Gill v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

RICARDO IGNACIO GILL,

Plaintiff,

v. Case No. 3:20-cv-535-MMH-LLL

MARK INCH, et al.,

Defendants.

ORDER

I. Status

Plaintiff Ricardo Ignacio Gill, a death-sentenced inmate in the custody

of the Florida Department of Corrections (FDOC) and housed at Union

Correctional Institution (UCI), initiated this action by filing a pro se Civil

Rights Complaint (Doc. 1; Complaint) under 42 U.S.C. § 1983. Gill sues these

Defendants: (1) Mark Inch, former Secretary of the FDOC; (2) John Palmer,

Director of Institutions of Region II; (3) Barry Reddish, Warden of Florida

State Prison (FSP); (4) Jeffery McClellan, Assistant Warden of FSP; (5) Travis

Lamb, Warden of UCI; (6) Tifani Knox, Assistant Warden of UCI; (7) Richard

Andrews, Classification Supervisor at UCI; (8) J. Lindsey, Colonel at UCI; and

(9) E. Biascochea, Major at UCI.1 Id. at 2-6. Gill asserts that Defendants have

continuously placed him in non-contact visitation status under Florida

Administrative Code Rule 33-601.735 in violation of his Fifth and Fourteenth

Amendment due process rights.2 Id. at 9.

This matter is before the Court on Defendants Inch, Palmer, Reddish,

McClellan, Lamb, Knox, Andrews, Lindsey, and Biascochea’s Motion for

Summary Judgment. See Defendants’ Motion for Summary Judgment (Doc.

83; Motion), with exhibits (Doc. 83-1 through Doc. 83-25; Motion Exs. A-Y). The

Court advised Gill of Federal Rule of Civil Procedure 56, notified him that

granting a motion for summary judgment would represent a final adjudication

of this case which may foreclose subsequent litigation on the matter, and

allowed him to respond to the Motion. See Order of Special Appointment (Doc.

7). Gill filed a Response opposing the Motion, see Plaintiff’s Response in

Opposition to Defendants’ Motion for Summary Judgment (Doc. 89; Resp.),

with an exhibit (Doc. 89-1; Resp. Ex.); a Supplemental Response, see

Supplement to Summary Judgment Response (Doc. 93; Supp. Resp.), with

exhibits (Docs. 93-1 through 93-5; Supp. Resp. Exs. A-E); and a Second

1 Gill also named J. Falk, Assistant Warden of UCI, as a defendant, but the

Court has dismissed Gill’s claims against Falk and terminated him as a Defendant.

See Doc. 42.

2 Gill also references the Equal Protection Clause of the Fourteenth

Amendment, but his equal protection allegations are intertwined with his due process

claim.

Supplemental Response, see Second Supplemental Motion in Opposition of

State’s Motion for Summary Judgment (Doc. 95; Second Supp. Resp.), with

exhibits (Docs. 95-1 through 95-4; Second Supp. Resp. Exs. A-D). The Motion

is ripe for review.

II. Gill’s Allegations3

In his Complaint, Gill alleges that Defendants, each in their individual

and official capacities as “member[s] of the Institutional Classification Team

[(ICT)],” violate his Fifth and Fourteenth Amendment due process rights by

arbitrarily imposing and continuing to impose on Gill a non-contact visitation

policy that does not apply to him. Complaint at 6-16.4 Gill explains that under

Florida Administrative Code Rule 33-601.735, the warden, upon the ICT’s

recommendation, may temporarily place an inmate “in [s]egregated/[n]on-

[c]ontact visitation status in order to maintain the security and good of the

institution.” Id. at 7. Gill contends that if the warden approves the ICT’s

recommendation to place an inmate on non-contact status, that inmate is “not

allowed to hug, touch, kiss, and enjoy the basic human need of having physical

contact that [is] enjoyed by other similarly situated inmates.” Id. at 8.

3 For the purposes of resolving Defendants’ Motion, the Court views all

disputed facts and reasonable inferences in the light most favorable to Gill. However,

the Court notes that these facts may differ from those that ultimately can be proved

at trial. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

4 In his Response, Gill clarifies that he sues each Defendant in their official

and individual capacities. Resp. at 2.

According to Gill, because of the stringent nature of non-contact conditions,

prison officials may only place an inmate on non-contact status temporarily

and must review the inmate’s visitation status every six months to ensure the

inmate is in the least restrictive environment to meet legitimate security

concerns. Id. He states that anything beyond those least restrictive means

“constitute[s] extraordinary circumstances which are not considered incidental

to the normal types of conditions experienced by individuals in prison.” Id. at

8-9. Gill alleges that as a member of the ICT, each Defendant has “specific

authority and responsibilities relative to the operation and management of the

Inmate Classification System,” including “making [i]nmate status decisions”

and placing inmates under non-contact status. Id. at 2-6.

Gill maintains, however, that Defendants have violated his procedural

due process rights when continuing him on non-contact status under Rule 33-

601.735. Id. at 16. According to Gill, Defendants rely on the “the vagueness of

[this Rule to] subject[] [him] to atypical and significant hardships for an

extended period of time without any definite time limitations.” Id. To support

this allegation, Gill asserts that Defendants have a custom, policy, and practice

of misapplying Rule 33-601.735 and using non-contact visitation as a long-term

punitive, unregulated, and unchallenged means to deny Gill contact visitation

even though Gill has not engaged in the enumerated prohibited conduct that

would warrant the imposition of the restrictive condition. Id. Gill explains

Defendants have routinely adhered to this unconstitutional policy and practice

of arbitrarily placing him on non-contact visitation status for sixteen years “at

various times from July 27, 2004 up to present” day. Id. at 6, 9. Gill also argues

Defendants failed to conduct the required six-month reviews of his non-contact

status for “11 ½ years, from July 19, 2005 to January 19, 2016,” and the criteria

on which Defendants relied to continue his non-contact status afterward

ignored the requirements of Rule 33-601.735. Id. at 15.

To demonstrate the punitive and capricious nature of the visitation

restrictions Defendants place on him, Gill notes that Defendants have

occasionally allowed him to enjoy contact visits on a “case-by-case basis,” and

Defendants know Gill exhibited exemplary behavior during those contact

visits. He also maintains that prison officials know he is permitted to

participate in open recreation with seventy-five other inmates without

incident. Id. at 15. But despite Gill’s ability to amicably coexist in prison’s open

population, Defendants arbitrarily and routinely find Gill a security threat and

prohibit him from enjoying contact visits with his loved ones without

justification or supporting evidence. Id. Gill asserts that he is forced to visit

with his family and friends through glass barriers while other similarly

situated inmates are allowed human contact with their visitors. Id. Gill argues

that by engaging in this practice, Defendants have hindered his ability to carry

on “the ordinary affairs of life in the same manner and in a like extent had he

not been subject to the unconstitutional conduct of Defendants . . . .” Id. at 20.

He explains that as a direct and proximate result of Defendants’ practice and

policies, he has and will continue to suffer “physical and mental anguish.” Id.

at 19-20. As relief, Gill requests a declaratory judgment finding Defendants’

use of the non-contact policy unconstitutional as applied to him and enjoining

Defendants from enforcing the non-contact visitation policy against him now

and in the future. Id. at 22-23. He also seeks $16,000 in punitive damages from

each Defendant and an award of costs.5 Id. at 21-22.

III. Standard of Review for Summary Judgment

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

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

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 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). An issue is genuine when the evidence is such that a reasonable

jury could return a verdict in favor of the non-moving party. Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v.

5 The Court dismissed Gill’s request for compensatory damages. See Doc. 42.

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

of evidence in support of the non-moving party’s position is insufficient to

defeat a motion for summary judgment.” Kesinger ex rel. Est. 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). “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)). “Summary judgment is improper, however, if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th

Cir. 2019) (quotation marks and citation omitted).

IV. Florida Administrative Code Rule 33-601.735

This case involves the application of Florida Administrative Code Rule

33-601.735, which states:

(1) For purposes of this rule, non-contact visiting is a

form of “in person” visitation and does not include

video visitation as defined in Rule 33-602.901, F.A.C.

(2) When the Institutional Classification Team (ICT)

determines that non-contact visiting is necessary in

order to maintain the security and good order of the

institution, the ICT shall make a recommendation to

the warden who shall approve or disapprove the

recommendation.

(3) The ICT shall consider the following factors in

determining whether to place an inmate in non-

contact status:

(a) Whether the inmate is a threat to the

security of the institution,

(b) The inmate’s and his or her visitors’

past behavior during visiting,

(c) The inmate’s disciplinary history

within the last five years involving drugs,

contraband, violence, or visiting policy

violations,

(d) Evidence or intelligence reports that

an inmate has possessed, sold, or

transferred drugs, alcohol, or money,

(e) Whether the inmate has a confirmed

membership in a security threat group,

and

(f) A positive drug or alcohol urine test.

(4) The ICT shall review non-contact visiting status a

minimum of every six months to evaluate whether

changes are necessary based upon the following:

(a) The seriousness of the incident or

circumstances resulting in placement in

non-contact status,

(b) The inmate’s history of repeated

placement on non-contact status,

(c) The inmate’s overall adjustment

history since placement in non-contact

status, and

(d) The inmate’s disciplinary history

during the last year involving drugs,

contraband, violence, or visiting policy

violations.

Fla. Admin. Code R. 33-601.735(1),(2),(3)(a)-(f),(4)(a)-(d).

V. Evidence

Gill was first in FDOC custody from 1987 to 1998 and during that time,

prison officials found him guilty of conduct resulting in seventy-two

disciplinary reports (DRs).6 Motion Ex. S at 5. Because of the “excessive”

number of DRs, officials placed Gill on close management one (CMI) status in

July 1996 and he remained on CMI until his release in August 1998. Motion

Ex. W at 1. CMI is the most restrictive of the close management designations

and inmates on CMI status are limited to non-contact visitations. Fla. Admin.

Code R. 33-601.800(11)(b)6d.

Gill reentered FDOC custody and began serving a life sentence at

Northwest Florida Reception Center in July 2001. Motion Exs. D at 21-22; W

at 1. On July 24, 2001, Gill murdered his cellmate.7 Motion Ex. W at 1.

Immediately after the murder, officials transferred Gill to FSP, and Gill has

been housed at either FSP or UCI since that date. Motion Ex. W at 1. In August

2001, officials at FSP placed Gill on CMI based on his involvement in his

cellmate’s homicide. Id. Gill remained on CMI from August 2001 until 2004.

Motion Ex. D at 55-58.

Between December 2001 and May 2019, Gill accrued 196 DR convictions.

Motion Exs. C, X. On July 27, 2004, while housed at UCI, the ICT, for the first

time, recommended Gill be placed on non-contact visitation status under Rule

6 Gill’s seventy-two DRs from 1987 through 1998 are not part of the record, but

Gill does not dispute this fact. See Resp. at 2.

7 Gill ultimately entered a guilty plea to first degree murder of his cellmate

and the state court (Union County, Florida) sentenced Gill to death in 2006. Motion

Ex. A at 13-38.

33-601.735. Supp. Resp. Ex. B at 2; Motion Ex. D at 55-58. On that date, the

ICT sent Gill a written notice advising of its recommendation to place him on

non-contact visitation status based on Gill obtaining a “Disciplinary Report for

(9-26) Refusing to submit to substance abuse testing.” Supp. Resp. Ex. B at 2.

In his deposition, Gill testified that the warden approved the ICT’s

recommendation in July 2004, and he has remained on non-contact visitation

status since that approval. Motion Ex. D at 55-58.

The ICT conducted a six-month review of Gill’s non-contact status in

January 2005 and according to the ICT log, officials continued Gill’s non-

contact status. Motion Ex. W at 11. In May 2005, Gill received a DR conviction

for attempting to stab an officer with a homemade knife. Motion Ex. C at 5.

Officials immediately transferred Gill to FSP and placed him on maximum

management (MM) status. Motion Ex. W at 5-6. MM “refers to a temporary

status for an inmate who, through a recent incident or series of recent

incidents, has been identified as being an extreme security risk to the

Department and requires an immediate level of control beyond that available

in confinement, close management, or death row.” Fla. Admin. Code R. 33-

601.820(1)(b). The ICT must review an inmate’s MM status at least monthly

and inmates on MM are limited to non-contact visitations. Fla. Admin. Code

R. 33-601.820(6)(a); Fla. Admin. Code R. 33-601.733(5).

In August 2005, after providing Gill notice and an opportunity to

participate, the ICT at FSP (which included Defendant McClellan) conducted

a classification review hearing, recommended Gill continue MM status, and

suggested he receive a CMI classification because of “his assaultive behavior,

attempt[] to stab officer at UCI and extensive history of disruption of the

institution.” Motion Ex. W at 6. The State Classification Office approved the

ICT’s recommendation. Id.

The ICT log indicates Gill then remained on MM status between August

2005 and January 2009. Motion Ex. W at 45-54. The ICT log includes no record

of an ICT classification hearing between September 2005 and November 2006.

See generally Motion Ex. W. But a review of Gill’s state court criminal docket

in State v. Gill, No. 63-2002-CF-0028-A (Fla. 8th Cir. Ct.), shows that the state

court entered several transport orders between June 2005 and June 2006 for

Gill to participate in his capital sentencing proceedings.8 The state court

conducted part of Gill’s penalty phase hearing on September 30, 2005, and

sentenced Gill to death in open court on June 30, 2006. Id. Gill was present for

both hearings. Id.

8 The Court takes judicial notice of Gill’s state court docket. See McDowell Bey

v. Vega, 588 F. App’x 923, 927 (11th Cir. 2014) (holding that district court did not err

in taking judicial notice of the plaintiff’s state court docket when dismissing § 1983

action); see also Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket

sheets are public records of which the court could take judicial notice.”).

The ICT log shows that between December 2006 and November 2008,

the ICT at FSP (which sometimes included McClellan) conducted monthly

evaluations of Gill’s classification status and each month recommended Gill

remain on “status of [MM] to maintain the safety and security of the

institution.” Motion Ex. W at 45-53. And each month, the regional director

approved Gill’s continued placement on MM. Id.

On December 8, 2008, the ICT conducted another monthly review and

recommended Gill be released from MM status. Id. at 53. The ICT explained,

“inmate placed on [MM] on 5-25-05 due to his att[]empted assault on staff at

UCI . . . . [Gill] has received 74 [DRs] since his placement on 5-25-05. Several

of these assaults were on staff and threats towards staff. His last [DR] was on

1-4-2008 for assault/att/co. attempted to throw an unknown substance on a

correctional officer.” Id. at 53. The ICT stated, however, that because Gill had

been granted property privileges and yard privileges with no issue, it

recommended release from MM. Id. Officials approved the ICT’s

recommendation and released Gill from MM on January 26, 2009 and moved

Gill to “death row/solid door housing.” Id. at 54. “Death row visits shall be

contact visits unless security concerns indicate that a non-contact visit is

necessary, in which case the non-contact visit shall be approved by the warden

in advance.” Fla. Admin Code R. 33-601.830(7)(l).

In July 2009, classification officials (including McClellan) placed Gill in

administrative confinement (AC) because Gill obtained five DR convictions

between May and June 2009, resulting in Gill receiving 135 days of

disciplinary confinement with a completion date of October 8, 2009. Id. at 57.

AC “refers to the temporary separation of an inmate from inmates in general

population in order to provide for security and safety until such time as a more

permanent inmate management decision process can be concluded . . . .” Fla.

Admin. Code. R. 33-602.220(1)(a). “[A]ll visits for inmates in [AC] must be

approved in advance by the warden or designee. . . . Those inmates who are a

threat to the security of the institution shall be denied visiting privileges.” Id.

at R. 33-602.220(5)(i). In October 2009, Gill suffered an aneurysm and was

briefly transferred to the Reception and Medical Center (RMC). Motion Ex. D

at 74-75; Motion Ex. W at 58. On October 16, 2009, officials at RMC

documented Gill as a “[MM] inmate-death row,” conducted “an informal

hearing,” and advised Gill that he would remain in AC pending a classification

review as “housing Gill [] in open population could pose a threat to the security

and orderly operation of [the] institution.” Motion Ex. W at 58.

Gill soon returned to FSP, and on November 30, 2009, the ICT (which

included McClellan) reviewed Gill’s non-contact visitation status and

recommended Gill remain on non-contact visitation status under Rule 33-

601.735 “due to [Gill] being [a] security threat.” Motion Ex. W at 36. The ICT

conducted additional reviews of Gill’s non-contact visitation status in June

2010, November 2010, June 2011, January 2012, July 2012, February 2013,

August 2013, February 2014, August 2014, January 2015, July 2015, January

2016, July 2016, and January 2017.9 Id. at 36-38. Defendant Palmer, as

warden of FSP, approved the ICT recommendations between July 2012 and

January 2017. Id. at 36-38; Motion Ex. S.

Between February 2013 and September 2018, FSP officials approved,

and Gill received, thirty-two visits from his mother, father, and pen pals.

Motion Ex. Y at 1-4. Also, between 2017 and 2018, the acting warden at FSP

(including Defendant Reddish) approved special contact visitations between

Gill and his mother and father. Motion Ex. D at 18, 37; Motion Ex. U at 1-2;

Supp. Resp. at 5. According to Gill, during his special contact visits, he created

no problems and demonstrated exemplary behavior. Motion Ex. D at 37. In

support of that argument, Gill provides declarations from nine death row

inmates – Eriese Tisdale; Paul Beasley Johnson; James A Duckett; Randall

Deviney; Kim Jackson; Chadwick Willacy; Ronald Wayne Clark, Jr.;

9 The ICT log also shows that the ICT recommended Gill be placed in

disciplinary confinement several times in 2010 and 2011. Motion Ex. W at 15. And

ICT suspended Gill’s visitation under Florida Administrative Code Rule 33-601.731

in January 2011 and again in February 2011 for Gill’s new DR convictions for spoken

threats and obscene or profane act. Id. at 17, 60; Motion Ex. C at 12.

Fotopoulous Konstantinos; and Dwight Eaglin. Supp. Resp. Ex. D; Second

Supp. Resp. Ex. A at 7-15. The declarations are identical and each state:

[I]n the year 2017 and/or 2018, I visited with

family, friends and/or children. On 1 (one), or more

occasions, and in no shape, form or fashion, was

Ricardo Gill, a threat, to me, family, and/or children,

while he was at visit with his visitors.

In fact, he showed exemplary positive behavior,

that I’ve not seen since his arrival to death row in

January, 2009.

Supp. Resp. Ex. D; Second Supp. Resp. Ex. A at 7-15.

Despite Reddish’s approval of special contact visits with his mother and

father, Gill testified he otherwise remained on non-contact visitation status

under Rule 33-601.735. Motion Ex. D at 37-39. And the ICT log shows that

FSP’s ICT (including McClellan) conducted six-month hearings and

recommended the continuation of Gill’s non-contact status based on his

extensive disciplinary history in January 2018, July 2018, and January 2019.

Motion Ex. W at 30. In February 2019, Gill received a DR conviction for

attempting to conspire with an outside party, through a JPAY email, to obtain

the address and an aerial view photograph of a classification officer’s home.

Motion Ex. L at 4-7.

On April 30, 2019, officials transferred Gill to UCI where he remains

housed. Motion Ex. D at 35-36. Gill testified in his deposition that after his

transfer, UCI officials refused to allow Gill to continue special contact visits

with his parents. Motion Ex. D at 35-36. In May 2019, Gill received a DR

conviction for written threats Gill made in another JPAY email. Motion Ex. C

at 15; Motion Ex. L at 12. In that email, Gill wrote that when he learned his

visiting privileges at UCI would not improve, he got very angry and got the

urge to physically hit Defendant Knox. Motion Ex. L at 14. The ICT log shows

that the ICT at UCI (including Defendants Knox, Andrews, and Biascochea)

conducted a classification hearing in May 2019, and continued Gill’s non-

contact visitation status because of his threatening history and his April and

May 2019 DR convictions. Motion Ex. W at 26.

In October 2019, April 2020, October 2020, and April 2021, the ICT sent

Gill written notices stating, in relevant part:

Subject was continued [on non-contact visiting]

at his last review based on continued disciplinary

reports to include: 5/15/19, 1-3, Spoken Threats, in

accordance with 33-601.735. Subject has not received

any further disciplinary reports since the last one of

5/15/19. Subject has shown improvement as notable by

only receiving two DRs for the year of 2019, thus far.

He has been reviewed numerous times for non-

contact visiting and continuation has always been

appropriate due to the safety and security of the

institution. Reinstatement of visits could further his

improvement.

Second Supp. Resp. Ex. D at 4-6. After each notice, the ICT (including

Defendants Knox, Andrews, and Biascochea) conducted a hearing and

recommended Gill’s continued placement on non-contact visitation status, and

the warden (Defendant Lamb) approved each recommendation “based on the

safety and security of the institution.” Motion Ex. W at 26. Gill provides three

more ICT notices dated September 15, 2021; March 7, 2022; and August 11,

2022, which all provide:

This notice is to advise you in writing of the

ICT’s recommendation to continue you in Non-Contact

Visiting Status due to safety and security concerns of

the institution. This continuation complies with F.A.C.

Rule 33-601.735.

. . . .

Supp. Resp. Ex. A at 4-6. Gill has not received a DR conviction in over two

years, with his May 2019 DR conviction being the last one he received. Motion

Ex. D at 69. And since his transfer, UCI officials have approved at least four

visits between Gill and his aunt, half-sister, stepmother, and pen pals. Motion

Ex. Y at 1.

Defendants McClellan, Palmer, and Reddish participated in Gill’s

classification reviews as members of the ICT at FSP. See generally Motion Ex.

W. In his declaration, McClellan stated:

In August of 2000, I was promoted to Senior

Classification Officer at [FSP]. In 2004, I was

promoted to Classification Supervisor at [FSP]. I was

transferred to [UCI] in September 2007 and returned

to [FSP] in March of 2008. In February 2014 I was

promoted to Assistant Warden at [FSP].

I have dealt with Mr. Ricardo Gill, DC #105559

since his arrival at [FSP] on July 24, 2001, in all

capacities from Senior Classification Officer,

Classification Supervisor and Assistant Warden until

his permanent transfer to [UCI] on April 30, 2019.

Mr. Gill was placed on non-contact visitation

due to being an institutional threat to security as

recommended by the [ICT] and approved by the

Warden in accordance with FAC 33-601.735(3)(a) and

(c) based on his threat to the security of the institution

and the inmate’s disciplinary history within the last

five years involving drugs, contraband, violence, or

visiting policy violations.

Since Mr. Gill’s transfer to UCI on April 30,

2019, I have not made any decisions concerning Mr.

Gill’s non-contact visitation status, nor do I have any

authority concerning his status. Mr. Gill’s non-contact

visitation status is determined by the ICT and Warden

where he is currently incarcerated.

. . . .

Motion Ex. Q (paragraph enumeration omitted).

In his declaration, Defendant Palmer explained that since 1990, he has

worked for several FDOC facilities including FSP and UCI, and he occasionally

participated in Gill’s classification decisions either as a member of the ICT at

UCI or as warden of FSP. Motion Ex. S at 1. Palmer stated:

From December 2003 through April 2004, I was

assigned to FSP as a Major and with oversight of death

row inmates, and during this period, Mr. Gill was

found guilty of the following seven disciplinary

reports:

(a) January 7, 2004 – destruction of state property;

(b) January 18, 2004 – disorderly conduct;

(c) February 3, 2004 – disobeying order;

(d) March 5, 2004 – disrespectful to officials;

(e) March 13, 2004 – assault or attempted assault;

(f) March 13, 2004 – assault or attempted assault; and

(g) March 13, 2004 – defacing state property.

From April 2004 through June 2005, I was the

Colonel and Head of Security for UCI and during this

period, Mr. Gill was found guilty of the following

sixteen disciplinary reports:

(a) May 26, 2004 – disrespectful to officials;

(b) June 21, 2004 – possession of weapons;

(c) June 21, 2004 – refusal to submit to substance

abuse test;

(d) August 6, 2004 – disorderly conduct;

(e) October 5, 2004 – possession of unauthorized

beverage;

(f) October 5, 2004 – refusal to submit to substance

abuse test;

(g) October 29, 2004 – disobeying order;

(h) December 18, 2004 – possession of unauthorized

beverage;

(i) January 17, 2005 – disrespectful to officials;

(j) January 21, 2005 [–] disobeying order;

(k) February 3, 2005 – spoken threats;

(l) February 25, 2005 – disobeying order;

(m) April 29, 2005 – unarmed assault;

(n) May 2, 2005 – arson or attempted;

(o) May 2, 2005 – tampering with safety device; and

(p) May 14, 2005 – assaulted or attempted.

Pursuant to Chapter 33-601.735(3) of the

Florida Administrative Code, I (or my designee), as the

Colonel and Chief of Security for UCI (April 2004

through June 2005), reviewed and recommended Mr.

Gill’s continued placement on noncontact visitation

status on the following dates:

(a) August 12, 2004, and

(b) February 4, 2005.

From July 2012 through January 5, 2017, I was

the Warden of FSP and Mr. Gill was found guilty of

the following twenty-six disciplinary reports:

(a) August 12, 2013 – possession of contraband;

(b) December 5, 2013 – spoken threats;

(c) January 14, 2014 – disrespectful to officials;

(d) August 8, 2014 – disrespectful to officials;

(e) August 15, 2014 – disrespectful to officials;

(f) August 26, 2014 – spoken threats;

(g) October 13, 2014 – disobeying order;

(h) October 13, 2014 – tampering with a security

device;

(i) October 17, 2014 – lewd or lascivious exhibition;

(j) November 5, 2014 – spoken threats;

(k) November 6, 2014 – spoken threats;

(l) November 8, 2014 – spoken threats;

(m) November 10, 2014 – battery or attempted battery

on correctional officer;

(n) December 5, 2014 – disorderly conduct;

(o) December 5, 2014 – disorderly conduct;

(p) December 5, 2014 – disorderly conduct;

(q) December 19, 2014 – lewd or lascivious exhibition;

(r) January 27, 2015 – fraud or attempted fraud;

(s) May 2, 2016 – disobeying order;

(t) May 2, 2016 – spoken threats;

(u) May 12, 2016 – spoken threats;

(v) June 22, 2016 – spoken threats;

(w) June 28, 2016 – lewd or lascivious exhibition;

(x) July 20, 2016 – attempt to conspire;

(y) July 22, 2016 – spoken threats; and

(z) October 5, 2016 – attempt to conspire.

When I was the Warden at FSP and pursuant to

Chapter 33-601.735(3) of the Florida Administrative

Code, the ICT reviewed Mr. Gill’s non-contact status

every six months to evaluate whether changes to his

status [were] necessary based on [the factors in Rule

33-601.735(3).]

. . . .

Pursuant to Chapter 33-601.735(3) of the

Florida Administrative Code, I, as the Warden of FSP

(or my designee) approved the ICT’s recommendation

to continue Mr. Gill’s placement on non-contact

visitation status on the following dates:

(a) July 31, 2012;

(b) February 12, 2013;

(c) August 22-23, 2013;

(d) February12, 2014;

(e) August 7, 2014;

(f) January 22, 2015;

(g) July 16, 2015;

(h) February 13, 2015;

(i) April 15, 2015;

(j) June 12, 2015;

(k) August 10, 2015;

(l) October 5, 2015;

(m) January 19, 2016; and

(n) July 19, 2016

On said dates and for the reasons stated in [the

ICT log], the ICT recommended continuation of Mr.

Gill’s non-contact visitation status. As Warden, I had

the discretion to approve or disapprove [] the ICT’s

recommendations, and for the reasons stated in this

declaration, I approved the ICT’s recommendations.

Mr. Gill has been permitted non-contact visits. Mr.

Gill’s placement on noncontact visitation status is due

to concerns for public, staff, and inmate safety in the

contact setting. Mr. Gill repeatedly violated the trust

of prison officials through disciplinary infractions that

qualified for non-contact visitation status, and he

continuously displayed a negative adjustment that

affected our ability to regain his trust during my

periodic reviews of Mr. Gill’s case, which resulted in

continued placement non-contact visitation status.

Mr. Gill has a violent history, pre-incarceration

(murder) and postincarceration, including the murder

of his cellmate three days after commencing the

sentence for his first murder. Mr. Gill was found guilty

of 196 disciplinary reports from 2001 through the

present, and an additional 72 disciplinary reports for

his previous incarcerations with FD[O]C from 1987 to

1998. Mr. Gill displays a pattern of negative

adjustment that warranted continuation in non-

contact visitation status.

While serving as the Warden at [FSP] and

performing rounds in Mr. Gill’s housing and my

interactions with him during the ICT review periods,

Mr. Gill did not appear remorseful or believable,

adding to hesitancy in restoring our trust to return

him to a contact visitation status. Mr. Gill’s pattern of

negative adjustment jeopardized the health and safety

of others. Mr. Gill’s continued placement on non-

contact visitation status was not a punitive action but

in line with the correctional system’s mission of public,

staff, and inmate safety. Mr. Gill appeared to be a clear

and present danger that warranted his incapacitation,

while incarcerated, in a non-contact visitation status,

in an effort to prevent future crimes/offenses, while

protecting the rights and privileges of others.

Since January 6, 2017, through the present, I

was the Assistant Regional Director of Institutions for

Region II, and am presently the Director of

Institutions of Region II, which includes UCI where

death row inmates are housed, including Mr. Gill.

Pursuant to Chapter 33-601.735 of the Florida

Administrative Code, Mr. Gill’s placement on non-

contact visitation status rests with the institution

where Mr. Gill is housed, and his non-contact status is

reviewed every six months by the ICT, which the

warden of UCI can approve or disapprove.

. . . .

Motion Ex. S (paragraph enumeration and exhibit citations omitted). Palmer

no longer participates in Gill’s six-month reviews, but explained:

Inmate Gill’s predictably negative, violent,

assaultive, lewd and lascivious, and threatening

behavior, that has compromised agency trust on not

one but multiple occasions, has made any decision to

restore contact visitation privileges a very difficult

decision for any [ICT] and Warden to make. The ICT’s

goal is to return inmate Gill to a less restrictive status

as soon as it is safe to do so. Inmate Gill is encouraged

through time, to continue to put distance between who

he has proven to be in the past, and who he says he is

now, and regain the trust of those constitutionally

charged with his care, custody and control, and the

safety and well-being of others.

Motion Ex. T at 5-6.

In his declaration, Defendant Reddish stated:

From March 2017 through February 2020, I was

the Warden of FSP. Since February 2020 through the

present, I am the Warden of Lawtey C.I.

Prior to becoming the warden of FSP, Mr. Gill

had been permitted contact visits only with his

parents, and I had the discretion to continue or

discontinue that practice. I decided to continue contact

visits with his parents, however, I was not required to

by any rule or law. Mr. Gill may be permitted special

visits pursuant to Ch. 33-601.733, Fla. Admin. Code.,

with “special approval” at the Warden’s discretion.

I have no authority to order the warden of [UCI]

or any other correctional institution to provide contact

visits with Mr. Gill’s parents. That decision is solely

within the authority of the ICT and the warden of the

institution where Mr. Gill is presently incarcerated.

. . . .

Motion Ex. U at 1-2 (paragraph enumeration omitted).

After Gill’s April 30, 2019 transfer to UCI, Defendants Knox, Andrews,

Biascochea, and Lamb participated in reviewing and continuing Gill’s non-

contact visitation status. According to Defendant Knox:

From October 2016 to the present, I am an

Assistant Warden at [UCI].

As an Assistant Warden on the ICT and

pursuant to Chapter 33-601.735(3) of the Florida

Administrative Code, the ICT reviewed Mr. Gill’s non-

contact status every six months to evaluate whether

changes to his status are necessary based on the

[factors in Rule 33-601.735(3).]

. . . .

On May 9, 2019, October 31, 2019, and April 21,

2020, I was on the ICT that reviewed Mr. Gill’s status,

and in accordance with Chapter 33-601.735(3), the

ICT elected to continue Mr. Gill’s non-contact

visitation status based on his extensive violent history

that involves threats and assaults on inmates and

staff.

On February 12, 2019, Mr. Gill attempted to

conspire to obtain the addresses and aerial plans for

the homes of classification officers. Mr. Gill also

stated, “I can take 16 other lives and they can’t stop

me.” Mr. Gill wrote an email in reference to an email

response I sent that he “got very hot inside and wanted

to slap the shit out of [me] the next time [I] walked by

[his] cell.” Mr. Gill’s actions indicate an inability to

control his violent temper and feelings, and his

continued placement on non-contact visitation status

is justified by Mr. Gill’s actions and statements.

Mr. Gill’s last DR was for spoken threats against

me on May 15, 2019. [A]nd although Mr. Gill has not

received a DR for over two years and seven months, he

remains dangerous and violent. His email proves that

he has not gained control over his violent feelings, and

given an opportunity, I sincerely believe Mr. Gill

would act on them. It was my job on the [ICT] to weigh

the facts against the risks and make a decision based

on Mr. Gill’s history and the factors in Chapter 33-601.

735(3).

Mr. Gill has consistently proven over and over

that he is violent, dangerous, and should not be

permitted in a contact visitation setting. Mr. Gill has

been in FD[O]C custody twice: (1) December 30, 1986,

through August 7, 1998, convicted of 72 DRs; and (2)

July 20, 2001, through the present, and convicted of

196 DRs.

Mr. Gill’s two periods of incarceration with

FD[O]C, as of December 28, 2021, totals 32 years and

16 days. Mr. Gill’s total incarcerated time of 11,704

days versus the 958 days since May 15, 2019 without

a DR totals 8.2% of his total incarceration time, which

is [] comparatively a small time period to be without a

DR. Since I have not been on the ICT after April 21,

2020, I do not have personal knowledge as to why ICT

has maintained Mr. Gill’s placement on non-contact

visitation.

. . . .

Motion Ex. L at 1-2 (paragraph enumeration and exhibit citations omitted).

In her declaration, Defendant Biascochea stated:

In July 2016, I transferred to [FSP] as a

Lieutenant. On October 20, 2017, I was promoted to

Captain at [UCI]. On November 30, 2018, I was

promoted to Major at UCI. On December 4, 2020, I was

promoted to Colonel at Lowell Correctional Institution

where I am currently assigned to and have the same

rank.

When I was assigned to FSP, my only

interactions with Ricardo Gill, DC# 105559, w[ere]

when I conducted my rounds. When assigned to UCI,

I interacted with Mr. Gill while also conducting rounds

and by being a member of the [ICT], which periodically

reviews Mr. Gill’s non-contact visitation status.

. . . .

When I was assigned to FSP from July 2016

through October 19, 2017, I was not on the ICT and

my duties did not include any responsibility nor

authority to recommend, place, or remove Mr. Gill to

or from non-contact visitation or contact visitation

status. During my tenure at FSP, Mr. Gill was

convicted of [ ] ten disciplinary reports[.]

. . . .

When I was assigned to UCI as a Major and

pursuant to Chapter 33-601.735(3) of the Florida

Administrative Code, the ICT, which included myself,

reviewed Mr. Gill’s non-contact status every six

months to evaluate whether changes to his status are

necessary based on [the factors in Rule 33-601.735(3).]

During my tenure at UCI as a Major from

November 30, 2018, through December 3, 2020, Mr.

Gill was convicted of the following two disciplinary

reports:

(a) February 21, 2019 – attempt to conspire; and

(b) May 15, 2019 – spoken threats

Pursuant to Chapter 33-601.735(3) of the

Florida Administrative Code, the ICT, which included

myself (except on January 14, 2019), reviewed Mr.

Gill’s noncontact visitation status on the following

dates:

(a) January 14, 2019;

(b) May 9, 2019;

(c) October 31, 2019;

(d) April 21, 2020; and

(e) October 14, 2020.

On said dates and for the reasons stated in the [ICT

log], the ICT elected to continue Mr. Gill’s non-contact

visitation status.

When at FSP and UCI . . . , my recollection of

Mr. Gill is that he continuously made verbal threats

during my (and others) rounds towards the prison

administration, which did not indicate a positive

change in his attitude and behavior to be considered

for contact visitation.

. . . .

Motion Ex. H (paragraph enumeration and exhibit citations omitted).

In his declaration, Defendant Andrews explained he has been an FDOC

official for over sixteen years and has been the death row classification officer

at UCI for the past five-and-one-half years. Motion Ex. F at 1. According to

Andrews:

My interactions with Ricardo Gill, DC# 105559

occurred since his transfer to UCI on April 30, 2019,

and in my capacity as a Classification Supervisor,

[ICT] member, and Duty Warden. I make weekly

rounds walking through death row. The interactions I

have had with inmate Gill have been limited to cordial

greetings.

Mr. Gill transferred to [UCI] on non-contact

visitation status from his previous institution on April

30, 2019 . . . based upon his murder of a cellmate in

2001 and his lengthy history of assaulting staff,

assaulting other inmates, and threatening staff

members. He has a documented history on his current

prison commitment (last 20 years) of over 30 incidents

of battering staff (throwing urine/feces, stabbing,

spitting), over 30 incidents of threatening harm to

staff or other inmates, and numerous incidents of lewd

and lascivious acts towards female staff members. Not

long after his arrival at [UCI] he made a threat to slap

AW Knox on May 15, 2019. This was in line with his

established pattern of behavior and warranted the ICT

continuing his non-contact status at the periodic six-

month reviews pursuant to Chapter 33.

The ICT at [UCI] has continued inmate Gill’s

non-contact status at subsequent six-month reviews

based upon his well-documented history of extreme

violence towards staff and females as cited above. It is

our correctional judgment that going a couple years

without a disciplinary incident does not erase the

preceding dozens and dozens of incidents of

violence/threats of violence to staff members, other

inmates, and females. Contact visitation is a privilege

that death row inmates enjoy without mechanical

restraints or barriers from one another or from the

visitors present in the visitation area. If the ICT were

to reinstate the contact visitation privileges of inmate

Gill, that decision could place the officers and visitors

in very real potential of danger based upon inmate

Gill’s established volatility. Any institutional

leadership member takes serious[ly] the decision to

place visitors and staff at risk of danger and are very

cautious in doing so.

. . . .

Motion Ex. F (paragraph enumeration omitted). Andrews also stated he has

never worked at FSP and does not know why FSP permitted Gill contact visits,

but he is not bound by the discretionary actions of FSP or its leadership. Motion

Ex. G at 2-3.

Defendant Lamb asserted he has been an FDOC officer since 1994 and

has “held every correctional officer rank . . . .” Motion Ex. M at 1. According to

Lamb:

Since February 2020, I have been the Warden of

[UCI], where Mr. Gill DC# 105559 is presently housed

in the death row wing.

When I started as Warden of [UCI], Mr. Gill was

already on noncontact visitation status. Mr. Gill has

demonstrated a history of violent behavior that

includes violence towards those staff in a supervisory

capacity (See 11/25/99 conviction for two counts of

battery on a Detention Facility Employee) and 196

DRs. After being convicted and incarcerated for

murder, Mr. Gill murdered another inmate for which

he received a death sentence. In May 2019 Inmate Gill

was found guilty of a disciplinary report for threats

against staff in which he ma[de] threatening

statements about Assistant Warden Tifani Knox who

is still assigned to [UCI]. These threats against staff

have been taken very seriously based on this

inmate[’]s history and out of an abundance of caution

Mr. Gill remained on noncontact visitation. If allowed

contact visits Inmate Gill would be in the open VP

unrestrained and in direct contact with staff, including

AWP Knox whom he has threatened, and other

inmates.

As Warden of [UCI], Chapter 33 gives me the

discretionary authority to approve or disapprove the

ICT’s recommendation for Mr. Gill’s noncontact

visitation status. Given Mr. Gill’s history of violence

and threats of violence, I have approved Mr. Gill’s

continuation on non-contact visits. To be removed from

non-contact status, Mr. Gill needs to continue on a

trajectory of positive adjustment, and two and one-half

years of zero DRs, in light [o]f his lengthy time in

FD[O]C (over 32 years), is not a sufficient period of

time to determine whether Mr. Gill still presents a

danger to staff, inmates, and the general public in a

contact setting.

. . . .

Motion Ex. M (paragraph enumeration omitted).

In his declaration, Defendant Lindsey stated he began his career at FSP

in 1993 and remained there until 2013 when he moved to Marion Correctional

Institution. Motion Ex. O at 1. In May 2017, Lindsey became a colonel at UCI

where he remains. Id. According to Lindsey, as colonel at UCI, he interacts

with Gill when conducting his security rounds on death row, but he is not on

the ICT nor has he made any decisions about Gill’s non-contact status.10 Id.

Lindsey asserted that while he was assigned to FSP, he helped transport Gill

several times and stated Gill was generally compliant during these

interactions. Motion Ex. P at 1.

10 Although Lindsey stated in his declaration that he has not made any

decisions about Gill’s non-contact status, in Lindsey’s responses to Gill’s

interrogatories, he twice commented, “[m]y decisions to maintain [Gill’s] non-contact

status is based upon the relevant factors set forth in Chapter 33.” Motion Ex. P at 1-

2.

Defendant Inch stated he has never been a member of an ICT, nor has

he made any decisions about Gill’s contact or non-contact visitation status.

Motion Ex. J at 1. According to Inch, as of December 2021, he is no longer the

Secretary of the FDOC, but during his tenure, his duties primarily included

large-picture issues about ensuring the FDOC carried out its responsibilities

efficiently. Id. at 2. He explained that “[p]lacement or continuation on non-

contact status of any prisoner is not a decision [he] was ever involved in,” as

that decision is “solely within the authority of the [institution’s] ICT.” Id.

VI. Summary of Parties’ Arguments

In their Motion, Defendants argue they are entitled to summary

judgment because: (A) Gill failed to exhaust his administrative remedies; (B)

Defendants are entitled to qualified immunity; (C) Gill has failed to establish

a due process violation under the Fifth and Fourteenth Amendments; (D) part

of Gill’s claim is barred by the statute of limitations; (E) Gill has failed to

establish supervisory liability on behalf of Defendant Inch; (F) Gill is not

entitled to injunctive relief; and (G) Gill is not entitled to declaratory relief. See

generally Motion. In response, Gill argues he completed the FDOC’s three-step

grievance procedure to exhaust his administrative remedies. Resp. at 3. He

also asserts he has established a due process violation and Defendants are not

entitled to qualified immunity for their unconstitutional conduct. Id. at 4-10.

Gill further argues his claims are not barred by the statute of limitations as he

demonstrates a “continuing violation,” Defendant Inch personally participated

in violating Gill’s constitutional rights, and he is entitled to injunctive and

declaratory relief. Id. at 11-12.

VII. Discussion

A. Exhaustion

Defendants argue they are entitled to summary judgment because Gill

failed to exhaust his administrative remedies. Motion at 13-25. The Prison

Litigation Reform Act (PLRA) requires Gill to exhaust his available

administrative remedies before pursuing a § 1983 claim about prison

conditions. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect

to prison conditions under section 1983 . . . until such administrative remedies

as are available are exhausted.”); see also Woodford v. Ngo, 548 U.S. 81, 92-93

(2006) (noting that a prisoner must exhaust administrative remedies before

challenging the conditions of confinement, and concluding that the PLRA

demands “proper exhaustion”). But Gill need not “specially plead or

demonstrate exhaustion in [his] complaint[].” See Jones v. Bock, 549 U.S. 199,

216 (2007). Instead, the United States Supreme Court has recognized that

“failure to exhaust is an affirmative defense under the PLRA[.]” Id.

Importantly, exhaustion of available administrative remedies is “a

precondition to an adjudication on the merits.” Bryant v. Rich, 530 F.3d 1368,

1374 (11th Cir. 2008); see also Jones, 549 U.S. at 211. The Supreme Court has

instructed that while “the PLRA exhaustion requirement is not

jurisdictional[,]” Woodford, 548 U.S. at 101, “exhaustion is mandatory . . . and

unexhausted claims cannot be brought,” Pavao v. Sims, 679 F. App’x 819, 823

(11th Cir. 2017) (per curiam) (citing Jones, 549 U.S. at 211).11 Not only is there

a recognized exhaustion requirement, “the PLRA . . . requires proper

exhaustion” as set forth in applicable administrative rules and policies of the

institution. Woodford, 548 U.S. at 93.

Because exhaustion requirements are designed

to deal with parties who do not want to exhaust,

administrative law creates an incentive for these

parties to do what they would otherwise prefer not to

do, namely, to give the agency a fair and full

opportunity to adjudicate their claims.

Administrative law does this by requiring proper

exhaustion of administrative remedies, which “means

using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on

the merits).”

Id. at 90 (citation omitted). Indeed, “[p]roper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules[.]” Id.

Because failure to exhaust administrative remedies is an affirmative

defense, Defendants bear “the burden of proving that [Gill] has failed to

11 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36-2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

exhaust his available administrative remedies.” Turner v. Burnside, 541 F.3d

1077, 1082 (11th Cir. 2008). The Eleventh Circuit has articulated a two-step

process that the Court must employ when examining the issue of exhaustion

of administrative remedies.

In Turner v. Burnside we established a two-step

process for resolving motions to dismiss prisoner

lawsuits for failure to exhaust. 541 F.3d at 1082. First,

district courts look to the factual allegations in the

motion to dismiss and those in the prisoner’s response

and accept the prisoner’s view of the facts as true. The

court should dismiss if the facts as stated by the

prisoner show a failure to exhaust. Id. Second, if

dismissal is not warranted on the prisoner’s view of

the facts, the court makes specific findings to resolve

disputes of fact, and should dismiss if, based on those

findings, defendants have shown a failure to exhaust.

Id. at 1082-83; see also id. at 1082 (explaining that

defendants bear the burden of showing a failure to

exhaust).

Whatley v. Warden, Ware State Prison, 802 F.3d 1205, 1209 (11th Cir. 2015).

“Proper exhaustion demands compliance with an agency’s deadlines and

other critical procedural rules . . . .” Jones v. Bock, 549 U.S. 199, 216 (2007);

see Pavao v. Sims, 679 F. App’x 819, 823 (11th Cir. 2017) (“The prison’s

requirements, and not the PLRA, define the boundaries of proper exhaustion,

so ‘the level of detail necessary in a grievance to comply with the grievance

procedures will vary from system to system and claim to claim.’” (quoting

Dimanche v. Brown, 783 F.3d 1204, 1211 (11th Cir. 2015)). The only limit to §

1997e(a)’s mandate is the one baked into its text: An inmate need exhaust only

such administrative remedies as are ‘available.’” 136 S. Ct. 1850, 1862 (2016).

For an administrative remedy to be available, the “remedy must be ‘capable of

use for the accomplishment of [its] purpose.’” Turner, 541 F.3d at 1084 (quoting

Goebert v. Lee Cty., 510 F.3d 1312, 1322-23 (11th Cir. 2007)). In Ross v. Blake,

the Court identified three circumstances in which an administrative remedy

would be considered “not available.” 136 S. Ct. 1850, 1862 (2016). First, “an

administrative procedure is unavailable when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” Id. Next, “an administrative scheme might be so opaque that it

becomes, practically speaking, incapable of use.” Id. For example, the Eleventh

Circuit has recognized that an administrative remedy that “is unknown and

unknowable is unavailable.” Geobert, 510 F.3d at 1323. Finally, a remedy may

be unavailable “when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or

intimidation.” Ross, 136 S. Ct. at 1860.

State law “determines what steps are required to exhaust.” Dimanche v.

Brown, 783 F.3d 1204, 1207 (11th Cir. 2015); see also Jones, 549 U.S. at 218

(stating that “it is the prison’s requirements, and not the PLRA, that define

the boundaries of proper exhaustion”). In Florida, the FDOC provides an

internal grievance procedure for its inmates. See Fla. Admin. Code R. 33-

103.001 through 33-103.018. Generally, to properly exhaust administrative

remedies, a prisoner must complete a three-step sequential process. First, an

inmate must submit an informal grievance at the institutional level to a

designated staff member responsible for the specific problem. See Fla. Admin.

Code R. 33-103.005. If the issue is not resolved, the inmate must submit a

formal grievance at the institutional level. See Fla. Admin. Code R. 33-103.006.

If the matter is not resolved through formal and informal grievances, the

inmate must file an appeal to the Office of the FDOC Secretary. See Fla.

Admin. Code R. 33-103.007.

Here, Defendants do not dispute that Gill completed the FDOC’s typical

three-step internal grievance procedure. Motion at 13-25. Instead, they argue

Gill did not exhaust his administrative remedies because he failed to file a

Petition to Initiate Rulemaking (PIR) under section 120.54, Florida Statutes.

Id. at 16. According to Defendants, because Gill challenges the FDOC’s

administrative rule on non-contact visitation, “[t]he normal prisoner grievance

process alone” is “insufficient” to properly notify the FDOC about his claim. Id.

They assert that the PLRA requires exhaustion of all available administrative

remedies, and since filing a PIR is an available administrative remedy under

Florida law, Gill’s failure to avail himself of that remedy before initiating this

action renders his claims unexhausted and subject to dismissal. Id. at 25. In

support of this argument, Defendants submit the declaration of Lauren

Sanchez, an FDOC records custodian for PIRs, who declares that the FDOC

has no record of Gill ever filing a PIR. Motion Ex. E at 1.

In response, Gill argues he exhausted his administrative remedies

because he completed all three steps of the FDOC’s grievance procedure before

filing the Complaint. Resp. at 3. A review of the exhibits Gill submitted with

his Complaint supports his argument. See Doc. 1-2 at 1-15. Gill filed an

informal grievance (log # 212-1906-0251), see id. at 1; a formal grievance (log

# 1907-213-031), see id. at 10; an administrative appeal (log # 19-6-28870), see

id. at 12-14; and the institutional response to each grievance, see id. at 1, 11,

15. According to Gill, the FDOC’s internal grievance procedure explicitly

outlines the required three-step process for proper exhaustion and the FDOC’s

procedures do not mention filing a PIR. Id. at 4. Gill asserts that Defendants’

attempt to add a step is misleading as no reasonable inmate following the

FDOC’s internal procedure would ever know that filing a PIR was required. Id.

at 3. To that end, Gill appears to assert that if he needed to file a PIR to exhaust

his administrative remedies, omitting language referencing the need to file a

PIR renders that remedy unavailable. Id. at 3.

The Court finds Gill’s allegations and his attached grievances preclude

dismissal of this action at the first step of Turner. The Court proceeds to

Turner’s second step and makes specific findings to resolve the disputed factual

issues related to exhaustion. In doing so, the Court looks to Davis v. Inch, 3:17-

cv-820-MMH-PDB, 2019 WL 1400465, at *3-*9 (M.D. Fla. Mar. 28, 2019), in

which the Court rejected the same argument Defendants make now. As the

Court explained, the Eleventh Circuit has repeatedly stated that the applicable

prison grievance system governs the issue of exhaustion, not the PLRA. See

Dimanche, 783 F.3d at 1211 (“‘[I]t is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.’”) (quoting Jones, 549

U.S. at 218); see also Gipson v. Renninger, 750 F. App’x 948, 951 (11th Cir.

2018) (“To determine ‘proper exhaustion’ in prisoner civil rights actions, courts

look to the requirements of the ‘prison grievance system.’ A prisoner must

comply with rules ‘defined not by the PLRA, but by the prison grievance

process itself.’”) (internal citations omitted); Bingham v. Thomas, 654 F.3d

1171, 1175 (11th Cir. 2011) (noting that prisoners must comply with the

grievance procedures adopted by the state department of corrections before

filing a § 1983 action); Sims v. Nguyen, 403 F. App’x 410, 412 (11th Cir. 2010)

(same); Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (noting that

“when a state provides a grievance procedure for its prisoners, as Georgia does

here, an inmate . . . must file a grievance and exhaust the remedies available

under that procedure”) (emphasis added).

Here, the PIR provision that Defendants seek to engraft into the PLRA

exhaustion process is not part of the FDOC’s internal grievance procedure,

rather it is part of Florida’s statutory Administrative Procedure Act. See

generally Fla. Stat. Chapter 120. The FDOC’s inmate grievance procedure in

Florida Administrative Code Rule 33-103 contains no mention of filing a PIR

nor does it reference Florida’s Administrative Procedure Act. Gill completed

the applicable three-step process and he did not have to do anything more to

exhaust his administrative remedies. Thus, Defendants’ Motion is due to be

denied as to the contention that Gill failed to exhaust his administrative

remedies.

B. Due Process

Gill argues that Defendants’ actions of approving and continuing his

non-contact visitation status under Rule 33-601.735 for the past eighteen years

violate his due process rights under the Fifth and Fourteenth Amendments.

Complaint at 16-19. Defendants argue they are entitled to summary judgment

because the FDOC’s policies on visitation do not give rise to a liberty interest

in contact visitation. Motion at 34-35. They also assert that even if the FDOC’s

rules created a liberty interest in such visitation, Gill’s due process claim fails

because they have complied with all aspects of Chapter 33 when continuing

Gill’s non-contact status and his documented violent and threatening

disciplinary history justifies their decision.12 Id. at 37-38.

12 Defendants also appear to construe Gill’s Complaint as raising a substantive

due process claim. See Motion at 35 (citing Overton v. Bazzetta, 539 U.S. 129 (2003)).

But the allegations in the Complaint and his Response make clear that Gill is raising

only a procedural due process claim. See Resp. at 8.

“[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). Courts

“examine procedural due process questions in two steps; the first asks whether

there exists a liberty or property interest that has been interfered with by the

state[;] the second examines whether the procedures attendant upon that

deprivation were constitutionally sufficient.” Kentucky Dep’t of Corr. v.

Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted); see also

Wilkinson v. Austin, 545 U.S. 209, 221-22 (2005).

Liberty interests may arise either from the Due Process Clause or from

state law. Meachum v. Fano, 427 U.S. 215, 225-27 (1976). The Due Process

Clause does not provide an inmate with a liberty interest or right to “unfettered

visitation.” See Thompson, 490 U.S. at 460-61 (finding that “[t]he denial of

prison access to a particular visitor . . . is not independently protected by the

Due Process Clause”); Charriez v. Sec’y, Fla. Dep’t of Corr., 596 F. App’x 890,

893-94 (11th Cir. 2015) (holding district court did not err in granting summary

judgment as to procedural due process claim because the plaintiff did not have

liberty interest in unfettered visitation under the Due Process Clause). Thus,

even viewing the facts in the light most favorable to Gill, as the Court must,

he fails to show a violation of a liberty interest protected by the Due Process

Clause of its own force.

As a result, to establish a procedural due process violation, Gill must

show the FDOC’s rules create a liberty interest in contact visitations. To

determine whether the state has created a protected liberty interest, the

Supreme Court has directed that courts must focus on the nature of the

deprivation at issue. Sandin v. Conner, 515 U.S. 472, 481-83 (1995). In

evaluating the nature of the deprivation, the Court has instructed that state-

created liberty interests rising to the level of requiring due process protection

generally will be limited to “freedom from restraint which, while not exceeding

the sentence in such an unexpected manner as to give rise to protection by the

Due Process Clause of its own force, nonetheless impose [] [an] atypical and

significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Id. at 484 (internal citations omitted). That is to say, “the

touchstone of the inquiry into the existence of a protected, state-created liberty

interest in avoiding restrictive conditions of confinement is not the language of

the regulations regarding those conditions but the nature of those conditions

themselves” when compared to the typical conditions of incarceration.

Wilkinson, 545 U.S. at 223.

Here, Gill has failed to establish a state created liberty interest in

contact visitation because his long-term placement on non-contact visitation

status is not an atypical and significant hardship in relation to ordinary prison

life. Notably, “‘[v]isitation privileges are a matter subject to the discretion of

prison officials.’” Ortiz v. Sec’y, Dep’t of Corr., 156 F. App’x 132, 133 (11th Cir.

2005) (quoting McCray v. Sullivan, 509 F.2d 1332, 1334 (5th Cir. 1975)).13 And

“an inmates’ federal rights are not violated by the denial or limitation of

contact visits when jail administrators determine that such visits pose security

risks.” Id. Indeed, “[r]unning a prison is an inordinately difficult undertaking”

and deference is given to prison authorities charged with the administration of

those prisons. Turner v. Safley, 482 U.S. 78, 84-85 (1987) (citations omitted);

see also Cruz v. Beto, 405 U.S. 319, 321 (1972) (noting “that prison officials

must be accorded latitude in the administration of prison affairs, and that

prisoners necessarily are subject to appropriate rules and regulations).

“Discipline by prison officials in response to a wide range of misconduct falls

within the expected perimeters of the sentence imposed by a court of law.”

Sandin, 515 U.S. at 485. And placing an inmate on non-contact visitation

status under Rule 33-601.735 is an expected and permissible form of prison

discipline.

13 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),

the United States Court of Appeals for the Eleventh Circuit adopted as binding

precedent all decisions of the former United States Court of Appeals for the Fifth

Circuit that were rendered prior to the close of business on September 30, 1981.

Here, Defendants assert Gill’s initial placement and continuation on

non-contact visitation status is due to his documented violent and threatening

disciplinary history. Motion at 38-39. The undisputed evidentiary material

supports Defendants’ argument. The record shows Gill has 196 DR convictions

for an array of severe and assaultive offenses, and the ICT repeatedly

recommended Gill’s continued non-contact visitation status “due to [Gill] being

[a] security threat.” Motion Ex. W at 39. Among other offenses, Gill murdered

his cellmate, attempted to stab a correctional officer, often threw his own urine

and feces at those walking past his cell, verbally threatened staff, and

attempted to obtain the address and an ariel photograph of a correctional

officer’s home. See generally Motion Ex. X.

Gill admitted during his deposition that his disciplinary record shows a

history of violence. Motion Ex. D at 69. But he stated he has not received a DR

since May 2019 and is no longer a security threat. Id. at 70-71. He also argues

in his Complaint that officials do not actually consider him to be a security

threat because he is not “continuously segregated” and “is allowed open

recreation with 75 other inmates and has been allowed [c]ontact [v]isits on a

‘case-by-case basis.’” Complaint at 15. Gill testified that he is not housed in a

“heightened security cell” but has a typical “cell with just bars,” allowing him

to see and speak to officials and visitors who walk down the hallway. Motion

Ex. D at 64. He also “has day room accessibility with [six] other inmates for

[two] hours per week.” Supp. Resp. at 4. He contends, however, that his non-

contact visitation status poses an “atypical and significant” hardship because

other death row inmates “with similar charges and track records” are allowed

contact visits. Resp. at 9. But Gill offers no evidence of another death row

inmate who is permitted contact visits despite having 196 DR convictions

including murdering a cellmate and several violent acts against correctional

staff.

Defendants, on the other hand, offer a sworn statement from Defendant

Lindsey that “196 DRs for a death row inmate is unusually high, as death row

inmates are provided with many amenities that are not available to those in

gen. pop or in CM. Generally speaking, death row inmates are well-behaved to

maintain or keep those amenities that are not available to other prisoners.”

Motion Ex. P at 1. In response to Gill’s interrogatory asking why UCI officials

consider him a security threat when he has attended the recreation yard for

over two years without incident, Defendant Biaschocea responded, “Your

behavior throughout your incarceration has been unpredictable, and two years

in the rec yard without an incident may not be sufficient to remove your non-

contact visitation status.” Motion Ex. I at 2. In her sworn interrogatory

responses, Defendant Knox asserted Gill’s visitations with other inmates and

visitations with the public are “two different scenarios that must be evaluated

in a different way.” Motion Ex. K at 2. According to Knox, Gill being placed in

an open bar stock cell at UCI “has nothing to do with non-contact visitation,”

and she still considers him a threat to maintaining the safety and security in

the visiting park despite the type of cell he is housed in. Id.

To that end, according to the undisputed evidence, absent his non-

contact visitation status, there is no other condition or combination of

conditions demonstrating that Gill’s confinement differs from other similarly

situated inmates. And the Court cannot find that Gill’s denial of a particular

type of visitation, without more, establishes a restriction that is “atypical and

significant . . . in relation to the ordinary incidents of prison life.” Sandin, 515

U.S. at 484. Indeed, Gill’s non-contact visitation status does not prohibit all

visitations, rather it merely regulates the method of Gill’s visitations. The

undisputed evidence shows officials regularly approve non-contact visitations

for Gill and he enjoyed thirty-six visitation days between February 2013 and

February 2020. Motion Ex. X. And some of Gill’s visits that occurred between

2017 and 2018 were special contact visits with his mother and father. Motion

Ex. D at 17-18, 37. Although Gill has been under Rule 33-601.735’s non-contact

visitation status for a long time, the other aspects of his confinement are

similar to those experienced by other inmates. And there is no evidence that

the length of his non-contact status, under the circumstances of his extensive

disciplinary record labeling him a security threat, is arbitrary such that

different considerations might apply. Thus, Gill has failed to establish a liberty

interest in contact visitation.14 See, e.g., Henry v. Dep’t of Corr., 131 F. App’x

847, 849 (3d Cir. 2005) (finding permanent loss of contact visitation did not

satisfy Sandin requirement as “it simply regulated the manner of his visits”)

(emphasis in original); Poulin v. Jeter, No. 6:08-cv-299-Orl-31KRS, 2010 WL

3701384, at *11 (M.D. Fla. Sept. 15, 2010) (finding jail’s policy allowing non-

contact visits but prohibiting contact visits because jail lacked the “facilities or

manpower” did not violate a constitutional right).15

In any event, even if Gill’s non-contact visitation status poses an atypical

and significant hardship in which he has a protected liberty interest, the

undisputed evidence shows Gill has been afforded the minimum requirements

of due process. “When determining whether a plaintiff was denied due process,

[the Eleventh Circuit has] appl[ied] ‘a three-part balancing test in which

[courts] weigh the private interests at stake in a governmental decision, the

governmental interests involved, and the value of procedural requirements.’”

14 Gill also argues Florida Administrative Code Rule 33-601.731(a)4

establishes a liberty interest in contact visitation because it states “the suspension of

visiting privileges will be a significant detriment to the inmate . . . .” Resp. at 9. But

when determining if a state created liberty interest exists, “Sandin made clear that

we must consider [the] [p]laintiff’s conditions, not the existence or language of prison

regulations.” Turner v. Warden, GDCP, 650 F. App’x 695, 701 n.4 (11th Cir. 2016).

15 The Court notes that although decisions of other district courts are not

binding, they may be cited as persuasive authority. See Stone v. First Union Corp.,

371 F.3d 1305, 1310 (11th Cir. 2004) (noting that, “[a]lthough a district court would

not be bound to follow any other district court’s determination, the decision would

have significant persuasive effects.”).

Hale v. Sec’y, Dep’t of Corr., 345 F. App’x 489, 493 (11th Cir. 2009) (quoting

Sheley v. Dugger, 833 F.2d 1420, 1426 (11th Cir. 1987)).

First, the record demonstrates the ICT at FSP provided Gill with written

notice on July 27, 2004 informing him of its initial recommendation to place

Gill on non-contact visitation status under Rule 33-601.735 “due to [DR] for (9-

26), Refusing to submit to substance abuse testing.” Supp. Resp. Ex. B at 2.

Gill does not argue that the ICT failed to then hold a hearing after providing

its notice or that he was not allowed to participate in any initial proceeding.

The record shows the warden approved the ICT’s recommendation and Gill has

remained on non-contact visitation status under Rule 33-601.735 since that

July 2004 approval. Motion Ex. D at 61. Gill argues that refusing to submit to

a substance abuse test is not a valid offense qualifying him for non-contact

status under Rule 33-601.735(3); however, the record shows that the same day

Gill received the DR of refusing to submit to a substance abuse test, he also

received a DR conviction for possessing a weapon (a shank), which is a threat

to the institution’s security. Motion Ex. X at 76-78; see Fla. Admin. Code R. 33-

601.735(3)(a); see also O’Bryant v. Finch, 637 F.3d 1207, 1213-14 (11th Cir.

2011) (noting that due process merely requires there be some evidence in the

record that could support the conclusion reached by the disciplinary official).

But in this case, Gill is not primarily challenging the procedures

employed to initially place him on non-contact visitation status. Rather, he

attacks the procedures Defendants have used to continue his non-contact

visitation status for almost two decades. Although most cases that discuss

long-term disciplinary statuses typically involve harsher restrictions like an

inmate’s lengthy administrative segregation instead of a limitation on

visitation rights, the Eleventh Circuit has noted that dicta in Hewitt v. Helms,

459 U.S. 460, 477 n. 9 (1983), overruled on other grounds by Sandin, 515 U.S.

at 472, alludes to the type of process required for long-term prison restraints:

Prison officials must engage in some sort of periodic

review of the confinement of such inmates. This review

will not necessarily require that prison officials permit

the submission of any additional evidence or

statements. The decision whether a prisoner remains

a security risk will be based on facts relating to a

particular prisoner – which will have been ascertained

when determining to confine the inmate to

administrative segregation – and on the officials’

general knowledge of prison conditions and tensions,

which are singularly unsuited for “proof” in any highly

structured manner.

Sheley, 833 F.2d at 1426.

Here, the record reflects that Gill has been afforded due process as he

has received regular periodic reviews to ensure his retention on non-contact

visitation status is warranted. See generally Motion Ex. W. Gill argues the ICT

did not conduct the required six-month periodic reviews of his non-contact

visitation status for eleven and a half years – from July 19, 2005 to January

19, 2016. Complaint at 15. The record shows, however, that during that

timeframe, Gill’s visitation status was not only limited to non-contact under

Rule 33-601.735 but was also restricted because of the 130 DR convictions he

accumulated during that time and the resulting classification changes that, by

their own effect, limited his visitation. See Motion Ex. W.

Indeed, the ICT log shows that because Gill attempted to stab a

correctional officer, officials placed Gill on MM in August 2005, and he

remained on MM until January 26, 2009. Motion Ex. W at 45-53. Inmates on

MM are not eligible for contact visitations and must receive monthly

classification reviews, as opposed to Rule 33-601.735’s six-month reviews.

Although Gill’s monthly MM reviews are not at issue in this case, a review of

the record shows that officials regularly reviewed Gill’s MM status. Indeed,

while the ICT log includes no record of a classification hearing between

September 2005 and November 2006, the state court ordered officials to

transport Gill for several court appearances between June 2005 and June

2006, and thus he was not continuously in the FDOC’s custody during that

timeframe. The ICT log does show, however, that Gill received monthly

classification reviews starting in December 2006 until his release from MM in

January 2009. Motion Ex. W at 45-53.

Six months later, in July 2009 officials placed Gill in AC because he

obtained five DR convictions between May and June 2009. The ICT then

reviewed Gill’s non-contact visitation status in November 2009 and conducted

twelve more reviews between June 2010 and January 2016. Id. at 36-38.

Further, according to Defendant Palmer, he has “no reason to believe [Gill’s

six-month] reviews did not occur in accordance with the rule” between July

2005 and January 2016. Motion Ex. T at 2. And the ICT log supports that

statement.

In sum, officials provided Gill with written notice of his initial placement

on non-contact visitation status, and the record shows he has received and

continues to receive six-month periodic reviews of his non-contact status in

accordance with Rule 33-601.735(4). See Moton Ex. W at 26. The ICT has

always explained that Gill’s non-contact visitation status results from his

numerous major DR convictions and is imposed for the safety and security of

the facility. This undisputed evidence shows Gill received adequate due process

and thus Defendants’ Motion is due to be granted.16 See, e.g., Morefield v.

Smith, 404 F. App’x 443, 446 (11th Cir. 2010) (finding inmate who spent four

years in administrative segregation received all process due as prison gave him

notice, opportunity for rebuttal at initial hearing, and periodic reviews of his

status); see also Al-Amin v. Donald, 165 F. App’x 733, 739 (11th Cir. 2006)

16 In his Response, Gill, for the first time, challenges the validity of the two DR

convictions obtained in April and May 2019. Resp. at 6. But Gill cannot raise new

claims at the summary judgment stage, and thus the Court declines to consider that

argument. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir.

2004).

(finding inmate received minimum requirements of due process because he was

afforded periodic reviews of his confinement).

C. Supervisory Liability Claims

Because the Court finds no constitutional violation occurred, the Court

need not address Gill’s official capacity or supervisory liability claims. See

Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795, 821 (11th Cir. 2017)

(“There can be no policy-based liability or supervisory liability when there is

no underlying constitutional violation.”).

D. Statute of Limitations

Defendants argue that any portion of Gill’s claim involving conduct that

allegedly occurred before May 29, 2016 is barred by Florida’s four-year statute

of limitations. Motion at 40-41. The Court previously rejected this argument

when denying Defendants’ motion to dismiss, finding Gill adequately alleged

a “continuing violation” that may extend the limitations period. See Order

(Doc. 42). See, e.g., Johnson v. City of Warner Robins Ga., No. 5:15-CV-

419(CAR), 2018 WL 1095563, at *9-*15 (M.D. Ga. Feb. 28, 2018) (finding due

process claim based on four-and-one-half-year administrative segregation was

continuing violation for statute of limitations purposes). The Court rejects this

argument for the reasons already stated in that Order. See Doc. 42.

E. Remaining Arguments

Because the Court finds Defendants’ Motion is due to be granted as to

their argument that no constitutional violation occurred, the Court need not

address Defendants’ qualified immunity argument or Gill’s request for

declaratory or injunctive relief.

Therefore, it is now

ORDERED AND ADJUDGED:

1. Gills Motion to Compel Discovery (Doc. 97) is DENIED as

untimely filed.!7

2. Defendants’ Motion for Summary Judgment (Doc. 88) is

GRANTED in part and DENIED in part as stated herein.

3. The Clerk is directed to enter judgment in favor of Defendants

Inch, Palmer, Reddish, McClellan, Lamb, Knox, Andrews, Lindsey, and

Biascochea and against Plaintiff Gill; terminate any pending motions; and

close the case.

DONE AND ORDERED at Jacksonville, Florida, this 9th day of March,

2023.

MARCIA MORALES HOWARD

United States District Judge

Jax-7

C: — Ricardo Ignacio Gill, #105559

Omar J. Famada, Esq.

17 Gill filed his Motion to Compel on February 28, 2023, see Doc. 97, well after

the discovery deadline of March 18, 2022, see Doc. 78 at 3. Thus, Gill’s Motion to

Compel is untimely filed. Also, Gill seeks the “actual ICT board decisions,” Doc. 97 at

2; but the Court has considered the ICT log containing a summary of the ICT’s

decisions in ruling on Defendants’ Motion.

54