# Hall v. Poppell

> District Court, M.D. Florida · August 13, 2021

URL: https://www.frixlaw.com/law-library/cases/10108143

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 13, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10108143

## How later opinions describe it (automated extraction)

- rejecting plaintiff’s equal protection argument on the basis, inter alia, that it “rests on the false premise that individuals subject to commitment under the [SVPA] are similarly situated to mentally ill persons committed under the Baker Act.”
- recognizing that the protections from actions such as false disciplinary reports are found in “the procedural due process requirements as set forth in Wolff v. McDonnell”
- concluding that thirty days of disciplinary confinement did not give rise to a protected liberty interest

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

WENDALL HALL,

Plaintiff,

v. Case No. 2:20-cv-380-JES-MRM

CHAD POPPELL, DONALD SAWYER,
ELIZABETH PORFERT, PATRICK
MCCAWLEY, and JON CARNER,

Defendants.

OPINION AND ORDER
This cause is before the Court on consideration of the
following:
Plaintiff’s Motion for Sanctions for Failure
to Serve (Doc. 32, filed Feb. 26, 2021);
Plaintiff’s Motion for the Marshal to Serve
Defendant Chad Poppell (Doc. 33, filed Feb.
26, 2021);
Defendants Donald Sawyer, Elizabeth Porfert;
Patrick McCawley, and Jon Carner’s Motion to
Dismiss Plaintiff’s Amended Complaint (Doc.
35, filed March 29, 2021);
Plaintiff’s Response in Opposition to
Defendants Donald Sawyer, Elizabeth Porfert;
Patrick McCawley, and Jon Carner’s Motion to
Dismiss Plaintiff’s Amended Complaint (Doc.
36, filed April 8, 2021);
Plaintiff’s Motion for Default Judgment
against Defendant Poppell (Doc. 38, filed
April 21, 2021); and
Plaintiff’s Motion to Compel Discovery (Doc.
40, filed May 14, 2021).
For the reasons given in this Order, the defendants’ motion
to dismiss Plaintiff’s amended complaint is granted in part and
denied in part. All claims against Defendant Sawyer are dismissed

for failure to state a claim upon which relief may be granted.
All retaliation claims against Defendants Porfert, McCawley, and
Carner are dismissed without prejudice to Plaintiff filing the
retaliation claims in a new action if Plaintiff’s disciplinary
reports are overturned. The motion is denied as to Plaintiff’s
procedural due process claims against Defendants Porfert,
McCawley, and Carner, and these defendants shall file an answer to
Plaintiff’s amended complaint within twenty-one days from the date
of this Order.
On its own motion, the Court dismisses Defendant Secretary
Chad Poppell from this action for Plaintiff’s failure to state a
claim on which relief may be granted.

I. Procedural History and Pleadings
Plaintiff initiated this action on May 26, 2020 by filing a
pro se civil rights complaint under 42 U.S.C. § 1983. (Doc. 1).
Plaintiff’s amended complaint (Doc. 9) is the operative pleading
before the Court.
Plaintiff is civilly committed to the Florida Civil
Commitment Center (“FCCC”) under the Sexually Violent Predators
Act (“SVPA”). Fla. Stat. §§ 394.910–.913.1 He was committed on
October 18, 2019 and was diagnosed with “a mental abnormality,
personality disorder, and lack of volitional control and an

exhibitionist mental disorder or an exhibitioners disorder
(masturbation disorder), suicide ideation, and depression.” (Doc.
9 at ¶ 21).
Liberally construing his amended complaint, Plaintiff raises
claims against Department of Children and Family Services
Secretary Chad Poppell2 and FCCC Director Donald Sawyer because
the FCCC has an unconstitutional policy that punishes residents
who violate institutional rules. (Doc. 9 at 3). Plaintiff raises
claims against FCCC Security Chief Jon Carner and FCCC Clinicians
Patrick McCawley and Elizabeth Porfert for retaliating against him
for filing lawsuits and grievances. (Id.) Finally, Plaintiff
argues that Defendants Carner, McCawley, and Porfert violated

procedural due process by failing to provide advance written notice

1 Under the SVPA, a person found to be a sexually violent
predator must be housed in a secure facility “for control, care,
treatment, and rehabilitation of criminal offenders, until such
time as the person’s mental abnormality or personality disorder
has so changed that it is safe for the person to be at large.”
Fla. Stat. § 394.917(2).
2 The Court takes notice that, Shevaun Harris is now the
Secretary of the Department of Children and Families. See
https://www.myflfamilies.com/about-us/office-secretary/ However,
because Chad Poppell, the former Secretary, is dismissed from the
action, the Court will not direct the Clerk to change the name of
the defendant.
of disciplinary charges against him or an opportunity for him to
present witnesses at his hearing on the charges. (Id.)
Plaintiff claims that the FCCC uses a disciplinary

confinement procedure (PRG-11) similar to that of the Florida
Department of Corrections (FDOC), “with similar rules and
penalties for violations thereof.” (Doc. 9 at ¶ 3). He asserts
that Defendant Donald Sawyer “created and implemented PRG-11.”
(Id. at ¶ 7).
Plaintiff describes the FCCC’s progressive disciplinary
system (PRG-11) as calling for a disciplinary report followed by
placement in lockdown status, and “retribution” for the rule
infraction. (Doc. 9 at ¶ 16). He contrasts this system with the
regressive discipline “delineated in CF Operating Procedure 1455-
20.” (Id. at ¶ 17). Plaintiff urges that in a “regressive
disciplinary system the resident receives an incident report and

is placed on time out, temporary restraint, or temporary seclusion
and a mental health professional immediately evaluates the
resident to determine if it’s safe to release him from said
status.” (Id.) Plaintiff argues that the Florida statutes
require Defendant Poppell to “exercise executive and
administrative supervision” over the FCCC and that the services
rendered at the FCCC are governed by both the Baker Act and the
SVPA. (Id. at ¶¶ 8, 9).
Plaintiff asserts that PRG-11 was wrongfully used to “punish”
3
him at the FCCC on two occasions. First, on May 1, 2020, Defendant
Porfert wrote a disciplinary report against Plaintiff for a lewd
and lascivious act (masturbating). (Doc. 9 at ¶ 22). Plaintiff
alleges that Defendant Porfert could not have seen Plaintiff’s
hands or penis, as they were hidden behind the bathroom stall door.
(Id.) He asserts that the disciplinary report was in retaliation
for filing grievances and lawsuits against Defendant Porfert and
her friends. (Id.)
Next, on May 4, 2020, Plaintiff was on suicide observation
status in an isolation cell. (Doc. 9 at ¶ 24). Defendant McCawley
wrote a disciplinary report against Plaintiff for “disrespect or
violation of institutional rules or verbal assault[.]” (Id.)
Plaintiff asserts that the disciplinary report was false and made

in retaliation for Plaintiff’s lawsuits against “Ms. Salema and
Donald Sawyer.” (Id.)
On May 14, 2020, Defendant Carner found Plaintiff guilty of
both disciplinary reports and placed him on secure management.
(Doc. 9 at ¶ 25). Plaintiff asserts that Defendant Carner found
him guilty in retaliation for Plaintiff’s grievances and lawsuits.

3 Plaintiff also appears to argue that the FCCC defendants
failed to comply with PRG-11 when they responded to his
disciplinary infractions. The Court will address Plaintiff’s
claim regarding the constitutionality pf PRG-11 separately from
his claims of procedural due process and retribution.
(Id.) Plaintiff asserts that he did not receive a copy of either
disciplinary report and was denied an opportunity to obtain
witnesses or witness statements in his defense. (Id. at ¶ 26).

Plaintiff seeks five million dollars in damages, a permanent
injunction disallowing the FCCC from “issuing and writing
disciplinary reports against” any FCCC resident, and a permanent
injunction, forcing the FCCC to use other disciplinary procedures.
(Doc. 9 at 11). He also asks that the Court expunge all of his
disciplinary reports and “release him from secure management and
wing restriction and confinements.” (Id.)
The FCCC defendants filed a motion to dismiss the complaint,
arguing that FCCC staff are best equipped to make decisions
regarding the administration of the facility and that “plaintiff
is improperly attempting to challenge the rule making authority of
the staff at the Florida Civil Commitment Center.” (Doc. 35 at

6–8). The defendants also argue that Plaintiff’s retaliation
claims are “without any factual basis to support his conclusory
allegations.” (Id. at 8).
II. Standards of Review
A. Motions to Dismiss
On a motion to dismiss, this Court accepts as true all the
plausible factual allegations in the complaint and construes them
in the light most favorable to the plaintiff. Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1262-63 (11th Cir. 2004). Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint. Stephens v. Dep’t of Health
& Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) (“On a motion

to dismiss, the facts stated in [the] complaint and all reasonable
inferences therefrom are taken as true.”) However, the Supreme
Court has explained that factual allegations must be more than
speculative as follows:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed
factual allegations, a plaintiff’s obligation
to provide the grounds of his entitlement to
relief requires more than labels and
conclusions, and a formulaic recitation of the
elements of a cause of action will not do.
Factual allegations must be enough to raise a
right to relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations and quotation marks omitted). Further, courts are not
“bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court,
referring to its earlier decision in Twombly, set forth a two-
pronged approach to evaluating motions to dismiss. First, a
reviewing court must determine whether a plaintiff’s allegation is
merely an unsupported legal conclusion that is not entitled to an
assumption of truth. Next, the court must determine whether the
complaint’s factual allegations state a claim for relief that is
plausible on its face. Iqbal, 556 U.S. at 679. Evaluating a
complaint under Rule 12(b)(6) is “a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.” Id.

B. 28 U.S.C. § 1915
A federal district court is required to review a civil
complaint filed in forma pauperis and to dismiss any such complaint
that is frivolous, malicious, or fails to state a claim upon which
relief may be granted. 28 U.S.C. § 1915. Section 1915(e)(2) is
a screening process to be applied on the Court’s initiative at any
time during the proceeding.
Dismissals under 28 U.S.C. § 1915(e)(2)(ii) for failure to
state a claim are governed by the same standard as Rule 12(b)(6)
of the Federal Rules of Civil Procedure. Mitchell v. Farcass, 112
F.3d 1483, 1485 (11th Cir. 1997).
III. Discussion

A. Plaintiff has not stated a claim against Defendants
Chad Poppell or Donald Sawyer.

The Court first considers whether Plaintiff has stated a
plausible claim against the Secretary of the Department of Children
and Families or FCCC Director Sawyer based upon the promulgation
and use of policy PRG-11 in disciplinary proceedings.
In Hall v. Poppell, No. 2:19-cv-878-FtM-38NPM, 2020 WL 814001
(M.D. Fla. Feb. 19, 2020) (“Hall I”), Plaintiff filed a virtually
identical lawsuit against Defendant Poppell in which he claimed
that he received a disciplinary report under PRG-11 for refusing
to stop moving his legs while sitting after being warned to stop.
Id. at *1. Plaintiff argued that his due process rights were

violated because the FCCC used a similar method of addressing
disciplinary infractions as the FDOC, and, because a prison is per
se punitive, use of this procedure at the FCCC was also per se
punitive and violated his constitutional rights. Id. The Court
concluded that Plaintiff had failed to state a plausible claim
under section 1983 and dismissed the complaint on initial
screening:
Due process requires that the conditions of
confinement of a non-prisoner not amount to
punishment. See Bell v. Wolfish, 441 U.S.
520, 535 (1979). Whether a condition of
confinement amounts to “punishment” depends on
whether the challenged condition is imposed
for punishment or whether it is incident to
some other legitimate government purpose.
Id. at 50 [sic], 535, 538 n. 16. Although not
a prisoner, sexually violent predators, like
other civil detainees, are unquestionably
subject to security measures like those
employed by corrections officials. See id.
at 540; see also Allen v. Illinois, 478 U.S.
364, 373–74 (1986) (detainees may “be
subjected to conditions that advance goals
such as preventing escape and assuring the
safety of others, even though they may not be
punished.”). Other than Hall’s conclusory
allegation that PRG-11 is punitive, the
Amended Complaint is devoid of factual
allegations from which the Court can plausibly
construe that PRF-11 is intended to punish
Hall.
Further, Hall’s argument that his status
should be compared to mentally ill individuals
committed under the Baker Act is similarly
unpersuasive. The state legislature
expressly recognized that commitment under the
Baker Act was “inappropriate” for individuals
sought to be committed under the SVPA.
Significantly, in its statement of “findings
and intent,” the state legislature said that
the SVPA was aimed at “a small but extremely
dangerous number of sexually violent predators
. . . who do not have a mental disease or
defect that renders them appropriate for
involuntary treatment under the Baker Act (§§
394.451–394.4789, Fla. Stat.)” § 94.910,
FLA. STAT. (2000); see also Westerheide v.
State, 831 So. 2d 93, 112 (Fla. 2002)
(rejecting plaintiff’s equal protection
argument on the basis, inter alia, that it
“rests on the false premise that individuals
subject to commitment under the [SVPA] are
similarly situated to mentally ill persons
committed under the Baker Act.”). See also
Kansas v. Hendricks, 521 U.S. 346, 358 (1997)
(“we have sustained civil commitment statutes
when they have coupled proof of dangerousness
with the proof of some additional factor such
as mental illness or mental abnormality”)
(internal quotations omitted). Thus, Hall’s
status as [a] civilly committed person under
the SVPA is not analogous to a person
committed under the Baker Act.
(Hall I at *2–3). As in Hall I, Plaintiff again argues that PRG-
11 is designed to punish residents for the objectionable behavior
they engage in while confined at the FCCC and is, therefore, per
se unconstitutional. (Doc. 9 at 7).
Plaintiff attached a copy of PRG-11 to his response to the
defendants’ motion to dismiss. (Doc. 36-1 at 13). The stated
purpose of PRG-11 is as follows:
The purpose of this policy is to provide a
process to maintain a safe and orderly
environment for residents and staff by
establishing facility rules and guidelines to
reflect what behavior is expected from the
resident population. It is necessary for
facility staff to have a system in place to
manage resident behavior by imposing
corrective measures on those residents whose
behavior is not in compliance with facility
rules while offering additional privileges to
residents who maintain appropriate behavior.
The behavior management system is intended to
modify maladaptive behavior, promote safety
and security, encourage the acceptance of
responsibility for one’s actions, and
positively influence the future decision
making abilities of residents. When safe and
appropriate, resident behavior shall be
managed by progressive corrective measures.
(Id.) Notably, the stated purpose of PRG-11 is to maintain
security and control over resident behavior, not to punish the
residents for their past behavior. Plaintiff appears to suggest
that FCCC residents should suffer no repercussions from engaging
in disruptive behavior while at the FCCC. However, that would not
provide a safe environment at the facility and is contrary to the
SVPA’s purpose of ensuring “long-term mental health treatment for
sexual predators and protection of the public from them[.]”
Westerheide v. State, 831 So. 2d 93, 104 (2002).
Because the Court cannot plausibly construe PRG-11 as
punishing the FCCC residents for being sexually violent predators
(as opposed to violating rules), the policy does not violate
Plaintiff’s due process rights. The Court adopts the reasoning
from Hall I, and any claims against Defendant Secretary Poppell or
Defendant Sawyer based upon PRG-11 are dismissed under 28 U.S.C.
4
§ 1915(e)(2)(B)(ii).
Because Plaintiff makes no other plausible factual
allegations against either of these defendants, they are dismissed
from this action for Plaintiff’s failure to state a claim against
them on which relief may be granted. Fed. R. Civ. P. 12(b)(6);
28 U.S.C. § 1915(e)(2)(B)(ii).
B. Plaintiff will be allowed to develop his procedural due
process claims against Defendants Porfert, McCawley, and
Carner.

Plaintiff alleges that all disciplinary report charges
against him were false and made in retaliation for Plaintiff filing
grievances and lawsuits against the accusers’ friends. (Doc. 9
at ¶¶ 22, 24). Plaintiff also asserts that no staff member
delivered a copy of either disciplinary report to him or provided
him with notice of the charges and that he was not allowed to
obtain witnesses in his defense. (Id. at ¶ 26). The defendants
did not address Plaintiff’s procedural due process claims in their
motion to dismiss.

4 Notably, this issue has already been extensively litigated
in this Court, not only in Hall I, but in similar complaints filed
by other FCCC residents, with the same outcomes. See, e.g., Vega
v. Kapusta, No. 2:19-cv-717-FtM-29MRM, 2020 WL 836274 (M.D. Fla.
Feb. 20, 2020); Wagner v. Poppell, No. 2:19-cv-810-FtM-38MRM, 2020
WL 871102 (M.D. Fla. Feb. 21, 2020); Scott v. Poppell, No. 2:20-
cv-4-FtM-38MRM, 2020 WL 6746255 (M.D. Fla. Nov. 17, 2020).
The filing of a false disciplinary charge, standing alone,
does not state a constitutional claim. The Constitution requires
only that the plaintiff be afforded due process at the

institutional hearing (on the allegedly false charge), which
represents the plaintiff’s opportunity to expose falsities or
inaccuracies. See Freeman v. Rideout, 808 F.2d 949, 952 (2d Cir.
1986) (recognizing that the protections from actions such as false
disciplinary reports are found in “the procedural due process
requirements as set forth in Wolff v. McDonnell”).
In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States
Supreme Court described the minimum due process requirements for
prisoners who receive discipline that results in the loss of good-
time credits or the imposition of solitary confinement.5 These

5 The Court recognizes that Plaintiff is not a prisoner. The
Supreme Court has concluded that, as a general rule, civil
detainees are “entitled to more considerate treatment and
conditions of confinement than criminals whose conditions of
confinement are designed to punish.” Youngberg v. Romeo, 457 U.S.
307, 322 (1982). Indeed, the involuntarily civilly committed have
liberty interests under the due process clause of the Fourteenth
Amendment to reasonably safe conditions of confinement, freedom
from unreasonable bodily restraints, and such minimally adequate
training as might be required to ensure safety and freedom from
restraint. Id. The Eleventh Circuit similarly has held that
“Youngberg establishes that the due process rights of the
involuntarily civilly committed are at least as extensive as the
Eighth Amendment rights of the criminally institutionalized, and
therefore, relevant case law in the Eighth Amendment context also
serves to set forth the contours of the due process rights of the
civilly committed.” Lavender v. Kearney, 206 F. App’x 860, 863
(11th Cir. 2006) (quoting Dolihite v. Maughon, 74 F.3d 1027, 1041
(11th Cir. 1996) (quotation marks omitted)). Therefore, the case
law that has developed under the Eighth Amendment also sets forth
protections include advance written notice of the charges,
adequate time to prepare a defense, an opportunity to present
witnesses and evidence, and a written statement by the factfinder

explaining the reasons for the decision. Id. In addition, the
decision-maker must be sufficiently impartial so as not to present
“a hazard of arbitrary decisionmaking.” Id. at 571. Moreover,
“the requirements of due process are satisfied if some evidence
supports the decision by the prison disciplinary board [to impose
a penalty.]” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S.
445, 455 (1985).
Even a defendant’s failure to comply with these procedural
protections does not automatically give rise to a due process
claim. The Supreme Court has explained that Wolff due process
claims are limited to situations where a defendant’s actions caused
an “atypical significant deprivation” in which a State might

conceivably have created a liberty interest. See Sandin v.
Conner, 515 U.S. 472, 486 (1995). In other words, a defendant’s
failure to follow each Wolff procedural requirement violates the
Constitution only when the failure resulted in the deprivation of
the plaintiff’s interest in life, liberty, or property. Wilkinson
v. Austin, 545 U.S. 209, 221 (2005) (“The 14th Amendment’s Due
Process Clause protects persons against deprivations of life,

the contours of the due process rights of the civilly committed.
Id.
liberty, or property; and those who seek to invoke its procedural
protection must establish that one of these interests is at
stake.”)

Plaintiff urges that the disciplinary reports resulted in
sixty days’ confinement and wing restriction. (Doc. 9 at ¶ 27).6
Generally, short periods of disciplinary confinement do not
constitute a protected liberty interest. See Sandin, 515 U.S. at
486 (concluding that thirty days of disciplinary confinement did
not give rise to a protected liberty interest); Rodgers v.
Singletary, 142 F.3d 1252, 1253 (11th Cir. 1998) (concluding that
two months in administrative confinement did not constitute a
deprivation of a constitutionally protected liberty interest).
However, at this stage of litigation, and because the actual
restrictions imposed by “confinement and wing restriction” are
unclear, Plaintiff will be allowed to develop his claim of

inadequate procedural due process in his disciplinary proceedings.

6 Plaintiff also speculates that the discipline reports could
be used in the future to deny his release from the FCCC. (Doc. 9
at ¶ 27). However, this is not the type of liberty interested
protected by, and requiring, a Wolff-style hearing. See Sandin,
515 U.S. at 487 (“[T]he chance that a finding of misconduct [in
prison] will alter the balance [in a parole hearing] is simply too
attenuated to invoke the procedural guarantees of the Due Process
Clause”).
C. Plaintiff has not stated retaliation claims against
Defendants Porfert, McCawley, or Carner.

Finally, the defendants assert that Plaintiff’s retaliation
claims “contain conclusory allegations of retaliatory motives
without any factual basis to support his conclusory allegations.”
(Doc. 35 at 8). The Court agrees. Plaintiff urges that Defendant
Porfert accused him of masturbating while looking at her “to
retaliate against Plaintiff for filing grievances against her and
for filing a lawsuit.” (Doc. 9 at ¶ 22). He asserts that
Defendant McCawley “falsely accus[ed] Plaintiff of making cursing
and disrespectful statements about staff members, who were not
present at the time, to retaliate against Plaintiff for filing
lawsuits against Ms. Salema and Donald Sawyer.” (Id. at ¶ 24).
He asserts that Defendant Carner found Plaintiff guilty of the
disciplinary reports “to retaliate against Plaintiff for filing
grievances against his friend or girlfriend Ms. Porfert and for
filing lawsuits against his friends Donald Sawyer and Emily
Salema.” (Id. at ¶ 25). These conclusory statements about the
defendants’ retaliatory motives do not raise this claim above the
speculative level. See Smith v. Fla. Dep’t of Corr., 375 F. App’x
905, 911 (11th Cir. 2010) (noting that “conclusory allegations are

not entitled to a presumption of truth”) (citing Iqbal, 129 U.S.
at 1951).
Moreover, Plaintiff cannot maintain a First Amendment
retaliation claim if he “is found guilty of an actual disciplinary
infraction after being afforded due process and there was evidence

to support the disciplinary panel’s fact finding[.]” O’Bryant v.
Finch, 637 F.3d 1207, 1215 (11th Cir. 2011) (emphasis in original).
This is because a determination of whether the disciplinary report
made a false accusation is a question of fact that is decided by
the disciplinary panel. Id. Plaintiff was found guilty of the
actual disciplinary infractions at issue. And, while Plaintiff
challenges the due process provided at his hearing, his retaliation
claims are premature because the reports have not been overturned.
Plaintiff will be allowed to develop his First Amendment
retaliation claims if (and after) the disciplinary reports are
overturned.
Accordingly, although the conclusory retaliation claims are

dismissed for failure to state a claim on which relief can be
granted, the dismissal is without prejudice to Plaintiff re-
raising supported claims of retaliation in a new complaint if the
disciplinary reports are overturned.
IV. Conclusions
Accordingly, it is now ORDERED:
1. Defendants Jon Carner, Patrick McCawley, Elizabeth
Porfert, and Donald Sawyer’s Motion to Dismiss (Doc. 35)
is GRANTED in part and DENIED in part.
a. The motion is GRANTED as to Defendant Sawyer. All
claims against Defendant Sawyer are dismissed with
prejudice for failure to state a claim on which relief

can be granted. Fed. R. Civ. P. 12(b)(6). The Clerk
of Court is directed to terminate Donald Sawyer as a
defendant in this action.
b. The motion is GRANTED as to Plaintiff’s First
Amendment retaliation claims. All retaliation claims
are dismissed for failure to state a claim on which
relief can be granted. Fed R. Civ. P. 12(b)(6). The
dismissal is without prejudice to Plaintiff raising
retaliation claims in a new action if his disciplinary
reports are overturned.
c. The motion is DENIED as to Plaintiff’s procedural due
process claims against Defendants Carner, McCawley,

and Porfert.
2. Plaintiff’s claims against Defendant Secretary Poppell
are DISMISSED for failure to state a claim upon which
relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
The Clerk of Court is directed to terminate Secretary
Poppell as a defendant in this action.
3. Because there are no remaining claims against Defendant
Poppell, Plaintiff’s Motion to Serve Defendant Poppell
(Doc. 33) and Motion for Default Judgment against
Defendant Poppell (Doc. 38) are DENIED as moot.
4, Plaintiff’s Motion for Sanctions for Failure to Serve
the FCCC Plaintiffs (Doc. 32) is DENIED as moot.
5. Plaintiff’s Motion to Compel Discovery (Doc. 40) is
DENIED as premature. The defendants’ Motion to Strike
Plaintiff’s Interrogatories (Doc. 39) is GRANTED.
6. Plaintiff’s Motion for Ruling (44) is GRANTED to the
extent set forth in this Order.
7. Defendants Carner, McCawley, and Porfert shall file an
answer to the remaining claims against them within
TWENTY-ONE (21) DAYS from the date of this Order.
DONE AND ORDERED in Fort Myers, Florida on August 13, 2021.

J me Ae
: le hy ) Zz. A, ob
adi EF. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2
Copies furnished to:
Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108143. Public record. Not legal advice.