Plymel v. Moore, No. 1D99-1250.

CourtCourt of Appeal of Florida (US)
Writing for the CourtJOANOS, J.
Citation770 So.2d 242
Decision Date26 October 2000
Docket NumberNo. 1D99-1250.
PartiesCraige PLYMEL, Petitioner, v. Michael W. MOORE, et al., Respondents.

770 So.2d 242

Craige PLYMEL, Petitioner,
v.
Michael W. MOORE, et al., Respondents

No. 1D99-1250.

District Court of Appeal of Florida, First District.

October 26, 2000.


770 So.2d 244
John L. Key, Orange Park, for Petitioner

Robert A. Butterworth, Attorney General and Karen Armstrong, Assistant Attorney General, Tallahassee, for Respondents.

ON MOTION FOR REHEARING OR CLARIFICATION

JOANOS, J.

Respondents seek rehearing of the June 22, 2000, opinion in which we granted the petition of Craige Plymel for writ of certiorari and remanded with directions to grant mandamus relief. As grounds for rehearing, respondents urge that the court misapprehended the controlling point of law announced by the United States Supreme Court in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), and misapprehended or overlooked several matters of fact. In the event the motion for rehearing is denied, respondents ask that we clarify the opinion as to whether the decision turns on the nature of the liberty interest involved or on the mandatory language of the underlying Department of Corrections rule. We deny the motion for rehearing. We grant the motion for clarification, withdraw the opinion issued June 22, 2000, and substitute the following therefor.

Petitioner, Craige Plymel, is a prisoner in the custody of the Florida Department of Corrections. Respondent, Michael W. Moore, is the Secretary of the Florida Department of Corrections (DOC), and as such, has responsibility for all matters pertaining to the governance and control of prisoners in DOC custody. Petitioner has filed a petition for writ of certiorari challenging an order of the circuit court denying his petition for mandamus relief. In the petition for writ of mandamus, petitioner alleged the Florida Department of Corrections failed to adhere to its own rules with respect to the investigation and hearing conducted in connection with a prison disciplinary report charging petitioner with a violation of DOC rules. We grant the petition for writ of certiorari, and quash the order denying the petition for writ of mandamus.

On February 21, 1998, petitioner was charged with a violation of Florida Administrative Code (FAC) Rule 33.22-012, § 3-4, trafficking in drugs, stemming from an incident which occurred on December 9, 1997, at Baker Correctional Institution. The investigative report established that Inspector Rhoden initiated an alleged marijuana transaction involving a confidential informant/inmate and several correctional officers who had been posted in a particular area to watch petitioner and the informant.

Petitioner prevailed on his first formal grievance of the disciplinary report, because his requested witness was not interviewed at the disciplinary hearing. Prison authorities refiled the trafficking charge, and petitioner again was found guilty of drug trafficking. Petitioner appealed the second disciplinary report, alleging, among other things, that witnesses to the incident

770 So.2d 245
were not listed in the disciplinary report as required by FAC Rule 33-22.005(2). The appeal was denied at the institutional level, on the ground that the two officers named by petitioner indicated they arrived at the area after the disciplinary incident had occurred, thus had not seen the incident

Petitioner appealed the response to the Department Secretary. In the appeal, petitioner detailed the situation, listed other witnesses to the incident, stated that Inspector Rhoden told petitioner that a videotape was made of the incident, reasserted his contention that he asked that the videotape be produced at the original hearing and at the telephone hearing, and stated he was not afforded the opportunity to give a verbal or written closing statement. Petitioner's appeal to the Department Secretary was denied.

Petitioner's attorney wrote a letter to inmate Charles Davis inquiring into events surrounding the incident of December 9, 1997. In his response, Mr. Davis indicated that Officer Best, and Sergeants Gay and Farmer were present at the time of the incident. According to Mr. Davis, petitioner was not in possession of marijuana. Mr. Davis saw Officer Stephens dig the marijuana from the ground. Mr. Davis advised petitioner's attorney that Inspector Rhoden threatened Davis with an outside charge and ten more years in prison if he failed to corroborate Inspector Rhoden's version of the incident.

In his petition for writ of mandamus, petitioner alleged the witnesses referenced in the investigative report and incident report were not listed on the Disciplinary Report, as required by the rule. Petitioner further alleged the videotape evidence and eyewitness testimony of other staff and officers who witnessed the incident had not been presented, even after petitioner requested their production at the hearing. Petitioner alleged the other staff members and officers who witnessed or were involved in the incident would have proffered testimony that would exculpate him, as would evidence revealed by the videotape. In addition, petitioner alleged he was not allowed to make a closing statement.

Petitioner asserted respondents had a legal duty to note on the disciplinary report the eyewitnesses mentioned in the investigative report; respondents had a legal duty to present evidence at the hearing, including exculpatory evidence; and the denial of petitioner's grievance appeal constituted a departure from the essential requirements of the law that will cause material injury for which there is no adequate remedy by appeal. Petitioner further asserted that the DOC was required to perform the following ministerial, non-discretionary acts: note the names of persons who witness an incident; present evidence; allow an inmate to make a closing statement; and document reasons why evidence is not presented. Petitioner asserted he has the clear legal right to have those duties performed, and no other legal method to obtain performance of those duties than by mandamus.

The trial court issued an order directing the Department of Corrections to show cause why the writ of mandamus should not be granted. In its response, the DOC asserted petitioner was not entitled to the writ, because he failed to demonstrate a clear legal right on his part and a ministerial legal duty on the part of respondent. The DOC further alleged petitioner failed to exhaust administrative remedies with respect to its alleged failure to produce exculpating evidence (a videotape of the incident), and the failure to afford him an opportunity to give a verbal or written closing statement at the disciplinary hearing. The DOC asserted the statements by Inspector Rhoden and Officer Stephens that petitioner was involved in a marijuana sale, and was observed attempting to hide the marijuana by covering it with dirt, satisfies the evidentiary standard applicable to...

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