Whitsett v. Cannon

• Decision Date: 30 September 2015
• Docket Number: Case No. 3:14–cv–813–J–34JBT
• Parties: Steven R. Whitsett, Plaintiff, v. Timothy Cannon, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

139 F.Supp.3d 1293

Steven R. Whitsett, Plaintiff,

v.Timothy Cannon, et al., Defendants.

Case No. 3:14–cv–813–J–34JBT

United States District Court, M.D. Florida, Jacksonville Division.

Signed September 30, 2015

Steven R. Whitsett, Lake City, FL, pro se.

Jamie M. Braun, Office of the Attorney General, Tallahassee, FL, for Defendants.

ORDER

MARCIA MORALES HOWARD

, United States District Judge

THIS CAUSE is before the Court on Defendants Parrish and Polk's Motion to Dismiss Plaintiff's Fourth Amended Complaint (Doc. # 28; Motion) filed on January 20, 2015. Plaintiff filed a response to the Motion on February 9, 2015. See Plaintiff's Reply to Defendants Parrish [sic] Polk's Motion to Dismiss Plaintiff's Fourth Amended Complaint (Doc. # 29; Response). Accordingly, the Motion is ripe for review.

I. Background Facts¹

Plaintiff Steven R. Whitsett (Whitsett), proceeding pro se, alleges that, while an inmate at Columbia Correctional Institution (CCI), he has been improperly designated as a "violent potential predator," transferred to more restrictive housing with violent inmates, and deprived of numerous privileges. See Fourth Amended Complaint (Doc. # 27; FAC) ¶¶ 10–42.² Whitsett asserts that Defendants J.A. Parrish and Randall Polk have violated his right to due process under 42 U.S.C. § 1983

, as guaranteed by Article I, Section 9 of the Florida Constitution and the Fourteenth Amendment to the United States Constitution, by designating him a potential predator without prior notice or an opportunity to defend (Count I) and by doing so based on a 1995 conviction for lewd assault in violation of department policy (Count Two). Id. at 8–9.

Whitsett provides the following factual background for his claims. In 1995, Whitsett was convicted of lewd assault, and the state court sentenced him to 8 years of incarceration. Id. ¶ 1. After completing his term of incarceration in 1999, Whitsett continued to be detained in a civilian mental health facility from which he escaped on June 5, 2000. Id. ¶¶ 3–4. Authorities captured Whitsett the next day, charged and convicted him of armed escape, and later sentenced Whitsett to twenty years of imprisonment. Id. ¶¶ 5–7. In 2010, authorities transferred Whitsett to CCI, and on February 8, 2013, relocated him to a high security housing dorm with "particularly violent prisoners." Id. ¶¶ 9–10. "[A]cting on a rumor," Whitsett requested information regarding his inmate classification. Id. ¶ 11. In response, J. Waters, a classification officer, advised Whitsett that on February 4, 2013 the Institutional Classification Team had designated him as a "potential violent predator" (PVP) based on his 1995 conviction for lewd assault, pursuant to an interim policy explained in a department Memorandum. Id. ¶¶ 11–14, 18; see Exs. A, B, C, D (Memorandum). Whitsett contends that the Inmate Classification Team included Defendants Polk and Parrish. Id. at ¶ 14. He further asserts that these Defendants failed to give him notice, an opportunity to appear, or an opportunity to challenge his designation. Id. ¶¶ 15–17. Whitsett also alleges that the department policy only allowed a PVP designation based on actions that occurred within the correctional system during the current term of incarceration, not for prior actions that occurred outside the correctional system, such as his 1995 lewd assault. Id. ¶ 21; see generally, Memorandum.³

In support of his claims, Whitsett provides a copy of a Memorandum, dated January 18, 2013, sent by Timothy H. Cannon, then the Assistant Secretary of Institutions, Florida Department of Corrections (FDOC),⁴ to Regional Directors and Wardens with the subject, "Potential Predator Identification List (Pre-iBAS/SRI Initiatives)." See id. at 1. The Memorandum describes an interim process for FDOC "to identify certain predators or potential predators" with the goal of reducing in-cell violence between inmates. Id. The Memorandum provides a high-level description of a report analyzing a variety of factors, including the two classifications described below, to be used "to ensure appropriate inmate housing assignments." Id. at 2. During assessments, classification officers are directed to check a box in the central database if the inmate meets one of two criteria: (1) commission of a murder in prison (MIP), for which inmates will be deemed a predator; or (2) currently incarcerated for a violent felony commission (VFC), for which inmates will be deemed a PVP. Id. For the second category, in which Whitsett has been classified, the Memorandum states that

an inmate's entire record should be taken into consideration, including the number of violent disciplinary reports and their circumstances, and/or the nature and circumstances of the violent felony conviction, the inmate's arrest record including the presence of any sex convictions, overall institutional adjustments, prior negative transfers, contacts, length of sentence, size, stature and any other information about the inmate known by staff not available in the database.

Id. at 3. The Memorandum states that inmates with the MIP flag, "to the extent possible, SHOULD NOT be housed with inmates who are not identified as such[,]" id. at 2 (emphasis original), but provides no such proscription for inmates deemed PVPs, such as Whitsett.

Whitsett also provides an email from Terri Gilliam, State Classification Officer, Bureau of Classification Management, explaining that

to qualify for the VFC flag he or she must have committed the violent felony and received a conviction for the violent felony during his or her current incarceration. This includes convictions for offenses while the inmate is out of [FDOC's] custody but still actively serving his or her sentence ....

FAC, Ex. J. Whitsett attaches his inmate requests, informal and formal grievances, and corresponding FDOC responses regarding his classification and change in housing, documenting his attempts to determine his status and address his concerns internally. See id. Exs. A, B, C, E, F, G, H, I, K, L, M, N, O.

As a result of his VFC classification and PVP designation, Whitsett alleges that he has endured a "significant and atypical hardship." Id. at 8. Specifically, he alleges that he

was placed in a "high risk" housing unit at [CCI...] with other prisoners designated potential predators[;] has had restrictions placed on [his] housing, bunk, work, education and vocation assignments which prevent him from participating in rehabilitation programs necessary for his re-entry into society in early 2016[;] suffers from the stigma of being viewed as a sexual predator by staff and other prisoners [resulting in] sexual harassment and threats of sexual violence[; and] suffers mental anguish from being designated a potential predator [although] a civil jury returned a verdict on April 4, 2001, finding him to not be a predator.

Id. ¶¶ 43–47 (emphasis original). For relief, Whitsett seeks (1) a declaratory judgment stating Whitsett's PVP designation without notice, hearing, or proper qualification violated his due process rights; (2) an award of costs against Defendants; (3) a permanent injunction directing Defendants to remove Whitsett's designation from his institutional classification file; (4) an award of nominal damages; and (5) such other relief as he may be entitled. Id. at 9–10.

In their Motion, Defendants seek dismissal of Whitsett's claims in their entirety. See generally Motion. Specifically, Defendants argue that Whitsett's claims should be dismissed because he has not alleged a loss of any cognizable liberty interest, and, thus, fails to state a claim. See Motion at 4–9. Defendants contend that there can be no stigma creating a liberty interest based on designating Whitsett as a PVP because he has a prior conviction for lewd assault. Id. at 5–6. In doing so, Defendants distinguish Kirby v. Siegelman, 195 F.3d 1285 (11th Cir.1999)

, in which the Eleventh Circuit found a liberty interest implicated by labeling an inmate as a sexual predator where the inmate had not been convicted of a sex crime and the classification restricted his housing, took away privileges, and required attendance at therapy sessions. See Motion at 5. Defendants argue that unlike in Kirby, Whitsett has been convicted of a sex crime and, here, no participation in therapy or treatment programs is required. Id. at 6.

Defendants also argue that Whitsett's designation is made under the FDOC's general authority to maintain order that includes broad discretion in housing classification. Id. at 6–7 (citing Fla. Stat. §§ 944.17(7)

, 945.025(1) ). Indeed, they assert that the housing restrictions about which Whitsett complains are similar to those imposed on other inmates in administrative and disciplinary confinements⁵ or those placed in close management and which have been held not to implicate the Due Process Clause. Id. at 7 n. 1 (citing Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)

). Defendants also argue that Whitsett has no constitutional right to vocational, rehabilitative, or educational programs. Id. at 8. Thus, Defendants contend that because the PVP designation implicates no constitutional rights, even if the policy stated in the Memorandum was misapplied, Whitsett has no cause of action. Id. at 8–9.

In his Response, Whitsett argues that, even if the conditions of his confinement did not implicate a liberty interest, which he disputes, his placement in segregation implicates a liberty interest requiring due process under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974)

. Response at 1–4. Whitsett contends that, just as with disciplinary confinement or close management, which require due process through formal rules providing notice and hearing, his segregation implicates a liberty interest that also requires due process. Id. at 3–4. He notes that, after he began filing grievances related to the lack of process, in September 2013, prison authorities implemented procedures to provide notice and...