Lonergan v. Jones

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DANIEL R. LONERGAN,

Plaintiff,

v. Case No: 3:18-cv-812-BJD-JRK

MARK S. INCH and W. MILLETTE,

Defendants.

____________________________________

ORDER

I. Status

Plaintiff, an inmate of the Florida penal system, is proceeding on an

Amended Civil Rights Complaint (Doc. 6) against two Defendants: Mark S.

Inch, in his official capacity as the Secretary of the Florida Department of

Corrections (FDOC);1 and W. Millette, in her individual and official capacities.

Plaintiff claims that on December 27, 2017, he received a disciplinary report

(DR) for violating Florida Administrative Code Rule 33.601.314(9-27) (Rule 9-

27), which prohibits the use of unauthorized drugs as evidenced by positive

urinalysis results or observable behavior. He claims that Rule 9-27 is

unconstitutionally vague, conflicts with Rule 33-602.2035 of the Florida

1 Mark S. Inch was substituted for the former Secretary, Julie Jones. See Order (Doc.

22).

Administrative Code, and allows correctional officers “unbridled discretion” to

determine who will be afforded a urinalysis.

Before the Court are the parties’ cross-motions for summary judgment.

See Plaintiff’s Motion for Summary Judgment (Doc. 36); Defendants’ Motion

for Summary Judgment (Doc. 41). The parties have filed responses. See

Defendants’ Response in Opposition to Plaintiff’s Motion for Summary

Judgment (Doc. 44); Plaintiff’s Answer to Defendants’ Motion for Summary

Judgment (Doc. 53).2 The Motions are ripe for review.

II. Amended Complaint

Plaintiff alleges that on December 21, 2017, while housed at Union

Correctional Institution, he was in the law library when he began suffering

from a “gallbladder episode.” Plaintiff had been experiencing issues with his

gallbladder for one year and “intensely for several weeks before this incident.”

Security staff was called to assist, and Plaintiff advised the persons present

“that he thought perhaps his gallbladder had ruptured.” Upon searching

Plaintiff, “a candy wrapper was removed from his shirt pocket and Plaintiff

was placed in hand restraints and taken to the medical department.”

2 In Plaintiff’s Response, he states that he would have obtained a declaration from

another inmate but was unable to do so because of COVID-19 restrictions. See Doc.

53 at 11 n.2. It is unclear how this declaration would assist Plaintiff, but regardless,

if he is seeking relief from the Court, he cannot do so in a response. All requests for

relief must be in the form of a motion.

Approximately six minutes after the incident, Plaintiff was “briefly examined

by medical personnel.” A nurse stated, “‘[I]t doesn’t appear to me that he’s on

drugs.’” Plaintiff advised that he was not on drugs, and he requested a

urinalysis to confirm. The security staff present told Plaintiff to “shut up,” so

he did. Plaintiff was taken to confinement and placed in a holding cell. He

again requested a urinalysis, but he was told, “‘[W]e don’t need one you’re on

drugs.’”

On December 27, 2017, Plaintiff received a DR for violating Rule 9-27

(use of drugs based on observable behavior). According to Plaintiff, the

narrative in the DR read as follows:

On December 21, 2017 at approximately 1345 hours

while assigned as shift lieutenant, I responded to an

ICS emergency called by Mr. J. Yonn in the SWU

library. Upon arriving in the library inmate (Plaintiff)

was found sitting in a chair in the corner covering his

face and shaking. I attempted to get a response from

(Plaintiff) at which time he looked and began

speaking to me. Inmate (plaintiff) speech was slurred

and he was unable to focus and seemed confused.

Inmate (plaintiff) eyes were also dilated. At this time

I placed (Plaintiff) in hand restraints as a

precautionary measure. A search of inmate (Plaintiff)

person found what appeared to be a homemade pipe

which consisted of a page out of a magazine wrapped

in tape with the end burnt. Inmate (Plaintiff)

behavior is consistent with being under the influence

of an unauthorized drug.

In accordance with Florida’s Administrative Code governing inmate discipline,

Plaintiff completed the appropriate form requesting an investigation into the

allegations of the DR, and he identified certain actions he desired be taken. On

December 29, 2017, Plaintiff appeared before the disciplinary board, entered a

plea of not guilty, and explained that he had not used drugs but had been

experiencing a medical issue with his gallbladder. He disputed the narrative

in the DR and asked whether the disciplinary board had reviewed his pre-

confinement medical report, but he was told it was not part of the disciplinary

packet. He also asked whether the video had been reviewed, and he was told

no. The disciplinary board advised Plaintiff that they had a photocopy of the

“pipe” that was confiscated from him, but Plaintiff explained that the “pipe”

was a candy wrapper and the alleged resin was candy. He further advised the

disciplinary board that he twice requested a urinalysis, but he was told he was

not entitled to one.

Plaintiff was found guilty based on the allegations in the DR. He

contends that he was deprived of any materials that could form a defense. He

was sentenced to sixty days disciplinary confinement, loss of visitation for one

year, and cancellation of his good-conduct transfer. He further alleges that he

“suffers the stigma of a drug user[,] i.e. staff harass[ment,]” and this infraction

“mars his institutional file foreclosing favorable considerations.” He also

claims that it counts as a “strike” toward close management, negatively affects

his parole reviews, and subjects him to “allegedly random urinalysis” testing.

Plaintiff appealed the DR to the Warden by filing a grievance, but his

grievance was denied. He appealed the Warden’s denial and Defendant

Millette approved his grievance for further inquiry. As a result, Plaintiff

received an amended response from the Warden, again denying his grievance.

Plaintiff appealed again, but this time, Defendant Millette denied the

grievance appeal. According to Plaintiff, Defendant “Millette’s denial [wa]s

without regard to and in contrast with both published opinions of the First

District Court of Appeal and the United States Supreme Court. The denial is

part of a policy, practice and custom of ignoring mandated FD[O]C disciplinary

procedures and corresponding judicial interpretations.”

Plaintiff submits that Rule 9-27, on which his DR was based, is

unconstitutionally vague,3 directly conflicts with Rule 33-602.2035 of the

Florida Administrative Code,4 and allows correctional officers “unbridled

3 “Plaintiff is in doubt as to his constitutional right to be free from arbitrary

punishment resulting from . . . the unconstitutionally vague rule and the conclusive

presumption created thereby.”

4 Rule 33-602.2035 of the Florida Administrative Code states in pertinent part:

(2) The Department of Corrections conducts the following

types of inmate substance abuse testing:

(a) For-Cause or Reasonable Suspicion Testing.

1. Inmates suspected of involvement with drugs or alcohol

shall be subject to for-cause testing upon order of the

warden, the duty warden, the correctional officer chief of

the facility, a designee of one of the above individuals, or

the Office of Institutions. . . . For-cause tests will only be

discretion” to determine who will be afforded a urinalysis. He contends that

Defendant Inch has authorized and ratified the Rules. As to Defendant

Millette, he asserts that she denied his appeal from the DR “knowing full well

that the FD[O]C actions and inactions presented in the appeal violated both

Florida and United States precedent, requiring that the appeal be granted.”

He further states that the denial of the appeal was without regard to his due

process rights, and “[t]hat the denial is part of a FD[O]C policy, practice and

custom of denying disciplinary appeals without regard to FD[O]C disciplinary

procedures and the published opinions clearly establishing the procedures

denied Plaintiff.” According to Plaintiff, Defendants’ above-listed actions

violated his Fifth and Fourteenth Amendment rights to due process and equal

protection.

conducted on inmates who meet the criteria outlined in

subparagraphs 2.a. through c. below.

2. For-cause drug testing (also referred to as reasonable

suspicion drug testing) means drug testing based on a

belief that an inmate is using or has used drugs or alcohol

based on specific facts and reasonable inferences drawn

from those facts in light of experience. Such facts and

inferences shall be based upon:

a. Observable phenomena such as direct observation of

drug or alcohol use or of the physical symptoms or

manifestations of being under the influence of drugs or

alcohol (such as slurred or incoherent speech, erratic or

violent behavior, uneven gait, or other behaviors or

physical symptoms unusual for the inmate based on the

staff member’s knowledge of the inmate).

As relief from Defendant Inch, Plaintiff requests a declaratory judgment

finding that Rule 9-27 is unconstitutional, injunctive relief preventing the

FDOC from using Rule 9-27 without also requiring a urinalysis, expungement

of the DR from Plaintiff’s file, and reinstatement of his visitation privileges

and good-adjustment transfer. Against Defendant Millette, Plaintiff requests

declaratory relief that she violated Plaintiff’s constitutional rights and nominal

damages.5 Plaintiff also seeks fees and costs.

III. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, “[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

5 The Court previously dismissed all claims for monetary damages against Defendant

Millette in her official capacity only. See Order (Doc. 26). Additionally, Plaintiff’s

requests made in his Amended Complaint for reinstatement of his visitation

privileges and good-adjustment transfer are now moot. See Doc. 41-2 at 1 (Plaintiff’s

letter to defense counsel, acknowledging that he no longer desires to be transferred

from his current institution and his visitation suspension has now expired); see also

Plaintiff’s Motion (Doc. 36) at 13 (requesting a declaration that Rule 9-27 violates his

Fourteenth Amendment rights and the disciplinary report be removed from his file);

Plaintiff’s Response (Doc. 53) at 18-19 (same).

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, 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.” Fed. R. Civ. P. 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). 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)).

“The principles governing summary judgment do not change when the

parties file cross-motions for summary judgment. When faced with

cross-motions, the Court must determine whether either of the parties

deserves judgment as a matter of law on the undisputed facts.” T-Mobile S.

LLC v. City of Jacksonville, Fla., 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).

IV. Analysis6

After reviewing the parties’ filings and considering the applicable law,

the Court finds that Defendants are entitled to entry of summary judgment in

their favor. In their Motion, Defendants make the following arguments: (1)

Plaintiff cannot demonstrate a due process violation because he does not have

a liberty or property interest that would give rise to due process protections,

6 Although Plaintiff states that Defendants violated his rights to equal protection,

neither party briefed the issue. Regardless, the Court finds that even assuming

Plaintiff’s averments in his Declaration (Doc. 36-3 at 3) show that he was treated

differently than similarly situated inmates, he fails to allege that such discriminatory

treatment was based on a protected interest. See Jones v. Ray, 279 F.3d 944, 946-47

(11th Cir. 2001) (“To establish an equal protection claim, a prisoner must

demonstrate that (1) ‘he is similarly situated with other prisoners who received’ more

favorable treatment; and (2) his discriminatory treatment was based on some

constitutionally protected interest such as race.” (quoting Damiano v. Fla. Parole &

Prob. Comm’n, 785 F.2d 929, 932-33 (11th Cir. 1986))). Therefore, insofar as Plaintiff

raises an equal protection claim, it is due to be dismissed.

and even if he did, he received all the process to which he was entitled; (2)

Defendant Millette is entitled to qualified immunity and Plaintiff has failed to

demonstrate a constitutional violation for the denial of his grievances; (3)

Plaintiff lacks standing to challenge Rule 9-27; (4) Plaintiff failed to exhaust

his administrative remedies;7 (5) Rule 9-27 is constitutional; and (6) Plaintiff

is not entitled to injunctive relief.

A. Due Process Claim

“[A] § 1983 claim alleging a denial of procedural due process requires

proof of three elements: (1) a deprivation of a constitutionally-protected liberty

or property interest; (2) state action; and (3) constitutionally-inadequate

process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003); see Moulds

v. Bullard, 452 F. App’x 851, 854-55 (11th Cir. 2011) (recognizing that an

inmate is entitled to procedural due process protections if he is deprived of a

protected liberty interest).

Whether an inmate has a protected liberty interest

that would entitle him to due process protections “is

often a difficult determination in the context of a

prison, because prisoners have already been deprived

7 In a footnote buried on page 37 of Defendants’ Motion, Defendant Inch “requests

that this Court consider deferring ruling on this Motion until such time as the

Eleventh Circuit” reaches a decision in a pending appeal that raises the same

exhaustion issue. See Doc. 41 at 37 n.10. This Court previously denied Defendants’

motion to dismiss based on exhaustion, see Order (Doc. 26), and denied Defendants’

motion to stay this case pending the Eleventh Circuit’s decision, see Order (Doc. 39).

The Court reaffirms its previous decision to deny Defendants’ requests. Regardless,

given the Court’s findings herein, it need not address the exhaustion argument.

of their liberty in the ordinary sense of the term.” Bass,

170 F.3d at 1318.[8] In Sandin v. Conner, 515 U.S. 472

(1995), the Supreme Court gave us the test for

determining whether a convicted inmate has a

protected liberty interest. This test examines the

hardship imposed on the inmate relative to the “basic

conditions” of prison life. See id. at 485. Under this

test, a convicted inmate is entitled to procedural due

process in two circumstances. First, he is entitled to a

measure of procedural due process when an increased

restraint “exceed[s] [his] sentence in such an

unexpected manner as to give rise to protection by the

Due Process Clause of its own force.” Id. at 484.

Second, he is entitled to a measure of procedural due

process when a change in his conditions of

confinement “imposes atypical and significant

hardship on the inmate in relation to the ordinary

incidents of prison life.” Id.

Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1346-47 (11th Cir. 2016) (internal

citations modified).

Initially, the Court notes that Plaintiff does not allege that either named

Defendant was personally involved in his disciplinary proceeding.9 Rather, he

attempts to hold them liable because Defendant Inch authorized and ratified

the Rules, and Defendant Millette denied his grievance appeal without regard

8 Bass v. Perrin, 170 F.3d 1312 (11th Cir. 1999).

9 In the Amended Complaint, Plaintiff alleges that “[a]s a direct result of Officer

Chittum refusing to conduct the investigation as sought by Plaintiff and required by

the FAC, Plaintiff was denied the opportunity to present a meaningful defense and

thus a fair DR hearing.” Plaintiff did not name Officer Chittum as a defendant in this

case.

to his due process rights as part of an FDOC policy, practice, and custom. For

the reasons explained herein, Plaintiff’s claims fail.

Plaintiff did not lose any gain time as a result of the disciplinary

infraction.10 Nor has he alleged facts suggesting that his sixty-day stay in

disciplinary confinement imposed on him an “atypical and significant

hardship” relative to the ordinary incidents of prison life. Sandin, 515 U.S. at

484; see also Jacoby, 835 F.3d at 1347 (“Said another way, convicted inmates

have no right to a due process hearing before being punished for disciplinary

infractions unless the punishment is demonstrably harsher than the ordinary

conditions of prison life.”). Thus, Plaintiff did not have a protected liberty

interest in his designation to disciplinary confinement; and therefore, due

process protections were not triggered.

Similarly, Plaintiff does not have a liberty interest with respect to his

temporary loss of visitation privileges and cancellation of his good-conduct

10 Notably, Plaintiff did not have any gain time to lose. See Doc. 41-3 at 2 (noting that

the maximum gain time days available to be taken were zero). Indeed, as a life-

sentenced inmate, Plaintiff is not eligible to earn gain time. See Sanford v. Inch, No.

1:20-cv-68-AW-GRJ, 2020 WL 2528928, at *3 (N.D. Fla. Apr. 1, 2020) (“As an inmate

sentenced to life imprisonment, Plaintiff is ineligible to receive gain time.”), report

and recommendation adopted, No. 1:20-CV-68-AW-GRJ, 2020 WL 2528109 (N.D. Fla.

May 18, 2020); see also Fla. Stat. § 944.275(3)(a), (4)(f) (requiring the FDOC to

“establish for each prisoner sentenced to a term of years a ‘tentative release date’

which shall be the date projected for the prisoner’s release from custody by virtue of

gain-time granted or forfeited,” and recognizing that “[s]tate prisoners sentenced to

life imprisonment shall be incarcerated for the rest of their natural lives, unless

granted pardon or clemency” (emphasis added)).

transfer.11 See Charriez v. Sec’y, Fla. Dep’t of Corr., 596 F. App’x 890, 893 (11th

Cir. 2015) (“The Supreme Court has held that an inmate does not have a liberty

interest in or right to ‘unfettered visitation’ and thus denial of visitation is not

protected by the Due Process Clause.”); West v. Higgins, 346 F. App’x 423, 426

(11th Cir. 2009) (“An inmate has no liberty interest in a particular

classification, prison assignment, or transfer even if the inmate loses access to

rehabilitative programs and experiences more burdensome conditions than

before. Other examples of prison decisions not giving rise to liberty interests

include transfers to other prisons and visitation.” (citations omitted)).

Plaintiff also contends that being found guilty of this disciplinary

infraction has marred his reputation and “foreclos[es] favorable

considerations,” and that he “suffers the stigma of a drug user[,] i.e. staff

harass[ment].” However, “injury to reputation, by itself, does not constitute the

deprivation of a liberty or property interest protected under the Fourteenth

Amendment.” Jordan v. Sec’y, Fla. Dep’t of Child. & Fam. Servs., 723 F. App’x

690, 694 (11th Cir. 2018). And Plaintiff has not shown injury to his reputation

“plus the violation of some more tangible interest.” Id. (citing Paul v. Davis,

424 U.S. 693, 701-02 (1976)); see Farr v. Rodriguez, 255 F. App’x 925, 926 (5th

Cir. 2007) (“To the extent [the prisoner-plaintiff] alleges a stigma from being

11 Regardless, Plaintiff’s one-year loss of visitation privileges has since expired, and

he no longer seeks a good-conduct transfer. See supra n.4.

classified as a gang member, the classification, without more, is insufficient to

raise a constitutional claim.”). Indeed, his assertions that his DR counts as a

“strike” toward placement on close management, negatively affects his parole

reviews, and subjects him to “allegedly random urinalysis” testing are

speculative, at best. See Sandin, 515 U.S. at 487 (“The chance that a finding of

misconduct will alter the balance [in a parole decision] is simply too attenuated

to invoke the procedural guarantees of the Due Process Clause.”); see also

Walker v. Fla. Parole Comm’n, 299 F. App’x 900, 902 (11th Cir. 2008) (“The

Constitution does not confer a liberty interest in parole, and the Florida

statutes do not create a liberty interest in parole, because the decision whether

to release an inmate on parole is a matter committed to the discretion of the

Commission without the mandate of statute.” (citations omitted)).

In sum, Plaintiff did not have a constitutionally protected interest that

triggered due process protections in his disciplinary proceeding.12 Thus,

Defendants are entitled to summary judgment on Plaintiff’s due process claims

against them.

12 Given this finding, the Court need not address Defendants’ alternative argument

that Plaintiff received all the process he was due.

B. Standing to Challenge and Constitutionality of Rule 9-27

Defendants argue that “Plaintiff lacks standing to challenge the

constitutionality of the administrative rule as he . . . suffers no continuing,

present adverse effects.” Doc. 41 at 28.

[A] party seeking to invoke the subject matter

jurisdiction of a federal court must establish the

following:

First, the plaintiff must have

suffered an injury in fact—an invasion of

a legally protected interest which is (a)

concrete and particularized, and (b) actual

or imminent, not conjectural or

hypothetical. Second, there must be a

causal connection between the injury and

the conduct complained of—the injury has

to be fairly traceable to the challenged

action of the defendant, and not the result

of the independent action of some third

party not before the court. Third, it must

be likely, as opposed to merely

speculative, that the injury will be

redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992) (page numbers, quotation marks, citations,

brackets, and ellipses omitted).

Enders v. Fla., 535 F. App’x 799, 801 (11th Cir. 2013) (internal citation

modified).

Here, to the extent Plaintiff challenges Rule 9-27 as violative of his due

process rights, Plaintiff has not “suffered an injury in fact.” As explained above,

he did not suffer “an invasion of a legally protected interest.” And “[p]ast

exposure to illegal conduct does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any continuing, present

adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal

quotations and citation omitted). Plaintiff has not shown that he has a

continuing, present adverse effect from the alleged unconstitutional Rule. And

the fact that he may be subjected to this Rule in the future is speculative.

Nevertheless, assuming Plaintiff does have standing, the Court

substantively addresses his claim. Plaintiff’s main contentions are that Rule

9-27 is unconstitutionally vague, conflicts with Rule 33-602.2035 of the Florida

Administrative Code, and allows correctional officers “unbridled discretion” to

determine who will be afforded a urinalysis.

Courts “accord substantial deference to the professional judgment of

prison administrators, who bear a significant responsibility for defining the

legitimate goals of a corrections system and for determining the most

appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126,

132 (2003). Thus, the burden “is not on the State to prove the validity of prison

regulations but on the prisoner to disprove it.” Id.

“Unlike the strict standards of scrutiny

applicable to the constitutional rights of persons in

free society, the Supreme Court has adopted a

deferential standard for determining whether a prison

regulation violates an inmate’s constitutional rights,”

and “[a] prison regulation, even though it infringes the

inmate’s constitutional rights, is an actionable

constitutional violation only if the regulation is

unreasonable.” Hakim v. Hicks, 223 F.3d 1244, 1247

(11th Cir. 2000). In examining the reasonableness of

the regulation, we use the standard announced by the

Supreme Court in Turner v. Safley, 482 U.S. 78, 89

(1987), and consider the following factors:

(1) whether there is a “valid,

rational connection” between the

regulation and a legitimate governmental

interest put forward to justify it; (2)

whether there are alternative means of

exercising the asserted constitutional

right that remain open to the inmates; (3)

whether and the extent to which

accommodation of the asserted right will

have an impact on prison staff, inmates,

and the allocation of prison resources

generally; and (4) whether the regulation

represents an “exaggerated response” to

prison concerns. Hakim, 223 F.3d at 1247-

48.

Smith v. Fla. Dep’t of Corr., 318 F. App’x 726, 729 (11th Cir. 2008) (internal

citations modified).

In support of their position, Defendants submitted the Declaration of

Michael Harrell, the Bureau Chief of Security Operations in the Office of

Institutions for the FDOC, see Doc. 41-4, and the Declaration of Robert Chris

Hendry, the Bureau Chief of the Bureau of Professional Development and

Training, see Doc. 41-5. Mr. Harrell, who has twenty-seven years of experience

working in security, states in pertinent part:

First, the rule [(Rule 9-27)], like any disciplinary

charge, is a necessary means of policing the use of

drugs inside of our prisons. It creates a deterrent to

inmate illegal drug usage by creating a penalty for

engaging in that prohibited behavior through the

potential loss of gain time or the temporary suspension

of privileges. The rule is not simply a means to

discipline inmates, but is intended to create a

deterrent effect to protect the inmate population from

the dangers of illegal drug use. Those dangers include

both the physical dangers of illicit drug use to the

inmate as well as the dangers inherent in the trade,

bartering, and concealment of drugs, just as with any

type of contraband. Of particular concern in this

regard is the fact that trading and bartering amongst

inmates creates debts between inmates which often

result in inmate-on-inmate violence.

Another Security concern that requires the

Department to be able to effectively prevent and deter

the use of drugs by inmates are the necessary

interactions between correctional officers and inmates

who are under the influence. The danger to both

officers and inmate increases substantially when an

inmate is under the influence. Often times, when

officers encounter inmates who are under the

influence of dangerous drugs, especially K2, the

inmate becomes combative. These encounters often

result in a lawful use of force by responding officers

which increases the danger to both staff and inmate.

Due to the hard fixtures found in a prison

environment, such as metal furniture, concrete floors,

etc., inmates and officers are both very likely to

sustain injury when use of force incidents occur. This

risk is exacerbated when inmates are under the

influence of K2 or other dangerous drugs, as a result

of an inmate’s extreme agitation and unpredictable

actions.

It has been my experience that inmates will

resort to extreme measures to prevent getting caught

using illegal or dangerous drugs and we have seen this

become even more prevalent since the appearance of

K2 within our prisons. In recent history, the

Department saw a rapid increase in the misuse of K2

which is a drug known for being difficult to test for.

Additionally, inmates have also been known to ingest

dangerous substances, such as roach spray, and other

household chemicals sprayed on a smokable medium

to avoid detection via urinalysis testing. Accordingly,

the ability of the Department to discipline an inmate

for use of drugs based solely on observable behavior is

paramount to protect inmates from the dangers of this

type of behavior, and necessary as a result of the

various drug substances that avoid detection via

available tests. If the Department were unable to

render disciplinary charges against an inmate for the

use of drugs based on observable behavior

demonstrating that an inmate was under the influence

unless there was also a positive drug test, the number

of inmates who had used drugs and could be

disciplined using the established process would

greatly decline, and inmate drug abuse would be

expected to increase exponentially as the disciplinary

report process would no longer be an effective

deterrent.

Doc. 41-4 at 1-3.

Mr. Hendry provides the following information about the training FDOC

officers receive to assist them in “determining drug usage via the observable

behavior of inmates”:

First, the Basic Correctional Recruit Handbook

includes a unit on substance abuse among inmates,

which all correctional officers receive and are trained

on as part of basic recruit training, including an

additional unit covering “Constitutional Rights,

Inmate Rights and Legal Issues with Contraband”

more specifically.

Second, our officers undergo additional courses

which present an overview of the identification of

current substances of abuse and the associated

paraphernalia law enforcement officers will likely

encounter in their duties. Areas including Drug

Scheduling, appearance, observable effects on the

human body, methods of ingestion, possible medicinal

and/or cultural uses, slang terminology, cultivation,

production, manufacture, and distribution of the

prevalent substances within the seven categories of

drugs are described in those courses as well as an

emphasis on officer safety issues for encountering

users of these drugs. At the conclusion of these

courses, officers are able to address all of the above,

including the ability to state the observable effects on

the human body of various substances of abuse. Some

of the courses include, but are not limited to, drug

identification, drug identification in conjunction with

visitation security, and courses on the dangers of

opioids and how to administer opio[i]d reversal

products.

Doc. 41-5 at 1-2 (footnote omitted).

Considering the evidence presented, it is clear that Rule 9-27 is

reasonably related to legitimate penological interests. The affidavits submitted

by Defendants show that the purpose of Rule 9-27 is to prevent drug use among

inmates, which directly and logically correlates to the legitimate objective of

maintaining safety and order in a prison. This Rule did not infringe on

Plaintiff’s due process rights, because as discussed above, he did not have a

protected liberty interest triggering due process protections. Regardless, there

are various administrative and judicial remedies available to him to vindicate

any alleged due process violation. Precluding correctional staff from issuing

disciplinary charges for drug use unless there is a positive urinalysis test

would increase drug use and costs, and it would decrease the ability to

effectively deter inmate drug use. And the Rule is not an exaggerated response

to prison concerns. Indeed, it is abundantly clear from the record that

eliminating drug use in prisons is a valid, serious concern, and permitting

trained correctional staff to observe an inmate’s behavior and issue an

appropriate disciplinary charge is a reasonable response to that concern—

especially in light of the various substances available that may avoid detection

on a urinalysis test.

Plaintiff acknowledges the legitimate interests in preventing drug use in

prison, but he contends that the FDOC achieved its goal by creating Rule 33-

602.2035, and the “observable behavior” portion of Rule 9-27 “was never

intended to []exist.” Doc. 53 at 6. To adequately address Plaintiff’s argument,

the Court sets forth the pertinent substance of the Rules.

Rule 9-27 creates a disciplinary charge and provides the maximum

penalties that may be imposed upon an inmate that is found guilty of using an

unauthorized drug as evidenced by positive test results or observable behavior.

Rule 33-602.2035, entitled Inmate Substance Abuse Testing, describes the

types of inmate substance abuse testing and the attendant procedures. In

pertinent part, that Rule provides that “[i]nmates suspected of involvement

with drugs or alcohol shall be subject to for-cause testing.” Fla. Admin. Code r.

33-602.2035(2)(a)(1). For-cause testing may be ordered based on “[o]bservable

phenomena such as . . . the physical symptoms or manifestations of being under

the influence of drugs or alcohol (such as slurred or incoherent speech, erratic

or violent behavior, uneven gait, or other behaviors or physical symptoms

unusual for the inmate based on the staff member’s knowledge of the inmate).”

Fla. Admin. Code r. 33-602.2035(2)(a)(2)(a).

There is nothing inherently contradictory about these two Rules. Rule

33-602.2035 alerts inmates that they may be subject to for-cause testing if they

are suspected of using drugs based on observable phenomena such as

exhibiting the “physical symptoms or manifestations of being under the

influence.” It does not, however, require testing even if the inmate is suspected

of using drugs. Plaintiff points to the legislative intent behind Rule 33-

602.2035, arguing it does not mention that correctional staff may find an

inmate guilty of using drugs based on observable behavior alone. Even if that

is true, that would not necessarily render Rule 9-27 unconstitutional.

Moreover, Rule 9-27 does not create a conclusive presumption as

Plaintiff contends. Insofar as Plaintiff attempts to make a facial challenge to

the Rule in this regard, he has failed to show that an inmate charged under

Rule 9-27 is automatically found guilty without the ability to rebut the

allegations in a DR. As applied to Plaintiff, that he was unable to present

certain evidence does not necessarily mean Rule 9-27 creates a conclusive

presumption.13 Indeed, whether Rule 9-27 is constitutional is a different

analysis from whether Plaintiff’s due process rights were violated.

Finally, as to Plaintiff’s “vagueness” argument, the Court finds that Rule

9-27 is not vague. An ordinary prisoner would know that unauthorized drug

use may subject him to discipline, and that he may be found guilty of

unauthorized drug use based on his behavior. Correctional officers are

specifically trained on “the observable effects on the human body of various

substances of abuse,” and as previously found, this Rule is not unreasonable.

Plaintiff has not provided any evidence to suggest that officers are given

“unbridled discretion” in the enforcement of this Rule. His averment that

another inmate was charged with violating Rule 9-27 when the inmate was

actually suffering from a seizure and was denied a preconfinement medical

screening does not support his argument. Neither does his averment that a

different inmate was found guilty of violating Rule 9-27, despite the fact that

said inmate underwent three urinalysis tests that were all negative.14

13 Plaintiff did not request a urinalysis test on the documentary or physical evidence

disposition form. See Doc. 41-3 at 9. He requested the video from the library, a witness

statement from Mr. Yonn, a “[t]est from burnt paper,” a certification of Mr. Hughes

regarding drug behavior training, and his medical records from the preconfinement

physical. Id.

14 Notably, even individuals who are not incarcerated may be subjected to criminal

charges based on law enforcement’s observations of the individual’s behavior. See

Tyner v. State, 805 So. 2d 862, 865 (Fla. 2001) (recognizing that the state could prove

an individual is guilty of driving under the influence “without resort to evidence of

blood alcohol levels” by showing proof of “such things as the driver’s odor of alcohol;

witnesses who observed the driver consuming alcohol; evidence of the physical

The Court finds Plaintiff has failed to show that Rule 9-27 is

unconstitutional. Therefore, Defendants’ Motion is due to be granted in this

regard.

C. Qualified Immunity - Defendant Millette

“The qualified immunity defense shields ‘government officials

performing discretionary functions . . . from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Corbitt v. Vickers,

929 F.3d 1304, 1311 (11th Cir. 2019) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). The doctrine protects all but the plainly incompetent or those

who knowingly violate an inmate’s constitutional rights. Alcocer v. Mills, 906

F.3d 944, 951 (11th Cir. 2018). In other words, “[q]ualified immunity shields

an officer from suit when [he] makes a decision that, even if constitutionally

deficient, reasonably misapprehends the law governing the circumstances [he]

confronted.” Taylor v. Riojas, 141 S. Ct. 52, 53 (2020) (quoting Brosseau v.

Haugen, 543 U.S. 194, 198 (2004)).

“To be entitled to qualified immunity, the defendant must first establish

that he was acting within the scope of his discretionary authority.” Gaines v.

Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (citation omitted). If the

impairment of the driver; or evidence of an erratic manner of driving and other

related and relevant evidence”).

defendant so shows, the burden shifts to the plaintiff to demonstrate that the

defendant violated his constitutional rights and at the time of the violation,

those rights were clearly established. Id.

Here, there is no doubt that Defendant Millette was acting within the

scope of her discretionary authority when she addressed Plaintiff’s grievances.

Thus, the burden shifts to Plaintiff to show that she violated his clearly

established rights. However, as addressed above, Plaintiff has failed to show a

violation of his procedural due process rights, nor has he shown that Rule 9-27

is otherwise unconstitutional. Additionally, simply denying a grievance,

without more, does not render one liable for the underlying constitutional

violation. See, e.g., Jones v. Eckloff, No. 2:12-cv-375-FTM-29DNF, 2013 WL

6231181, at *4 (M.D. Fla. Dec. 2, 2013) (unpublished) (“[F]iling a grievance

with a supervisory person does not automatically make the supervisor liable

for the allegedly unconstitutional conduct brought to light by the grievance,

even when the grievance is denied.” (collecting cases)). And inmates have “no

constitutionally protected liberty interest in access to the prison’s grievance

procedure[; therefore, Plaintiff] cannot base a § 1983 claim on the Defendant[’]s

response to his grievances.” Moore v. McLaughlin, 569 F. App’x 656, 659 (11th

Cir. 2014) (citing Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir. 2011);

Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003)); see Charriez, 596 F.

App’x at 895 (finding the district court did not err in dismissing the plaintiff’s

claim that the defendants “had violated his constitutional due-process rights

by failing to take corrective action during the appeal of the suspension of his

visitation privileges[ b]ecause the prison grievance procedure does not create

a protected liberty interest”); Mathews v. Moss, 506 F. App’x 981, 984 (11th

Cir. 2013) (finding the plaintiff failed to state a claim because he merely

“alleged that his prison grievances were either ignored or wrongly decided or

that prison officials did not properly follow the prison’s own grievance

procedures”); Wromas v. Cruz, No. 2:17-cv-155-FtM-99MRM, 2018 WL

2318038, at *2 (M.D. Fla. May 22, 2018) (unpublished) (“[A] prison official’s

failure to timely process a grievance form, investigate it, or otherwise respond

to a grievance is not actionable under § 1983.”). As such, Defendant Millette is

entitled to qualified immunity as to the claims against her in her individual

capacity.

D. Injunctive Relief

Plaintiff seeks injunctive relief preventing the FDOC from using Rule 9-

27 without also requiring a urinalysis test and expungement of the DR from

his file. “To obtain a permanent injunction, a plaintiff must show (1) that he

has suffered an irreparable injury; (2) that his remedies at law are inadequate;

(3) that the balance of hardships weighs in his favor; and (4) that a permanent

injunction would not disserve the public interest.” Barrett v. Walker Cnty. Sch.

Dist., 872 F.3d 1209, 1229 (11th Cir. 2017). Plaintiff has not met his burden,

and his requests for injunctive relief are due to be denied.

Accordingly, it is

ORDERED:

1. Plaintiff's Motion for Summary Judgment (Doc. 36) is DENIED.

2. Defendants’ Motion for Summary Judgment (Doc. 41) is

GRANTED.

3. The Clerk shall enter judgment in favor of Defendants and

against Plaintiff, terminate any pending motions, and close the file.

DONE AND ORDERED in Jacksonville, Florida, this 10 day of

August, 2021.

bri. (), Daw

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BRIAN/J. DAVIS

United States District Judge

JAX-8/6

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Daniel R. Lonergan, #084131

Counsel of Record

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