Hall v. Poppell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

WENDALL HALL,

Plaintiff,

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

ELIZABETH PORFERT,

PATRICK MCCAWLEY, and

JON CARNER,

Defendants.

OPINION AND ORDER

This cause is before the Court on consideration of a motion

for summary judgment filed by Defendants Jon Carner, Patrick

McCawley, and Elizabeth Porfert (Doc. 73) and Plaintiff Wendall

Hall’s response in opposition to the motion. (Doc. 75). After

careful consideration of the pleadings and exhibits offered by all

parties, the Court grants the defendants’ motion for summary

judgment.

I. Background and Pleadings

Wendall Hall (Hall), a resident of the Florida Civil

Commitment Center (“FCCC”), initiated this action by filing a pro

1

se civil rights complaint under 42 U.S.C. § 1983. (Doc. 1). In

his Amended Complaint, Hall raised claims against the Secretary of

1 Hall’s amended complaint (Doc. 9) is the operative pleading

before the Court.

the Department of Children and Family Services and FCCC Director

Donald Sawyer because of an allegedly unconstitutional FCCC policy

(PRG-11) that provides for sanctioning residents who violate

institutional rules. (Doc. 9 at 3). Hall also raised First

Amendment retaliation claims against FCCC Security Chief Jon

Carner and FCCC Clinicians Patrick McCawley and Elizabeth Porfert.

(Id.) Finally, Hall argued that Defendants Carner, McCawley, and

Porfert violated procedural due process on two separate occasions

by filing false disciplinary reports against him and by failing to

provide advance written notice or an opportunity for him to present

witnesses at his hearing on the charges. (Id.)

The Amended Complaint’s factual allegations relevant to the

instant motion for summary judgment are as follows: Hall alleges

that on May 1, 2020, Defendant Porfert wrote a false disciplinary

report accusing him of masturbating in front of a staff member

(“Incident One”). (Doc. 9 ¶ 22). He alleges that Defendant

Porfert could not have seen his hands or penis because they were

hidden behind a bathroom stall door. (Id.) He asserts that the

disciplinary report was written in retaliation for filing

grievances and lawsuits against Defendant Porfert and her friends.

(Id.)

Next, on May 4, 2020, Hall was on suicide observation status

in an isolation cell. (Doc. ¶ 24). He alleges that Defendant

McCawley wrote a false disciplinary report against him for

“disrespect or violation of institutional rules or verbal assault”

(Incident Two). (Id.) Hall asserts that the disciplinary report

on Incident Two was written in retaliation for his lawsuits against

“Ms. Salema and Donald Sawyer.” (Id.)

On May 14, 2020, Defendant Carner found Hall guilty of both

disciplinary reports and placed him on secure management. (Doc.

9 ¶ 25). Hall asserts that Defendant Carner found him guilty

solely in retaliation for Hall’s grievances and lawsuits. (Id.)

Hall 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. ¶ 26).

Hall 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 defendants filed a motion to dismiss Hall’s amended

complaint. (Doc. 35). Thereafter, the Court dismissed all claims

against Defendant Secretary and Defendant Sawyer for failing to

state a claim on which relief could be granted. (Doc. 46 at 11–

12). The Court also dismissed Hall’s First Amendment retaliation

claims against Defendants Carner, McCawley, and Porfert as

premature because neither disciplinary report had been overturned.

(Id. at 16–17). However, the defendants’ motion to dismiss did

not address Hall’s due process claims against Defendants Carner,

McCawley, and Porfert for the allegedly false disciplinary reports

on Incidents One and Two, and the Court allowed those claims to

proceed. (Id. at 14–15).

The parties were directed to conduct discovery (Doc. 51), and

thereafter, Defendants Carner, McCawley, and Porfert filed a

motion for summary judgment. (Doc. 73). Hall has filed a

response (Doc. 75), and the motion is ripe for review.

II. Motion for Summary Judgment

In their motion for summary judgment, the defendants first

argue that “the ramifications of being found guilty of the two

charges” in Incidents One and Two were insufficient to implicate

an atypical significant deprivation such that Hall’s liberty

interests were violated (and thus, no procedural due process was

required). (Doc. 73 at 17, 18–19). Nevertheless, the defendants

also argue that Hall received adequate due process for both

incidents at his disciplinary hearing.2 (Id. at 18). In support

of their motion, the defendants attach affidavits from Defendant

Carner and Dakota Linder (Docs. 73-1, 73-2), a copy of the incident

reports for Incidents One and Two (Docs. 73-3, 73-4, 73-8), Hall’s

2 The hearing on both disciplinary charges was held at the

same time. (Doc. 73 at 18).

Notice of Violation and Behavior Management for Incidents One and

Two (Docs. 73-5, 73-9, 73-10), the camera review report on Incident

One (Doc. 73-6), the disposition reports for Incidents One and Two

(Doc. 73-7, 73-11), and the addendums showing that Hall refused to

sign his incident reports. (Docs. 73-8, 73-12).

In response to the defendants’ motion for summary judgment,

Hall generally denies—without explanation—each of the defendants’

3

statements of fact. (Doc. 75 at 2–4). Hall attaches to his

response many of the same documents as the defendants, including

the behavior management reports on Incidents One and Two (Docs.

75-7, 75-8), the incident reports (Docs. 75-9, 75-10, 75-11), and

the disposition reports for Incidents One and Two (Docs. 75-13,

75-14). He also attaches the grievances he filed over the

incidents (Docs. 75-4, 75-5, 75-6), his own affidavit (Doc. 75-

3 Many of the statements that Hall denies are either actually

admitted elsewhere in his pleadings, are clearly undisputable, or

are used to support his own arguments. For example, Hall denies

that Defendant Porfert wrote in her incident report that she

observed Hall masturbating in the urinal (Doc. 75 at 2), but states

in his affidavit that Defendant Porfort accused him of masturbating

in the urinal and wrote an incident report against him. (Doc. 75-

2 ¶¶ 5, 6). He denies that he was placed in an observation room

for close observation after threatening self-harm (Doc. 75 at 3)

yet attests that he was placed in a confinement cell “under suicide

observation, for making a suicide threat, stating I wanted to kill

myself[.]” (Doc. 75-2 ¶ 7). He denies that as a result of Incident

One he was placed on 30-day wing restriction and that his CARE

Level was restarted (Doc. 75 at 4), yet he states in his affidavit

that he received “30 days wing restriction for each D.R.” and that

his CARE Level was reduced to Level 3 from Level 4. (Doc. 75-2 ¶

5).

2), and a copy of the FCCC PRG-11 Behavior Management and

Intervention document. (Doc. 75-12).

Hall does not explain each exhibit’s significance. Nor does

he provide pinpoint citations to relevant portions of any document

that refute the defendants’ arguments or show that there is a

genuine issue of disputed facts. Litigants on summary judgment

cannot shift their burden to the Court by simply referring to the

existence of “evidence” in voluminous exhibits, large portions of

which are not addressed in their brief, with the expectation that

the Court will unearth any beneficial evidence that the filer may

have neglected to mention. See, e.g., United States v. Dunkel,

927 F.2d 955, 956 (7th Cir. 1991) (“Judges are not like pigs,

hunting for truffles buried in briefs.”); Carolina Acquisition,

LLC v. Double Billed, LLC, 627 F. Supp. 2d 1337 (S.D. Fla. 2009)

(“Federal judges are not archaeologists. . . . We possess neither

the luxury nor the inclination to sift through that mound of

obfuscation in hopes of finding a genuine issue of material fact

to deny summary judgment.”) (citation omitted); Lawrence v. Wal-

Mart Stores, Inc., 236 F.Supp.2d 1314, 1322 (M.D. Fla. 2002) (“It

is the obligation of the non-moving party . . . not the Court, to

scour the record in search of the evidence that would defeat a

motion for summary judgment[.]”).

Nevertheless, Hall provides a separate “Supplemental

Statement of Genuine Issues of Material Facts in Dispute” wherein

he urges that he did not receive adequate written notice of the

charges against him and did not have an opportunity to call

witnesses or to present evidence at the disciplinary hearings in

his own defense. (Doc. 75 at 6). He also asserts that he was

incompetent, and thus not responsible for statements made while in

the suicide observation cell and that there was insufficient

evidence to support the FCCC disciplinary board’s findings. (Id.

at 7).

III. Legal Standard

Summary judgment is appropriate only if it is shown “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). The Supreme Court explains the summary judgment standard

as follows:

[T]he plain language of Rule 56(c) mandates

the entry of summary judgment, after adequate

time for discovery and upon motion, against a

party who fails to make a showing sufficient

to establish the existence of an element

essential to that party’s case, and on which

that party will bear the burden of proof at

trial. In such a situation, there can be no

genuine issue as to any material fact, since

a complete failure of proof concerning an

essential element of the nonmoving party’s

case necessarily renders all other facts

immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986) (internal

quotation marks omitted). The movant may meet this burden by

presenting evidence that would be admissible at trial indicating

there is no dispute of material fact or by showing that the

nonmoving party has failed to present evidence in support of some

elements of its case on which it bears the ultimate burden of

proof. Id. at 322–24.

If the party seeking summary judgment meets the initial burden

of demonstrating the absence of a genuine issue of material fact,

the burden then shifts to the nonmoving party to come forward with

sufficient evidence to rebut this showing with affidavits or other

relevant and admissible evidence. Avirgan v. Hull, 932 F.2d 1572,

1577 (11th Cir. 1991). Summary judgment is mandated “against a

party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex,

477 U.S. at 322.

IV. Discussion

Liberally construing Hall’s Amended Complaint and his

response to the defendants’ motion for summary judgment, Hall

challenges the sanctions imposed as a result of the disciplinary

reports because both reports were allegedly false and because he

received constitutionally inadequate due process during the

disciplinary hearing.

A. Hall’s claims that the defendants fabricated the

claims against him are premature.

Notably, Hall does not merely claim that he was provided

inadequate due process during his disciplinary proceedings. He

claims that he was sanctioned undeservedly as a substantive matter

because he never engaged in the behavior of which he was accused.

Hall specifically asserts that the defendants fabricated both

disciplinary reports based on spite and on a desire to retaliate

against him. He claims that Defendant Porfert “falsely accused”

him of masturbating while looking at her because he had filed

lawsuits against her and her friends. (Doc. 9 ¶ 22). He asserts

that Defendant McCawley wrote the second disciplinary report

solely to retaliate against him for filing lawsuits against Emily

Salema and Donald Sawyer. (Id. ¶ 24). He claims that Defendant

Carner found him guilty of the infractions only because he (Hall)

filed lawsuits against Defendant Carner’s friends. (Id. ¶ 25).

Because Hall asserts that he is actually innocent of the charges,

these allegations, if proven, would necessarily imply the

invalidity of the sanctions imposed. However, Hall has not

alleged that the disciplinary reports have been overturned.

Rather, that is part of the very relief he seeks in his Amended

Complaint. (Id. ¶ 32).

In Heck v. Humphrey, 512 U.S. 477, 489 (1994), the United

States Supreme Court stated that a § 1983 cause of action

“attributable to an unconstitutional conviction or sentence does

not accrue until the conviction or sentence has been invalidated.”

A “conviction” for purposes of Heck, includes a ruling in a prison

disciplinary proceeding “based on allegations of deceit.” Edwards

v. Balisok, 520 U.S. 641, 648 (1997).4 The Balisok Court

specifically held that claims “for declaratory relief and money

damages, based on allegations of deceit and bias on the part of

the decisionmaker that necessarily imply the invalidity of the

punishment imposed, is not cognizable under § 1983.” Id. at 648.

To the extent Hall seeks relief for the defendants’ alleged

fabrications, his section 1983 claims with respect to the sanctions

imposed for Incidents One and Two have not yet accrued because he

has not alleged that the disciplinary charges terminated in his

favor. Therefore, the claims are due to be dismissed as premature,

and the defendants are entitled to summary judgment on any claim

based upon their conduct leading to his convictions. See Kleparek

4 The Court recognized that Hall is not a prisoner. And 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 has similarly 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 in the prison context also sets forth the

contours of the due process rights of the civilly committed. Id.

v. Florida Civil Commitment Center, No. 2:13-cv-490-FtM-38CM, 2014

WL 7218881 (M.D. Fla. Dec. 17, 2014) (dismissing FCCC plaintiff’s

claims challenging an allegedly false disciplinary report and the

procedures used during the disciplinary hearing because the

disciplinary infraction had not been expunged); Douse v. Budz, No.

2:09-cv-596-FtM-29DNF, 2009 WL 3256328 at *4 (M.D. Fla. Oct. 7,

2009) (recognizing that “a claim challenging unlawful conduct

leading to an unconstitutional conviction, including

administrative action while in confinement, cannot proceed unless

the plaintiff shows that the challenged conviction was reversed,

expunged or otherwise invalidated,” as required by Heck).

B. The sanctions imposed on Hall do not implicate

constitutional due process concerns.

Even if Hall challenges only the process afforded him on the

disciplinary reports (and not the reports on a substantive basis),

the defendants are still entitled to summary judgment because Hall

has not met the threshold requirement of showing that he was

deprived of a protected interest arising from the Due Process

Clause.

In its order on the defendants’ motion to dismiss, the Court

explained the procedural due process required at prison

disciplinary hearings:

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. These 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).

(Doc. 46 at 13–14) (footnote omitted). The Court further

explained that a defendant’s failure to comply with the procedural

protections does not automatically give rise to a due process

claim. (Id. at 14) Rather, 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 Fourteenth Amendment’s Due Process Clause

protects persons against deprivations of life, liberty, or

property; and those who seek to invoke its procedural protection

must establish that one of these interests is at stake.”)

Hall argues that there is a genuine issue of material fact as

to whether: (1) he was provided advance notice of the disciplinary

charges against him; (2) he was provided an opportunity to call

witnesses; and (3) there was some evidence to support the board’s

findings. (Doc. 75 at 6–7). The defendants argue that they

complied with all the Wolff requirements but note that “[a]

defendant’s failure to follow each Wolff procedural requirement

violates a plaintiff’s constitutional rights only when the failure

resulted in the deprivation of plaintiff’s interest in life,

liberty or property.” (Id. at 17). The defendants further argue

that, while Hall was afforded due process, “the ramifications of

being found guilty of the two charges would not even require that

FCCC afford due process under the law.” (Id. at 19). It is

unnecessary to now consider whether either party has shown a

genuine dispute (or lack of dispute) as to whether the defendants

followed each Wolff requirement because the Court finds that the

sanctions alleged by Hall do not implicate due process concerns.

It is undisputed that the sanctions imposed for the two

disciplinary reports were a total of sixty days in administrative

confinement (30 days for each infraction, to run consecutively)

and a reduction in of Hall’s CARE level “from a CARE Level 4 to a

CARE Level 3.” (Docs. 75-2 at 5, 73-11, 75-14, 75-13). Hall now

asserts that the reduction in CARE Level means that he is not

currently cleared for employment or allowed to possess his personal

television, presumably until he is placed back on CARE Level 4 in

as little as six months. (Doc. 75-2 at 5).5,6

In Sandin, the Supreme Court held that temporary periods of

segregation, such as Hall’s two 30-day periods of administrative

confinement, do not typically implicate a liberty interest because

they do not present an “atypical, significant deprivation in which

a State might conceivably create a liberty interest.” 515 U.S.

at 486. See also 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); Al-Amin v. Donald, 165 F. App’x 733,

738 (11th Cir. 2006) (finding that there is no right inherent in

5 The Court takes notice of the Florida Civil Commitment

Center Resident Handbook, which describes the privilege levels

(CARE Levels) at the FCCC. A resident assigned to CARE Level 3

advances to CARE Level 4 after six months upon approval from their

treatment team if he has no major violations or fewer than three

minor violations during that time. See

https://docplayer.net/15372250-Florida-civil-commitment-center-

resident-handbook-13619-s-e-highway-70-arcadia-florida-34266-

8700-phone-863-491-4800-fax-863-491.html

6 Hall 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

v. Conner, 515 U.S. 472, 487 (1995) (“[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”).

the Constitution to be free from confinement in administrative

segregation). Likewise, Hall’s temporary loss of his right to

seek paid employment at the FCCC7 and the right to possess his own

portable television—privileges presumably allowed at CARE Level 4,

but not Level 3—do not evince a denial of adequate food, exercise,

medical care, sanitation, or any other circumstance that, in the

Court’s view, would constitute an atypical and significant

hardship in relation to the ordinary incidents of resident life at

the FCCC. See Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454,

460 (1989) (finding an inmate does not have a protected interest

in visitation arising from the Due Process Clause); Moore v.

Pemberton, 110 F.3d 22, 23 (7th Cir. 1997) (finding no loss of

liberty or property when prisoner received as part of his

disciplinary punishment a two-week loss of commissary privileges);

Walker v. Loman, No. 06–0896–WKW, 2006 WL 3327663, at *1, *3 (M.D.

Ala. Nov. 15, 2006) (holding the 90-day loss of store, telephone

and visitation privileges, recommended custody increase, and

referral for possible free-world prosecution did not result in the

deprivation of a liberty interest). Simply put, the sanctions

imposed on Hall for the violations did not implicate due process

concerns, and summary judgment is due to be granted in favor of

the defendants on Hall’s procedural due process claims.

7 Notably, Hall does not claim that he was actually employed

at the FCCC when his CARE Level was reduced.

Vv. Conclusion

Accordingly, it is now ORDERED:

1. The motion for summary judgment (Doc. 75) filed by

Defendants Jon Carner, Patrick McCawley, and Elizabeth

Porfert is GRANTED. Judgment shall enter dismissing as

premature all claims based upon the defendants’ alleged

fabrication of disciplinary reports and denying on the

merits all claims based upon inadequate procedural due

process.

With no remaining defendants or claims, the Clerk is

directed to terminate any pending motions, close this case,

and enter judgment accordingly.

DONE AND ORDERED in Fort Myers, Florida on June 17th, 2022.

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

Wendall Hall