Hall v. Palmer

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

ENOCH DONNELL HALL,

Plaintiff,

v. Case No. 3:15-cv-824-J-39JRK

JOHN PALMER, etc.; et al.,

Defendants.

______________________________

ORDER

I. Status

Plaintiff, Enoch Donnell Hall, a death-row inmate, is

proceeding on a fourth amended complaint (Doc. 22; Compl.) filed

by his court-appointed counsel. Plaintiff asserts claims based on

the conditions of his confinement and an alleged use of excessive

force while he was housed at Florida State Prison (FSP).1 The first

four counts are against individuals the Court references

collectively as “supervisory defendants”: John Palmer, Warden of

FSP; Jeffery McClellan, Assistant Warden of FSP; Gina Gay,

Classification Supervisor of FSP; Amanda Maddox, Senior

Classifications Officer of FSP; and Julie Jones, former Secretary

1 Plaintiff is now housed at Union Correctional Institution

(UCI). See FDOC website, Offender Information Search, available at

http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last

visited January 8, 2020).

of the Florida Department of Corrections (FDOC).2 Plaintiff alleges

the supervisory defendants housed him a “heightened security” cell

for “multiple years” and arbitrarily restricted his recreation and

visitation privileges, in violation of the Eighth and Fourteenth

Amendments and contrary to the provisions of the Florida

Administrative Code. See Compl. at 10-12. Count five of the

complaint is against two corrections officers, Defendants Simmons

and Ellis, for their alleged use of excessive force against

Plaintiff on May 21, 2014. Id. at 13-14.

Before the Court are two motions for summary judgment: (1)

Plaintiff’s motion for partial summary judgment as to count four

of his complaint in which he seeks declaratory and injunctive

relief against the supervisory defendants (Doc. 86; Pl. Motion);

and (2) Defendants Jones, Palmer, McClellan, Gay, Maddox, and

Ellis’s motion for summary judgment as to the claims against the

supervisory defendants (counts one through four) (Doc. 87; Def.

2 Plaintiff sues Julie Jones in her individual and official

capacities as Secretary of the FDOC, a position she no longer

holds. Mark S. Inch is the current Secretary of the FDOC.

Therefore, pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, Mark S. Inch will be substituted as the proper party

Defendant as the Secretary of the FDOC with respect to the

official-capacity claim. The individual-capacity claim against

Julie Jones remains.

Motion).3 The motions are ripe for this Court’s review. See

Responses (Doc. 92; Def. Resp.) (Doc. 93; Pl. Resp.).4

II. Summary Judgment Standard

Under Rule 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). An issue is genuine when the

evidence is such that a reasonable jury could return a verdict in

favor of the nonmovant. Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville

Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere

scintilla of evidence in support of the non-moving party’s

position is insufficient to defeat a motion for summary judgment.”

Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

3 Defendant Simmons was served on October 12, 2016, but he

did not respond to the complaint. As such, the Court directed the

Clerk to enter a default against Defendant Simmons on November 7,

2018. See Order (Doc. 82).

4 Except for deposition transcripts and Plaintiff’s

declaration, the Court cites the parties’ exhibits as “Pl. Ex.”

and “Def. Ex.” followed by a letter designation. The Court cites

Plaintiff’s deposition transcript (Doc. 109) as “Pl. Dep.”;

Plaintiff’s declaration (Doc. 86-2) as “Pl. Dec.”; Defendant Gay’s

deposition transcript (Docs. 86-3, 86-4) as “Gay Dep.”; and

Defendant Palmer’s deposition transcript (Docs. 86-5, 86-6, 87-3,

87-4) as “Palmer Dep.” Page numbers to deposition transcripts

reflect the internal document numbering, not those assigned by the

Court’s electronic docketing system. Page numbers in all other

exhibits reference those assigned by the Court’s electronic

management system (CM/ECF), which are located in the upper right

corner of each document.

1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden

of demonstrating to the court, by reference to the record, that

there are no genuine issues of material fact to be determined at

trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th

Cir. 1991). The record to be considered on a motion for summary

judgment may include “depositions, documents, electronically

stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Rule

56(c)(1)(A).

“When a moving party has discharged its burden, the non-

moving party must then go beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and

admissions on file, designate specific facts showing that there

is a genuine issue for trial.” Jeffery v. Sarasota White Sox,

Inc., 64 F.3d 590, 593–94 (11th Cir. 1995) (internal citations

and quotation marks omitted).

On summary judgment, a party opposing the motion must point

to evidence in the record to demonstrate a genuine dispute of

material fact. Fed. R. Civ. P. 56(c)(1). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477

U.S. at 248. In determining whether summary judgment is

appropriate, a court “must view all evidence and make all

reasonable inferences in favor of the party opposing summary

judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.

1995) (citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del

Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

When a court is presented with cross motions for summary

judgment, the court must evaluate each motion separately to

determine whether either party is entitled to the relief sought.

In accordance with Rule 56, when evaluating the merits of each

motion, the court must construe the facts in the light most

favorable to the non-moving party. See 10A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 2720 (4th ed.,

August 2019 update) (“The court must rule on each party’s motion

on an individual and separate basis, determining, for each side,

whether a judgment may be entered in accordance with the Rule 56

standard.”).

III. Plaintiff’s Allegations & Claims for Relief5

Plaintiff sues the supervisory defendants in their individual

and official capacities. He alleges the supervisory defendants

5 Because Plaintiff is represented by counsel, the Court only

briefly summarizes the pertinent allegations and claims against

the supervisory defendants.

treated him differently than other death row inmates with respect

to his cell assignment and visitation and recreation privileges.

See Compl. at 6, 7. Plaintiff asserts he was arbitrarily “housed

in a cell that was built for and designated as a disciplinary

confinement cell for prisoners,” though he had not been found

guilty of any disciplinary infraction to have warranted this

“heightened security” status. Id. at 6. When Plaintiff grieved the

issue, he was informed his cell assignment was a result of “his

conviction for which he was sentenced to death.”6 Id.

Plaintiff also asserts the supervisory defendants arbitrarily

restricted his visitation and recreation privileges, which further

isolated him from other inmates and visitors. Id. at 10. Plaintiff

contends the collective conditions of his confinement—placement in

a heightened security cell with restrictions on his ability to

interact with others during recreation and visitation—amount to

cruel and unusual punishment in violation of the Eighth Amendment

(count one). Id. Additionally, he contends the restrictions on his

visitation and recreation privileges violate the Fourteenth

Amendment due process clause (counts two and three). Id. at 11,

12.

6 Plaintiff was sentenced to death on January 15, 2010, for

the murder of a corrections officer. See Pl. Motion at 4. See also

Florida Department of Corrections website, available at

http://www.dc.state.fl.us/OffenderSearch/Search.aspx (last

visited January 8, 2020).

In a separately numbered count (four), which Plaintiff

characterizes as a “claim,” he sets forth his requests for

declaratory and injunctive relief against the supervisory

defendants. Id. at 13. In count four, Plaintiff asserts he faces

“the continuing violation of his limited rights afforded to him

regarding the terms of his confinement” unless declaratory and

injunctive relief are not granted. Id. In addition to declaratory

and injunctive relief, Plaintiff seeks nominal damages7 and any

equitable relief deemed just and proper, reasonable attorneys'

fees, costs, and litigation expenses. Id. at 13-14.

IV. Record Evidence

A. “Heightened Security” Cell Assignment

Plaintiff was transferred to FSP in 2008 after he murdered a

corrections officer at Tomoka Correctional Institution. Pl. Dep.

at 4-5. Between 2008 and 2011, Plaintiff was housed in maximum

management at FSP. Id. at 5. See also Palmer Dep. at 24. On March

23, 2011, after Plaintiff was convicted and sentenced to death, he

was moved to death row and immediately placed in a “heightened

security” cell. Pl. Dep. at 5; Pl. Dec. ¶ 4. A heightened security

cell is one with a solid steel door (solid door cell) as opposed

to one with bars (open bar cell). Pl. Dec. ¶ 5; Pl. Dep. at 12.

7 The Court previously found Plaintiff is limited to nominal

damages under the Prison Litigation Reform Act (PLRA) as to his

claims against the supervisory defendants. See Order (Doc. 68).

See also Palmer Dep. at 19 (stating there are five “reinforced

cells” on death row, which are reserved for inmates on heightened

security); Gay Dep. at 10 (recognizing that confinement in a solid

door cell is considered “heightened security”).

At deposition, Plaintiff described the differences between

solid door and open bar cells: solid door cells have a steel door

with only one small window, while open bar cells have bars down

the front allowing inmates to see out, reach out, and communicate;

the air quality in solid door cells is poor; inmates in solid door

cells are not permitted to have entertainment or comfort items,

such as televisions, radios, computers, access to the canteen,

reading materials from the library, or fans, while inmates in open

bar cells enjoy such privileges; inmates in solid door cells sleep

on a concrete slab, while inmates in open bar cells sleep on a

metal bed that flexes; the shelf available for eating and writing

is smaller in solid door cells than in open bar cells; and inmates

in open bar cells receive cell-front visits from members of the

church, while those in solid door cells do not. Pl. Dep. at 13,

14, 15, 18-19.8

8 Defendants do not dispute Plaintiff’s description of the

differences between solid door and open bar cells. See Def. Motion

at 8-9.

Plaintiff remained in a solid door cell for a little over

five years, from March 2011 until July 2016.9 Pl. Dep. at 15; see

also Pl. Dec. ¶ 9. In July 2016, an officer told Plaintiff he had

“received a telephone call from the administration” with an order

to move Plaintiff to an open bar cell. Pl. Dep. at 47. Plaintiff

was housed in an open bar cell for a couple of months, and then he

was returned to a solid door cell in about September or October

2016. Pl. Dep. at 16; Pl. Dec. ¶ 14. At that time, he received a

similar explanation for his return to a solid door cell: the

administration “got a call and [he] was to be moved back.” Pl.

Dep. at 47-48. Plaintiff remained in a solid door cell for about

five or six months, until March 2017, when, without explanation,

he was again moved to an open bar cell. Id. at 16, 48. Plaintiff

said, after March 2017, he was moved “a couple more times . . .

behind the [solid] door,” though he could not recall how many times

or the dates. Id. at 16-17.

The last time Plaintiff was placed in a solid door cell was

because of a disciplinary infraction in July 2017, following an

altercation with another inmate while in the recreation yard. Id.

9 In his deposition, Plaintiff testified he was moved from a

solid door to an open bar cell on July 21, 2016. Pl. Dep. at 15.

However, in his declaration, Plaintiff says he was moved on or

about July 15, 2016. Pl. Dec. ¶ 9.

at 17.10 Plaintiff remained in the solid door cell for about twenty

days, returning to an open bar cell on August 9, 2017. Id.

Plaintiff has not been moved back to a solid door cell since. Id.

Plaintiff had no disciplinary charges lodged against him

between 2011, when he was transferred to death row and placed in

a solid door cell, and 2016, when he was moved to an open bar cell

(the first time). Id. at 43; Palmer Dep. at 11; Def. Motion at 11-

12, 18.11 When Plaintiff filed a grievance asking why a restriction

had been imposed against him even though he had not committed a

disciplinary infraction, a prison official informed him he was

housed in a cell “for heightened security due to [his] . . . crime

that sent [him] to death row.” See Pl. Ex. E at 2. Defendant

Palmer, on the other hand, offered a different explanation for

Plaintiff’s cell assignment, maintaining the cell assignment was

not related to Plaintiff’s conviction. Palmer Dep. at 14.

Defendant Palmer testified Plaintiff was placed on a

“heightened level of security” because he had a “propensity for .

. . violence” as demonstrated by his 1994 conviction (for which he

received a life sentence) and the 2011 murder conviction. Id. at

10 According to Plaintiff, the other inmate involved in the

altercation with him was not similarly disciplined by being moved

to a solid door cell. Pl. Dep. at 17.

11 Defendant Palmer testified he believed Plaintiff was

disciplined in 2015 for an “obscene, profane act charge.” Palmer

Dep. at 4. However, Defendant Palmer could not be sure, and

Defendants offer no documentary evidence of such a charge.

12, 16. Defendant Palmer explained, “from a behavioral risk

assessment standpoint [Plaintiff had] demonstrated a pattern of

violence towards others.” Id. at 16. According to Defendant Palmer,

Plaintiff had to regain the trust of administrators to be moved to

an open bar cell. Id. at 17. However, Defendant Palmer also stated,

“[Plaintiff] committed one of the most heinous crimes that you can

commit inside of a prison, and that is murder on a female

correctional officers.” Id. at 12.

Plaintiff offers the affidavit of Dr. Michael S. Maher, who

is a “board certified psychiatrist specializing in general and

forensic psychiatry” and evaluates inmates in FDOC facilities.

Maher Aff. ¶¶ 2, 3. Dr. Maher avers Plaintiff was “confined in a

heightened security, disciplinary-type cell with limited human

interaction, except for prison officials, for over five (5) years

and intermittently since then.” Id. ¶ 4. According to Dr. Maher,

the conditions of Plaintiff’s confinement, with sporadic out-of-

cell recreation and limited contact with others, can have “a

profoundly negative impact on [a] prisoner’s mental health – due

to lack of outside human contact and interaction – and poses a

significant risk of serious harm to [an inmate’s] well-being.” Id.

¶ 5.

Plaintiff testified he feels physically better when he is in

an open bar cell as opposed to a solid door cell. Pl. Dep. at 13.

He avers the conditions in a solid door cell are similar to those

of “solitary confinement in that it severely restricts [his]

ability to communicate with other human beings.” Pl. Dec. ¶ 6.

B. Visitation Privileges

According to Defendant Palmer, when Plaintiff was sentenced

to death row in 2011, his privileges should have “automatically

reverted to contact visitation.” Palmer Dep. at 25-26. Plaintiff

testified he indeed had contact visitation when he was first sent

to death row in 2011. Pl. Dep. at 5-6. However, in early 2013,

Defendant Palmer learned Plaintiff had contact visitation, which

he thought was an error. Palmer Dep. at 26. As such, Defendant

Palmer changed Plaintiff’s visitation privileges to non-contact.

Id. See also Pl. Dep. at 9. Defendant Palmer believed, based on

the nature of Plaintiff’s offense (the murder) and his “pattern of

behavior,” the Institution Classification Team (ICT) should have

placed Plaintiff on non-contact visitation status when Plaintiff

initially was sent to death row. Id.

Defendant Palmer testified Plaintiff had a violent history

and a “pattern of behavior,” and Palmer “did [not] trust

[Plaintiff] when [Palmer] was off at night or on weekends.” Id. at

26-27. According to Defendant Palmer, a “behavioral risk

assessment would say that [Plaintiff] was at risk for . . . repeat

behavior.” Id. at 28-29.12 Defendant Palmer said Plaintiff is

12 Defendants do not provide a behavioral risk assessment for

Plaintiff.

different from other inmates on death row, though he did not

explain how. Id. at 33.

Plaintiff testified Defendant Palmer told him he was being

denied contact visitation because of Plaintiff’s “actions,” for

which Plaintiff was “warned that [he] would suffer the

consequences.” Pl. Dep. at 49. Plaintiff did not know what

“actions” Defendant Palmer was referring to, though he assumed it

was his murder conviction. Id.; see also Pl. Dec. ¶23. Plaintiff

also testified Defendant Maddox stated Defendant Palmer changed

Plaintiff’s visitation status “due to [his] conviction.” Pl. Dep.

at 11.

Plaintiff has not had a visitor since 2006. Pl. Dep. at 6.

However, in 2013, two people tried to visit him but were prevented

from doing so.13 Id. at 53, 56.

C. Recreation Privileges

According to Plaintiff, inmates on death row have two kinds

of outdoor recreation: communal recreation and cage (solo)

recreation. Pl. Dep. at 23. See also Pl. Dec. ¶ 7. Defendant Palmer

testified death row inmates “automatically” have communal, outdoor

recreation unless the ICT imposes a restriction. Palmer Dep. at

13 It does not appear Plaintiff’s visitors were prevented from

seeing him because of his being on non-contact visitation status.

Plaintiff’s aunt told Plaintiff by letter that she attempted to

arrange a visit with him, but she “was given the runaround.” Pl.

Dep. at 55. A friend also tried to visit Plaintiff and, when she

arrived at the prison, was “turned away.” Id. at 56-57.

25-26. Inmates with communal recreation privileges can interact

with other inmates and play team sports such as basketball or

volleyball. Pl. Dep. at 28. Inmates in communal recreation also

have access to a water fountain and a kiosk machine (to email

family members). Id. at 33, 34.

Inmates assigned to solo recreation, however, are restricted

to a cage that roughly measures ten-feet tall by twelve to fifteen-

feet wide by twenty-feet long. Pl. Dep. at 30; Pl. Dec. ¶8; Palmer

Dep. at 48. When confined to cage recreation, inmates are not

permitted to talk to others (even though they can see and hear

inmates exercising in the communal area), are not permitted to

bring anything with them, and have no access to water or the kiosk

machine. Pl. Dep. at 29-30, 33, 34.14 Defendant Palmer, however,

testified water is provided for inmates exercising in the cage.

Palmer Dep. at 50.

When Plaintiff was sentenced to death row in 2011, he was not

permitted to enjoy communal recreation. Rather, he was

automatically assigned to cage recreation. Pl. Dep. at 5-6, 23.

Defendant Gay testified she understood Plaintiff’s recreation

privileges were restricted because of “the murder for which he was

convicted.” Gay Dep. at 53. On March 31, 2013, Plaintiff submitted

14 Plaintiff avers when he is denied communal recreation

privileges, he must choose whether to exercise in the cage or use

the kiosk, which he has done three times. Pl. Dec. ¶ 19.

an informal grievance inquiring about his recreation status,

saying he was assigned to the “cages that are used for disciplinary

purposes.” See Def. Ex. G at 2. Defendant Maddox responded to the

grievance, informing Plaintiff his outdoor recreation status

complies with Florida Administrative Code rule 33-601.830(j)3. Id.

The first time Plaintiff received communal recreation was

when he was moved from the solid door cell to an open bar cell in

July 2016, but each time he subsequently was moved back to a solid

door cell, he was again restricted to cage recreation. Pl. Dep. at

24, 25.

Plaintiff testified he has not had to seek mental health

counseling because of his inability to participate in communal

recreation. Id. at 32. However, he also asserts the officers

discourage inmates from going to callouts, and the mental health

counselors “don’t want to talk to [inmates] like that.” Id.

Plaintiff said he did not feel depressed because of the limits on

his recreation, but rather because of the “isolation.” Id. at 33.

Plaintiff agreed he felt “a difference” in himself when he was

granted communal recreation privileges as opposed to exercising in

the cage. Id. at 42.

V. Legal Analysis & Conclusions of Law

A. Defendants’ Motion for Summary Judgment

Defendants assert Plaintiff fails to state claims against the

supervisory defendants under the Eighth and Fourteenth Amendments.

Def. Motion at 5. As to the conditions of confinement claim,

Defendants maintain Plaintiff’s allegations do not rise to the

level of an Eighth Amendment violation but rather suggest he faced

“mere discomfort” or an inconvenience. Id. at 7. For instance,

Defendants argue, when Plaintiff was in the heightened security

(solid door) cell, he was not “deprived of any human need,” was

not subjected to the infliction of pain, and did not endure

conditions that were extreme or posed an unreasonable risk to his

health or safety. Id. at 10-11. Rather, they contend, Plaintiff

was provided items for his health and hygiene, such as dental care

and grooming items, and he was deprived only of “comfort” items,

such as a flexible metal bed, the ability to communicate with other

inmates, a television, radio, computer, fan, and canteen

privileges. Id. at 8-9, 11.

As to the due process claim, Defendants assert Plaintiff’s

placement in a solid door cell and restrictions on his recreation

and visitation privileges were not arbitrary but were rationally

related to prison security and administrative needs. Id. at 16,

18, 19. They further state the Florida Administrative Code permits

prison officials to restrict recreation privileges of inmates

convicted of murdering corrections officers, without notice or

hearing. Id. at 16, 17, 18, 20.

Finally, Defendants assert a qualified-immunity defense,

contending there was no clearly established law placing them on

notice of a potential Eighth or Fourteenth Amendment violation

when they placed Plaintiff on heightened security status and

restricted his recreation and visitation privileges. Id. at 21,

24.

As the Court previously ruled, Plaintiff states a claim under

the Eighth and Fourteenth Amendments, and the constitutional

rights at issue were clearly established. See Order (Doc. 68). On

summary judgment, Plaintiff has gone beyond the pleadings,

offering evidence to substantiate his allegations, most of which

Defendants do not dispute.15 After review of the evidence, the

Court finds there remain genuine issues of material fact with

respect to whether the supervisory defendants’ conduct violated

Plaintiff’s constitutional rights. As such, Defendants’ motion is

due to be denied.

B. Plaintiff’s Motion for Injunctive Relief

Plaintiff seeks summary judgment on count four of his

operative complaint, in which he seeks declaratory and injunctive

relief against the supervisory defendants. See Pl. Motion at 1-2.

Plaintiff asks the Court to enter an order declaring the FDOC

violated provisions of the Florida Administrative Code (“the

Code”) related to Plaintiff’s confinement conditions and exercise

15 Defendants dispute only whether Plaintiff had access to

water when in cage recreation. See Palmer Dep. at 50.

and visitation privileges, and enjoining Defendants from engaging

in further such violations. Id. at 19-25.

In response, Defendants contend Plaintiff’s requests for

declaratory and injunctive relief are moot because Plaintiff has

been transferred and is no longer housed in a heightened security

cell. See Def. Resp. at 5.

As a threshold matter, irrespective of the mootness issue,

the Court notes that Plaintiff is not entitled to declaratory or

injunctive relief on summary judgment. Notably, Plaintiff does not

move for summary judgment on the substantive constitutional

claims, nor does he explicitly address them in his motion. See Pl.

Motion at 19-24. Rather, Plaintiff premises the relief he seeks in

his motion solely upon his contention that the conditions of

confinement he was forced to endure at FSP were not properly

imposed under the applicable provision of the Code. Id.

Even if Plaintiff were to demonstrate Defendants’ conduct was

not justified under the Code, such a finding does not necessarily

mean Defendants violated Plaintiff’s constitutional rights under

the Eighth and Fourteenth Amendments. Plaintiff does not argue he

has demonstrated as a matter of law that Defendants violated his

constitutional rights. Until Plaintiff proves his claims, he is

not entitled to permanent injunctive relief. See Thomas v. Bryant,

614 F.3d 1288, 1317 (11th Cir. 2010) (“To obtain a permanent

injunction, a party must show . . . he has prevailed in

establishing the violation of the right asserted in his

complaint.”). Accordingly, Plaintiff’s motion is due to be denied.

Because the Court finds neither party is entitled to judgment

as a matter of law, the Court will refer the case to the assigned

Magistrate Judge to conduct a settlement conference. To enable the

parties to productively discuss settlement terms, however, the

Court is compelled to address Defendants’ contention that

Plaintiff’s requests for declaratory and injunctive relief are

moot.

Plaintiff acknowledges in a status report (Doc. 108; Pl.

Report) that he is now housed at UCI where he is in an open bar

cell and has the same recreation privileges as other death row

inmates. See Pl. Report at 1. However, Plaintiff’s “contact

visitation privileges remain suspended.” Id. Despite now being in

an open bar cell, Plaintiff maintains the controversy remains ripe

for review because “Defendants have a history of moving

[Plaintiff’s] cell and imposing restrictions seemingly without

justification[, which] indicate[s] that the violations are capable

of repetition.” Id.

Plaintiff’s contention requires the Court to accept the

premise that the FDOC imposed the complained-of conditions upon

him without “justification.” As such, the Court must closely

analyze the relevant Code provision to which Defendants cite as

justification for the confinement conditions of which Plaintiff

complains. That provision is rule 33-601.830 (“the Rule”), which

exclusively addresses death row.

i. Heightened Security

The Rule only “briefly addresses cell assignments” for death

row inmates. See Pl. Motion at 20. Under the Rule, all death row

inmates are on “single-cell special housing status . . . separate

from the general population housing.” See Fla. Admin. Code r. 33-

601.830(1). Both Defendants Palmer and Gay referenced “heightened

security” status in their depositions, though neither could define

what that phrase means. In fact, Defendant Palmer conceded the

phrase “heightened security” is not defined anywhere in the Rule.

Palmer Dep. at 80. Defendant Gay was unfamiliar with such a status

as a separate classification for death row inmates. See Gay Dep.

at 36. When asked whether the term “heightened security” is one

“used for classification of a death row inmate,” Defendant Gay

responded, “[n]ot that I know of.” Id.

Defendants Palmer and Gay also testified that “heightened

security” status is not necessarily the same as “disciplinary

confinement.” Defendant Palmer testified that death row inmates,

as “a unique population” inside the prison, generally serve

disciplinary confinement inside their cells. Palmer Dep. at 22.

Defendant Palmer stated, if there is “no imminent risk where we

feel like the person needs to go back behind . . . a solid door

then they would be placed in disciplinary confinement in their

cell.” Id. Similarly, Defendant Gay testified an inmate is not

necessarily in disciplinary confinement if he is in a solid door

cell. Gay Dep. at 36.

Defendants’ testimony comports with the plain language of the

Rule, which does not reference “heightened security” as a separate

death row classification or as a form of discipline. See Fla.

Admin. Code r. 33-601.830(1).16 Indeed, the phrase “heightened

security” appears only one time in the Rule, in subsection (7)(j),

which describes exercise privileges and restrictions the FDOC may

impose on those privileges. See Fla. Admin. Code r. 33-

601.830(7)(j)3.d. (noting the ICT may restrict an inmate’s

recreation privileges for, among other reasons, “[a]ny major rule

violation which requires heightened security measures”). Not only

is there no definition of or policy for a so-called “heightened

security” status, Defendant Palmer, at his deposition, was unbale

to plausibly articulate why Plaintiff was assigned to such a

status.

16 Moreover, there is no provision in the Rule permitting the

whole-cloth removal of all “comfort” or “personal” items from a

death row inmate’s cell without justification and review. In fact,

subsection (7)(a) provides a list of items death row inmates

“shall” be provided: clothing; bedding; hygiene and medically

necessary items; personal property (televisions, fans, radios,

etc.); canteen privileges; writing utensils (security pens); and

reading materials. See Fla. Admin. Code r. 33-601.830(7)(a). When

Plaintiff was in a solid door cell, he was denied many of the

“comfort” items listed in this subsection, though there appeared

to be no justification for the denial.

Defendant Palmer stated Plaintiff was on heightened security

status because Plaintiff had a “history” and “pattern” of violent

acts; had an “assaultive history”; could not be trusted; and,

according to a behavior risk assessment, “was at risk for . . .

repeat behavior.” Palmer Dep. at 16, 17, 27-29. However, Defendant

Palmer could not explain why Plaintiff was more violent or

dangerous than other death row inmates, all of whom are serving

death sentences because of violent acts. For instance, Defendant

Palmer did not describe any incident in which Plaintiff was violent

while housed at FSP between 2008 and 2016. Nor could he have. The

evidence shows Plaintiff remained discipline-free until 2017, when

he admittedly engaged in a physical altercation with another

inmate.17

Recognizing Plaintiff remained discipline-free until 2017,

Defendant Palmer testified, “the lack of disciplinary infractions

in and of itself is not – not necessarily an indicator of positive

adjustment.” Id. at 55. Again, though, Defendant Palmer did not

describe by way of concrete example why he deemed Plaintiff more

of a risk than other death row inmates. Additionally, Defendant

Palmer did not explain the results of any “behavioral risk

assessment” for Plaintiff, and Defendants provide no documentation

17 As noted previously, Defendant Palmer thought Plaintiff was

disciplined for an obscene word or act in 2015, though Defendants

offer no documentation of such a charge.

of such an assessment having been completed. The only examples of

Plaintiff’s violence to which Defendant Palmer refers were

Plaintiff’s convictions. See id. at 11-12, 28.

While Defendant Palmer disavowed that Plaintiff’s murder

conviction affected the decision to place Plaintiff in a solid

door cell, id. at 28, the evidence belies his contention. First,

a prison official expressly informed Plaintiff he was housed in a

cell “for heightened security due to [his] . . . crime that sent

[him] to death row.” See Pl. Ex. E at 2. The crime that sent

Plaintiff to death row was the murder of a corrections officer.

Moreover, in the parties’ joint pretrial statement, Defendants

acknowledge Plaintiff’s murder of a corrections officer justified

the restrictions Defendant Palmer imposed upon Plaintiff at FSP.

See Pretrial Stmt. at 3-4. Defendants state the following:

The Plaintiff brought this lawsuit to compel

Defendants to treat him like every other

similarly situated death row inmate, and yet,

Plaintiff is not similarly situated to any

other inmate on death row. Plaintiff was the

only prisoner at [FSP], who was serving a

life-sentence for killing in [sic] a guard …

Pretrial Stmt. at 3-4 (emphasis added). Defendants continue,

“Plaintiff was placed in heightened security because the Warden

[Palmer] felt it necessary based on his interactions with Plaintiff

and the fact that Plaintiff had killed an officer while in prison.”

Id. at 4.

As discussed, Defendant Palmer offered no examples of

interactions he had with Plaintiff that demonstrated Plaintiff

posed a risk of imminent harm to others such that Plaintiff should

have been housed in a solid door cell for five years, from 2011

until 2016. Instead, the evidence permits the inference that

Plaintiff was placed on heightened security status in 2011 solely

because he murdered a corrections officer.

ii. Recreation

The Rule permits the ICT to restrict the “place and manner”

of an inmate’s recreation, which includes a restriction on

interacting with other inmates, under the following circumstances:

[I]f the inmate has been convicted of or found

guilty through the department’s disciplinary

process . . . or an investigation sufficiently

documents that the inmate was involved in:

a. Assault or battery, murder, or attempted

murder of a correctional officer, volunteer,

visitor, or other inmate within an

institution; . . . .

See Fla. Admin. Code r. 33-601.830(7)(j)3. (emphasis added).

Defendants justify Plaintiff’s lengthy cage recreation status

(from 2011 through 2016) by reference to this subsection, which

they interpret as allowing the ICT to restrict, without notice or

other justification, the recreation privileges of a death row

inmate who has been convicted of murdering a corrections officer.

See Def. Motion at 17; Pretrial Stmt. at 5.

To interpret subsection (7)(j) as allowing the ICT to place

a death row inmate in cage recreation solely because the inmate

was convicted of murdering a corrections officer appears to defy

the intent of the provision. Significantly, this subsection

provides all death row inmates enjoy “out-of-doors” exercise

unless there is a reason to impose a restriction, as set forth in

paragraph 3. See Fla. Admin. Code r. 33-601.830(7)(j)3. (stating

the ICT can restrict “the place and manner of outdoor exercise,

such as an inmate’s ability to interact with other inmates”)

(emphasis added).

Defendant Palmer himself testified that communal recreation

is the default for all death row inmates. Palmer Dep. at 25-26. He

stated that when Plaintiff was sentenced to death row, “without

imposed penalties by the [ICT] . . . his privileges would have

automatically reverted to . . . group exercise.” Id. If group

recreation is the default, then some basis logically must exist

for subsequently restricting a death row inmate’s recreation

privileges, irrespective of the inmate’s conviction. To interpret

this provision as permitting FDOC officials to restrict a death

row inmate’s exercise privileges based upon the conviction for

which he is serving his sentence is tantamount to condoning

additional, arbitrary punishment.

Additionally, when subsection (7)(j)3. is read together with

subsection (3) (“ICT Reviews”), it appears a restriction on an

inmate’s recreation privileges is not intended to be imposed in

perpetuity or based upon a condition that will never change.

Subsection (3)(a) requires the ICT, every six months, to “conduct

a review of a death row inmate when the inmate . . . [h]as had

restrictions placed on his outdoor exercise pursuant to

subparagraph (7)(j)3.” See Fla. Admin. Code r. 33-601.830(3)(b)2.

That there is a review policy suggests an inmate has an opportunity

to regain communal recreation status at some point. Requiring the

ICT to review a restriction that was imposed for a condition that

will never change appears meaningless. If, as Defendants suggest,

an inmate’s recreation can be restricted simply based upon his

conviction, the ICT can send an inmate convicted of murdering a

corrections officer to cage recreation seemingly at the pleasure

of the members of the ICT. Such a reading is at odds with basic

concepts of due process.18

18 That Plaintiff was never provided an explanation for the

recreation restrictions imposed upon him over the years, aside

from the July 2017 disciplinary charge, demonstrates the seemingly

arbitrary manner in which subsection (7)(j) can be invoked. For

instance, in July 2016, Defendants inexplicably reinstated

Plaintiff’s communal recreation status, though the nature of his

conviction had not changed. And, Plaintiff’s recreation privileges

are not currently restricted (as of October 11, 2019), though,

under Defendants’ argument, he could be returned to cage recreation

at any time given the fact remains: Plaintiff murdered a

corrections officer.

iii. Visitation

As with communal recreation, contact visitation is the

default for death row inmates. See Fla. Admin. Code r. 33-

601.830(7)(l); see also Palmer Dep. at 26 (“When [Plaintiff] was

released from maximum management to death row . . . his privileges

would have automatically reverted to contact visitation.”). The

Rule mandates contact visitation for death row inmates except in

specific instances in which there are security concerns: “Death

row visits shall be contact visits unless security concerns

indicate that a non-contact visit is necessary, in which case the

non-contact visit shall be approved by the warden in advance.” See

Fla. Admin. Code r. 33-601.830(7)(l) (emphasis added).

This provision is the sole basis upon which Defendants justify

restricting Plaintiff’s visitation privileges in perpetuity,

beginning in about February 2013. See Def. Motion at 19; Def. Resp.

at 4. Defendant Palmer testified at deposition that he decided

Plaintiff’s visitation privileges were to be restricted “because

of the nature of [Plaintiff’s] offense.” Palmer Dep. at 26. The

language of subsection (7)(l), however, suggests non-contact

visits are to be imposed on a visit-by-visit basis, not as a

permanent status.

For instance, the reference to an inmate visit in the singular

(“a non-contact visit”; “the non-contact visit”) implies an inmate

may have a restriction imposed in advance of an individual visit

if the circumstances of that visit pose security concerns. Of

import, unlike recreation restrictions, the Rule does not require

the ICT to periodically review restrictions imposed on a death row

inmate’s visitation status. See Fla. Admin. Code r. 33-

601.830(3)(b). That there is no review process for a death row

inmate’s visitation status suggests any denial of an inmate’s right

to contact visits should be imposed per visit, with each non-

contact visit being approved by the Warden “in advance” of that

visit.19

iv. Mootness

Upon close examination of the relevant language of the Florida

Administrative Code, the Court finds some merit to Plaintiff’s

assertion that Defendants arbitrarily placed Plaintiff on

heightened security status and restricted his recreation and

visitation privileges.20 Additionally, the Court finds Plaintiff’s

19 Plaintiff has not had a visitor attempt to see him since

2013. Pl. Dep. at 54, 56. Whether Plaintiff has had a visitor is

not dispositive of whether the Rule permits Defendants to

permanently restrict Plaintiff to non-contact visitation status.

Significantly, Defendant Palmer restricted Plaintiff’s visitation

privileges after he “was made aware that [Plaintiff] had contact

visits,” not based upon review of a recommendation from the ICT

with respect to a specific, planned visit. See Palmer Dep. at 26.

20 The Court acknowledges, however, the Rule permits FDOC

officials to impose appropriate restrictions on, and take

disciplinary action against, an inmate who has been found guilty

of a disciplinary infraction, such as the disciplinary charge

against Plaintiff in 2017.

requests for declaratory and injunctive relief are not moot even

though Defendants ceased some of the complained-of conduct.

When a government actor voluntarily ceases the conduct of

which a plaintiff complains, the claim is not necessarily moot.

Doe v. Wooten, 747 F.3d 1317, 1322 (11th Cir. 2014). The Eleventh

Circuit recognizes, “[i]t is well settled that when a defendant

chooses to end a challenged practice, this choice does not always

deprive a federal court of its power to decide the legality of the

practice.” Id. Quoting the Supreme Court, the Eleventh Circuit

observes:

It is no small matter to deprive a litigant of

the rewards of its efforts . . . . Such action

on grounds of mootness would be justified only

if it were absolutely clear that the litigant

no longer had any need of the judicial

protection that it sought.

Id. at 1319. As such, a defendant who claims to have mooted an

action by his own conduct “bears a formidable burden of showing

that it is absolutely clear the allegedly wrongful behavior could

not reasonably be expected to recur.” Id. at 1322. Accord Rich v.

Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 531 (11th Cir. 2013)

(“Since the defendant is free to return to his old ways, he bears

a heavy burden of demonstrating that his cessation of the

challenged conduct renders the controversy moot.”).

A government actor who voluntarily ceases alleged wrongful

conduct is entitled to a rebuttable presumption that the conduct

will not recur. Wooten, 747 F.3d at 1322. However, to receive the

benefit of the presumption, the government actor must establish

“unambiguous termination of the challenged conduct.” Id. The

presumption may be rebutted if there is “some reasonable basis to

believe that the [conduct] will be reinstated if the suit is

terminated.” Id. In evaluating whether a government actor benefits

from the presumption, courts analyze the following factors:

(1) whether the termination of the offending

conduct was unambiguous; (2) whether the

change in government policy or conduct appears

to be the result of substantial deliberation,

or is simply an attempt to manipulate

jurisdiction; and (3) whether the government

has consistently applied a new policy or

adhered to a new course of conduct.

Id. at 1322–23 (internal quotation marks omitted). With respect to

the first two factors, the timing of the government actor’s

voluntary cessation of the complained-of conduct is relevant. Id.

at 1323. See also Rich, 716 F.3d at 531-32 (“[T]he timing and

content of the decision are . . . relevant in assessing whether

the defendant's ‘termination’ of the challenged conduct is

sufficiently ‘unambiguous' to warrant application of the . . .

presumption in favor of governmental entities.”) (alterations in

original).

Voluntary cessation likely will not moot a controversy if the

government actor provides no assurance it will not revert to its

former ways after the litigation ends, or if the circumstances

suggest the defendant voluntarily ceased the offending conduct to

avoid litigation. See id. (holding the FDOC failed to carry its

burden because the policy change was made only after the plaintiff

filed a counseled brief, and officials continued to defend the

conduct as constitutional); Jager v. Douglas Cty. Sch. Dist., 862

F.2d 824, 834 (11th Cir. 1989) (holding the plaintiff’s request

for injunctive relief was not moot because the defendant ceased

the conduct only under threat of litigation and continued

throughout the litigation to argue the complained-of conduct was

constitutional). See also Wooten, 747 F.3d at 1323-24 (holding the

plaintiff’s request for injunctive relief was not moot even though

he was transferred to a state facility, because the bureau of

prisons provided no assurance the plaintiff would not be

transferred back to a high-security facility where the alleged

wrongful conduct occurred).

Defendants fail to meet their “formidable” burden to show the

conduct of which Plaintiff complains has been “unambiguously

terminated” or that the allegedly wrongful conduct will not recur

after this litigation ends. See id. Under the circumstances, it

appears Defendants voluntarily changed Plaintiff’s confinement

conditions to avoid continued litigation. Of particular relevance

here is the timing of Defendants’ unexplained decision to change

Plaintiff’s cell and recreation status in July 2016. On February

25, 2016, the Court appointed counsel for Plaintiff (Doc. 18); on

May 23, 2016, Plaintiff’s counsel filed the operative complaint;

and by the end of June, Defendants Jones, McClellan, Palmer, and

Gay were served (Docs. 24-27). By mid-July, Plaintiff was moved to

an open bar cell and granted communal recreation privileges, with

no explanation. See Pl. Dep. at 23, 47.

Also of significance, Defendants offer no assurance they will

not again place Plaintiff on heightened security status in the

absence of a documented disciplinary infraction. In fact,

Defendants steadfastly maintain the conditions of which Plaintiff

complains were not unconstitutional but were appropriately imposed

upon him under the Code. See Def. Motion at 7.

Even though Plaintiff is now at UCI, there is a “reasonable

basis to believe that the [conduct] will be reinstated if the suit

is terminated.” Wooten, 747 F.3d at 1322. Plaintiff sues the

Secretary of the FDOC, and he remains subject to the provisions of

the Rule Defendants cite to justify the allegedly wrongful conduct.

See Hardwick v. Brinson, 523 F.2d 798, 800 (5th Cir. 1975)21

(holding a justiciable controversy existed even though the

plaintiff was housed at a different correctional institution,

because the defendant, the head of the state prison system, did

not promise the plaintiff would not be returned to the prison where

21 The Eleventh Circuit adopts as binding precedent all

decisions of the former Fifth Circuit handed down prior to October

1, 1981. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209

(11th Cir. 1981).

the conduct occurred). Even more, Plaintiff’s contact visitation

privileges remain suspended.

Given Defendants continue to defend the alleged wrongful

behavior of which Plaintiff complains, they fail to demonstrate

that “behavior could not reasonably be expected to recur.” See

Wooten, 747 F.3d at 1322. Thus, it is not “absolutely clear that

[Plaintiff] no longer had any need of the judicial protection” he

seeks. Id. at 1319.

Accordingly, it is now

ORDERED:

1. Plaintiff’s Motion for Summary Judgment (Doc. 86) is

DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 87) is

DENIED.

3. Pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, Mark S. Inch is substituted as the proper party

Defendant as the Secretary of the FDOC with respect to the

official-capacity claim against former Secretary Jones. The Clerk

is directed to make the appropriate entries on the docket to

reflect the substitution.

4. This case is referred to the Honorable James R. Klindt,

United States Magistrate Judge, to conduct a settlement

conference. By January 23, 2020, the parties shall confer and

contact the chambers of Judge Klindt with proposed dates the

parties and their counsel are available for a settlement

conference.

DONE AND ORDERED at Jacksonville, Florida, this 13th day of

January, 2020.

4 De

af J. DAVIS

United States District Judge

Jax-6

Cc: Counsel of Record

Judge Klindt’s Chambers

34