Stephenson v. Sec'y, Dep't of Corr., Case No. 2:11-cv-120-FtM-29DNF
| Decision Date | 16 December 2013 |
| Docket Number | Case No. 2:11-cv-120-FtM-29DNF |
| Parties | CLARENCE F. STEPHENSON, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Clarence F. Stephenson, a prisoner in the custody of the Secretary of the Florida Department of Corrections, initiated this action pro se by filing a "Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254" (Doc. #1, Petition) on February 25, 2011, in the United States District Court for the Middle District of Florida, Jacksonville Division.1 See Docs. #1, #4. Due to Petitioner's incarceration at Charlotte Correctional Institution at the time he initiated the action, the action was transferred to the Ft. Myers Division pursuant to 28 U.S.C. § 2241(d) and Local Rule 1.02(b)(M.D. Fla.).2 See Doc. #4. The Petition challenges Petitioner's placementon "CM-I status"3 at Columbia Correctional on May 19, 2010 and later Charlotte Correctional, due to an alleged false disciplinary report (log # 1005-201-230) for attempting to incite a riot issued on April 29, 2010, after which Petitioner was found guilty by the disciplinary hearing team. Petition at 2-3, 16. As a result of the guilty finding by the disciplinary hearing team, Petitioner was sentenced to 60 days in disciplinary confinement and lost 30 days of gain time. Id. at 3. Petitioner challenges the disciplinary report and subsequent placement on CM-1, arguing that the report and hearing violated his Sixth and Fourteenth Amendment rights, because he did not have an opportunity to review the video tape evidence and the disciplinary investigation did not begin within 24 hours of issuance of the disciplinary report in violation of Florida Admin. Code r. 33-601.305. Id. at 5. As relief, Petitioner seeks removal from CM-I status and transfer to South Bay Correctional, which is closer to his family. Id. at 8.
Respondents, the Secretary of the Florida Department of Corrections and the Florida Attorney General, filed a Response (Doc. #10, Response) and contend that the Court must dismiss this Petition because Petitioner is procedurally barred from filing this action under § 2254(b)(1). Respondents assert that Petitioner has not exhausted his administrative remedies before the State courts. See generally Response at 8-14. In particular, Respondents submit that a search of the Florida court's filing systems reveal that Petitioner did not initiate any action challenging the April 24, 2010 disciplinary report by filing a petition for writ of mandamus, or the subsequent CM-1 determination by filing a petition for writ of habeas corpus. Id. at 9-10. As of the date on this Order, Petitioner has not filed a Reply. The Court granted Petitioner's motion for an enlargement of time to file a Reply, but Petitioner did not and his time to do so has expired. See generally docket. Thus, this matter is ripe for review without the benefit of a Reply from Petitioner.
On April 29, 2010, Petitioner was issued a disciplinary report for inciting or attempting to incite a riot by Sergeant Drawdy. Drawdy stated:
At approximately 1355 hours on April 29, 2010, while assigned as Columbia C.I. Annex, inside grounds supervisor, I was assisting with the supervision of inmates returning to their dormitories following a use of force on S dormitory recreation yard. While on the staging area between T and U dormitories I observed and heard inmate Ste[ph]enson, Clarence DC# 185325 stand up and loudly state "Fuck this shit, I'm going off, ya'll are a bunch of cowards, theycan't do this shit to us, ya'll can't let them do this shit!" I immediately ordered inmate Stephenson to submit to handcuffing, to which he complied. Handcuffs were applied and double locked by myself. Inmate Stephenson is in violation of F.A.C. 33-601-314 (2-2) Inciting or attempting to incite riots, strikes, mutinous acts, or disturbances-conveying any inflammatory, riotous, or mutinous communication by word of mouth, in writing or by sign, symbol, or gesture. Inmate Stephenson who is housed in cell U3-103L was was [sic] escorted to medical for a pre-confinement physical and placed in administrative confinement pending disposition of this report. The shift OIC was notified and authorized this report.
Petition at 11. Petitioner received notification of the disciplinary report on May 3, 2010. Id. The disciplinary hearing was held on May 6, 2010. Id. at 13. Petitioner was present and plead not guilty. Id. The hearing team found Petitioner guilty and wrote as follows:
THE HEARING TEAM FINDS INMATE STEPHENSON GUILTY BASED ON ALL FACTS DERIVED FROM THE DISCIPLINARY INVESTIGATION REPORT, WITNESS STATEMENTS, AND SGT. DRAWDY'S STATEMENT IN SECTION ONE OF THE DISCIPLINARY REPORT IN WHICH HE STATES IN PART HE OBSERVED AND HEARD INMATE STEPHENSON, CLARENCE DC# 185325 STAND UP AND LOUDLY STATE "FUCK THIS SHIT, I'M GOING OFF, YA'LL ARE A BUNCH OF COWARDS, THEY CAN'T DO THIS SHIT TO US, YA'LL CAN'T LET THEM DO THIS SHIT!" BASED UPON REVIEW OF THE IDENTIFIED TAPE OR THE CAPABILITIES OF THE PARTICULAR TAPING EQUIPMENT, THE TAPE REQUESTED DOES NOT PROVIDE EVIDENCE TO SUPPORT THE INMATE'S STATEMENT. SUMMARY OF TAPE REVIEW: THERE IS NO AUDIO. ACTIVITY WAS OUT OF RANGE OF CAMERA. TYPOGRAPHICAL ERRORS ADDRESSED IN HEARING: LINE 4 FROM BOTTOM "WAS" WAS ENTERED TWICE IN ERROR.
Id. at 13. As a result of the guilty finding, Petitioner lost 30 days of gain time and was held in disciplinary confinement for 60 days. Id.
Petitioner subsequently filed inmate grievances concerning the issuance of the disciplinary report. Id. at 18-36. However, thematters grieved in formal grievance number 1005-210-230 were not properly exhausted because Petitioner's appeal of that formal grievance was returned without action due to Petitioner's non-compliance with the inmate grievance procedure. Id. at 28.
On May 5, 2010, Petitioner was referred to CM level I status. Id. at 15. Petitioner was recommended for the highest level security confinement based on his instigation or incitement of a riot or disorder. Id. In recommending CM-I status, Petitioner's classification officer stated:
INMATE STEPHENSON IS BEING RECOMMENDED FOR PLACEMENT IN CMI BASED ON HIS BEHAVIOR AND PARTICIPATION IN A DISTURBANCE THAT OCCURRED AT COLUMBIA C.I.- ANNEX ON 4/29/2010. SPECIFICALLY WHILE ANOTHER INMATE WAS INVOLVED IN A USE OF FORCE INCIDENT ON THE S-DORM RECREATION YARD, NUMEROUS INMATES RAN OVER TO THE T & U-DORM RECREATION YARD CROSS FENCE AND BEGAN SHOUTING OBSCENITIES TRYING OT INCITE OTHER INMATES. IT SHOULD BE NOTED THAT THERE WERE OVER 200 INMATES PRESENT ON THE RECREATION YARD. SEVENTEEN INMATES WERE INVOLVED IN THE DISTURBANCE AND INMATE STEPHENSON WAS IDENTIFIED AS ONE OF THE PARTICIPANTS. WHILE OFFICERS WERE LINING UP INMATES TO RETURN TO THEIR ASSIGNED DORMITORY INMATE STEPHENSON BECAME LOUD AND DISRUPTIVE, ATTEMPTING TO GAIN THE ATTENTION OF OTHER INMATES. IT IS NOTED THAT INMATE STEPHENSON HAS PRIOR PLACEMENT IN CMI THIS COMMITMENT AND HAS 1 PRIOR DISCIPLINARY INFRACTION IN THE PREVIOUS 12 MONTHS FOR POSSESSION OF A CELL PHONE. INMATE STEPHENSON IS CURRENTLY PENDING A DISCIPLINARY REPORT FOR HIS INVOLVEMENT IN THE ABOVE NOTED DISTURBANCE. INMATE HAS SHOWN THAT HE IS A THREAT TO STAFF AND THE SECURITY OF THE INSTITUTION BY HIS ACTIONS.
Id. at 15. The classification hearing team met and Petitioner was present on May 14, 2010. Id. at 16. The classification team recommended Petitioner's placement on CM-I and found as follows:
INMATE STEPHENSON WAS INTERVIEWED THIS DATE. INMATE STEPHENSON STATED THAT HE WAS ON THE BASKETBALL COURT AND DID NOT PARTICIPATE. HIS PARTICIPATION AND BEHAVIOR IN A DISTURBANCE INVOLVING APPROXIMATELY 17 OTHER INMATES COULD HAVE CAUSED THE SITUATION TO ESCALATE INTO MORE SERIOUS PROPORTIONS CAUSING HARM TO STAFF AND INMATES ALIKE. INMATE STEPHENSON HAS SHOWN THAT HE IS A THREAT TO STAFF AND THE SAFE OPERATION OF THE INSTITUTION. RECOMMENDED CM1-510/119.
Id. at 16. On May 19, 2010, the State Classification Office approved Petitioner for CM-I. Id. Petitioner pursued his administrative remedies in jail regarding his CM-I placement on July 13, 2010, when his response to the grievance appeal was filed with the agency clerk and mailed. Id. at 60.
Respondents assert that Petitioner did not pursue any claims before the State court concerning the disciplinary report or his CM-I status. Petitioner did not file a Reply to rebut Respondents' assertion, or otherwise provide proof that he did pursue his claims before the Florida courts, or explain why he did not. Petitioner initiated this action on February 23, 2011. See docket.
A state prisoner who is deprived of gain time as a result of a prison disciplinary proceeding that allegedly violated due process may seek federal habeas review, but such review is governed by restrictions set forth under 28 U.S.C. § 2254. Medberry, 351 F.3d at 1054. Under the deferential review standard, habeas relief may not begranted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:
28 U.S.C. § 2254(d). Cullen v. Pinholster, _ U.S. _, 131 S. Ct. 1388, 1398 (2011). "This is a difficult to meet, and highly deferential standard for evaluating state-court rulings, which demands that the state-court decisions be given the benefit of the doubt." Id. (internal quotations and citations omitted). See also Harrington v. Richter, _ U.S. _, 131 S. Ct. 770, 786 (2011) (...
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