsletter's inflammatory nature, writing in one month's newsletter that he had “every intention of hitting a lot of nerves in this month's edition.” He also acknowledged the palpable tension that arose from some of the content in Duck Soup, describing in one issue the hostility that he faced from some staff in the FCCC's medical department after publishing an earlier edition of the newsletter that “exposed” the department.

In April 2009, the facility director of the Florida Civil Commitment Center, Timothy Budz, promulgated a policy (the first policy) preventing residents from printing or copying Duck Soup in the FCCC's computer lab. ¹ According to Budz, the policy was designed to limit dissemination of the newsletter, which he claimed had generated substantial hostility between the detainees and the FCCC's staff, undermined staff authority, and disrupted detainee treatment.

In July 2010, Pesci, acting pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983 against Budz, alleging that the first policy (the April 2009 policy) violated his First and Fourteenth Amendment rights. He sought both monetary and injunctive relief. In November 2010, some months after the litigation had begun, Budz replaced the April 2009 policy with a second policy banning outright the possession or distribution of Duck Soup, citing the increasingly inflammatory nature of the newsletter and its continuing detrimental effect on order and treatment at the facility. In April 2011, Budz moved for summary judgment. Along with the motion, Budz filed his own affidavit and the affidavit of Dr. Robin Wilson, clinical director of the FCCC. In his affidavit, Budz explained that staff members and residents named in Duck Soup had complained to him about the newsletter, offering that Duck Soup had caused real tension between the residents and the staff and among the facility's employees as well. According to Budz's version, the staff could still view Duck Soup online after the promulgation of the April 2009 policy and the residents could still make copies of the newsletter if they used their own paper instead of the institution's paper. Budz averred that after promulgating the first policy in April 2009, Duck Soup became “increasingly inflammatory, degrading and demeaning toward FCCC staff and administration,” and that it “continued to raise animosity, hostility, and anger among staff and residents by insulting certain staff and placing them in a false light amongst their peers and residents.” For these reasons, in November 2010, Budz adopted the second policy characterizing Duck Soup as “contraband” and forbidding its possession or distribution.

Dr. Wilson's affidavit, in turn, detailed the effects of Duck Soup on the treatment of the center's detainees. He averred that Pesci used Duck Soup “to make reports on the GEO staff and other residents and would specifically name individuals.” Wilson observed that the newsletter created considerable tension between residents and the treatment staff during the period that Pesci was allowed to publish the newsletter. He offered that the newsletter caused the residents to lose confidence in the treatment staff and in the treatment itself, leading some residents to believe that the treatment staff were incompetent, the treatment program itself was a sham, and that they would never reach their ultimate goal of release. Dr. Wilson also observed that the residents who pursued treatment were often unwilling to share their thoughts or information about themselves during group therapy sessions because they feared that what they said would wind up in Pesci's newsletter. He opined that the April 2009 policy limiting circulation of Duck Soup did not improve the situation, but, notably, the effectiveness of the treatment program returned to normal after Budz banned the newsletter entirely on November 18, 2010.

Opposing the summary judgment motion pro se, Pesci offered two sets of largely identical affidavits from a total of eleven fellow detainees. In the first set, eight detainees said the following:

• Duck Soup has not caused me to be hostile to any person, staff or resident.

• I have never been uncomfortable with the sharing of information with the Plaintiff James Pesci, and have been in group activity with Pesci.

• I have never known any other residents to fear their treatment issues being published in Duck Soup.

• The only parties I have ever heard complaint [sic] of Duck Soup were staff members employed at FCCC.

In the second set, three attested:

• While it may be true that the resident population is in a state of agitation it has nothing to do with Duck Soup, rather it is the prison like conditions of confinement that The Geo Group, Inc. is imposing on its mental health patients.

• I am in treatment and as such I have never witnessed any impairment of the treatment process at the Florida Civil Commitment Center as a result [of] the publication of Duck Soup.

• Per Tim Budz's order no resident is allowed to print or copy Duck Soup in the facility computer lab. This standing order has...