Petition for Writ of Certiorari — Hill v. Florida Department of Corrections

NO.

in the

Supreme Court

of the

United States

October Term, 1987

JESSE HILL,

Petitioner,

- US.

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

Gregg J. Ormond, Esquire

Lisk & Ormond, P.A.

200 Aragon Avenue

Coral Gables, Florida 33134

(305) 446-5500 .

Attorney for Petitioner

December, 1987

BEST AVAILABLE COPY

;

'

|

QUESTION PRESENTED

Whether a state agency’s common law

sovereign immunity is a defense to a federal

civil rights action brought pursuant to 42

U.S.C. §1983 and filed in state court.

TABLE OF CONTENTS

QUESTION PRESENTED .....60s00e eens cus

Soy i gi, rrr re err sre)

Poa) 3 tet rere war ere uy or

CLAS Lie LN VG Oe... och ka een eee

STATEMENT OF THE CASE...............

REASONS FOR GRANTING THE WRIT .....

I.

THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION OF THE

FLORIDA SUPREME COURT RAISES

IMPORTANT ISSUES OF FEDERAL LAW

WHICH HAVE NOT BEEN, BUT SHOULD

BE SETTLED BY THIS COURT.........

il

TABLE OF CONTENTS—Continued

Page

Il. THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION OF THE

FLORIDA SUPREME COURT CONFLICTS

WITH DECISIONS OF THIS COURT AND

OTHER FEDERAL COURTS WHICH

REQUIRE A STATE COURT TO APPLY

THE ENTIRE SCOPE OF THE FEDERAL

LAW WHEN ENTERTAINING A

FEDERALLY CREATED ACTION,

INCLUDING SECTION 1983 ACTIONS,

AND BECAUSE IT RAISES IMPORTANT

QUESTIONS OF DUE PROCESS AND THE

ROLE OF STATE COURTS ............ 14

I SCS 5 s'n's ig o's 4.6.c piv 0 0 00 0 0.08% 20

APPENDIX

Opinion of the Florida Supreme Court

ee A-1

Opinion of the Florida District Court of Appeal,

Third District (May 6, 1986) ............. A-16

Opinion of the Florida District Court of Appeal,

Third District on Motion for Rehearing and

Certification (June 17, 1986)............. A-20

ili

TABLE OF AUTHORITIES—Continued

Cases Page

Aitchison v. Raffiani,

708 F.2d 96 (3d Cir. 1983) .............. 16

Boddie v. Connecticut,

SS eee on 17

Brown v. Western Railway of Alabama,

ee Ey SE IS 6 oc Fk kh one cco ba be 15

Felder v. Casey,

139 Wis.2d 614, 408 N.W.2d 19, (1987),

cert. granted, 56 U.S.L.W. 3334 -

(U.S. Nov. 10, 1987) (No. 87-526)......... 13

Fetterman v. Univ. of Connecticut,

192 Conn. 539, 473 A.2d 1176

I ta Peto s bce eee naaad 11

Garrett v. Moore-McCormack, Co.,

ay Gls SP coos cto sce nde snes tar 14, 16

Gay v. State of Texas,

730 S.W. 2d 154 (Tex. App. 1987)........ 12

General Oil v. Crain,

et a ee ER ec arad woe d dco anaes 17, 18

Hampton v. City of Chicago,

484 F.2d 602, (7th Cir. 1973), cert. denied,

oP er ee 16

iv

TABLE OF AUTHORITIES—Continued

Cases Page

Hampton v. State of Michigan,

377 N.W. 2d 920 (Mich. App. 1985) ...... 10

Hans v.- Louisiana,

gk BD er oe ere 9

Johnson v. Railway Express Agency, Inc.,

Kapil v. Assn. of Pennsylvania State College, Etc.,

448 A.2d 717 (Pa. Cmwlth. 1982) ........ 11

Karchefske v. Dept. of Mental Health,

371 N.W. 2d 876 (Mich. App. 1985) ...... 10, 11

Kawananakoa v. Polyblank,

ee ey ID sc na Db bocce deweebe ss 11

Kristensen v. Strinden,

343 N.W. 2d 67 (N.D. 1983)............. 10

Lloyd v. Page,

474 So.2d 865 (Fla. lst DCA 1985)....... 9

Lowery v. Dept. of Corrections,

380 N.W. 2d 99 (Mich. App. 1985) ....... 10

Maine v. Thiboutot,

ee eee dg ok vee aewecadawn 10, 14, 18

TABLE OF AUTHORITIES—Continued

Cases Page

Martinez v. California,

eee So) eee 8, 9, 13, 14, 16

Merritt for Merritt v. State of Idaho,

108 Idaho 20, 696 P.2d 871 (1985) ....... 12

Mondou v. New York,

FR A ee 15

Monroe v. Pape,

kg Sr al a oe 17

Owen v. Independence,

ee es i 6 vo bbc ve ye Con bu Wh 11

Pyne v. Meese,

172 Cal. App. 3d 392, 218 Cal. Rptr.

87 (Cal. App. 3d Dist. 1985)............. 10

Quern v. Jordan,

— ook ao. rey 10, 11, 12

Testa v. Katt,

ee, CED. cu ba caceseuvseeaes 8, 14

Uberoi v. Univ. of Colorado,

The Fae GO4 Gioeee. TBBE) wc ccc ccc ccce 10

vi

TABLE OF AUTHORITIES—Continued

Miscellaneous Page

Note, Amenability of States to Section 1983 Suits:

Reexamining Quern v. Jordan,

62 Bost. U. L.Rev. 761 (1982) ............ 19

Steinglass, The Emerging State Court Section 1983

Action: A Procedural Review,

38 U. Miami L.Rev. 381 (1984) ........... 8,18

NO.

in the

Supreme Court

of the

United States

October Term, 1987

JESSE HILL,

Petitioner,

US.

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

The Petitioner, Jesse Hill, respectfully prays that

a writ of certiorari issue to review the opinion and

judgment of the Florida Supreme Court, entered in this

proceeding September 24, 1987.

OPINIONS BELOW

The opinion of the Florida Supreme Court affirming

in part and reversing in part the Florida District Court

of Appeal, Third District, is reported at 513 So.2d 129

(Fla. 1987) and is reprinted at pp. A-1 to A-15 of the

Appendix to this Petition.

The opinion of the Florida District Court of Appeal,

Third District, dated May 6, 1986, is reported at 490

So.2d 118 (1986) and is reprinted at pp. A-16 to A-19

of the Appendix to this Petition.

The opinion of the Florida District Court of Appeal,

Third District, on Motion for Rehearing and

Certification, dated June 17, 1987, is reported at 490

So.2d 118 (1986) and is reprinted at pp. A-20 to A-21

of the Appendix to this Petition.

The decision of the trial court to dismiss the civil

rights action was rendered orally during trial and no

written order was entered regarding the dismissal of

this count.

JURISDICTION

The Florida Supreme Court issued its opinion on

September 24, 1987, affirming the dismissal of the

petitioner’s civil rights claim by the Florida District

Court of Appeal, Third District.

a PRN

The jurisdiction of this Court to review the opinion

and judgment of the Florida Supreme Court is invoked

under 28 U.S.C. 1257 (3).

STATUTES INVOLVED

This case involves 42 U.S.C. Section 1983 (1982),

which provides in relevant part:

Every person who, under color of any statute,

ordinance, regulations, custom or usage, of any

State or Territory, or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress.

This case also involves the Eleventh and Fourteenth

Amendments of the United States Constitution, as well

as Article III of the Constitution.

The Eleventh Amendment of the United States

Constitution provides:

The Judicial Power of the United States shall

not be construed to extend to any suit in law

or equity, commenced or prosecuted against

one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign

State. ;

The Fourteenth Amendment of the United States

Constitution provides in section one:

All persons born or naturalized in the United

States and subject to the jurisdiction thereof,

are citizens of the United States and of the

— State wherein they reside. No State shall make

or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Article III, Section I states:

The judicial Power of the United States, shall

be vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish. The Judges, both

of the supreme and inferior Courts, shall hold

their Offices during good Behaviour, and shall,

at stated Times, receive for their Services, a

Compensation, which shall not be diminished

during their Continuance in Office.

STATEMENT OF THE CASE

In March of 1982 Jesse Hill was arrested for having

a revolver tucked in his pants, during a domestic dispute

with his father while he was in the home in which he

was living at the time. [Trial Transcript at page 362,

hereinafter abbreviated as follows, T. Tr. 362] The police

charged Hill with carrying a concealed firearm. The

~ orn en

Court accepted Hill’s plea of guilty to the charge and

on June 11, 1982, withheld adjudication and placed Hill

on twelve months non-reporting probation. [T. Tr. 379]

Non-reporting was a form of probation recognized in

Florida in which the individual did not have to report

regularly to a probation officer. Non-reporting probation

was imposed by Dade County Florida Circuit Judges

approximately 8% of the time in 1982. [T. Tr. 251].

On or about January 28, 1983, probation officer in

training, Dorothy MacEachern falsely swore to an

affidavit of probation violation, claiming Hill had

violated various conditions of his order of probation. [T.

Tr. 154-160] Consequently, a warrant was issued for the

arrest of Hill and he was arrested on February 18, 1983.

(T. Tr. 366] Hill was incarcerated for seven and one-half

days, before the error was discovered by the trial judge’s

clerk. [T. Tr. 164] During that time he suffered from

severe insomnia, was denied medical care and was

shoved by a guard, severely aggravating a pre-existing

neck injury. [T. Tr. 368-369] The expert testimony

established an additional 5 to 7 percent total disability

of the body as a whole as a result of this incident. [T.

Tr. 128-131]

This action was initiated by Hill through the filing

of a three-count complaint in the Circuit Court of the

Eleventh Judicial Circuit in and for Dade County,

Florida on November 18, 1984. The amended complaint,

filed April 2, 1985, sought damages against the

Department of Corrections of the State of Florida (DOC),

for false imprisonment, negligence and a violation of

Hill’s civil rights pursuant to 42 U.S.C. Section 1983.

[A-2].

During trial, the trial judge dismissed the civil

rights action and the case was submitted to the jury on

the negligence and false imprisonment claims. [A-2]. The

jury found the DOC liable and awarded $750,000.00 in

damages.

A timely appeal was filed by the DOC to the Third

District Court of Appeal and Hill cross-appealed the

dismissal of his 42 U.S.C. Section 1983 civil rights

action. [A-19].

The Third District Court of Appeal by opinion filed

May 6, 1986 held that the trial court erred in giving

the jury a misleading instruction and verdict form. The

court affirmed the finding of liability on the state law

claims but remanded the case to the trial court for a new

trial on damages for false imprisonment. The Court

furthermore affirmed the dismissal of the 42 U.S.C.

Section 1983 claim on the authority of Scoblow v. Ameri-

Manage, Inc., 483 So.2d 809 (Fla. 3d DCA 1986). [A-19].

By opinion filed June 17, 1986 the Third District,

on motion for rehearing and certification, certified the

following question to the Florida Supreme Court as one

of great public importance:

Has the State of Florida, pursuant to Section

768.28, Florida Statutes (1983), waived its

Eleventh Amendment and State common law

immunity and consented to suit against the

State and its agencies under U.S.C. Section

1983? [A-21].

On September 24, 1987, the Florida Supreme Court

approved that portion of the District Court decision

dismissing the Section 1983 action due to the defense

of state sovereign immunity, but quashed that portion

of the decision which ordered a new trial on damages,

finding that the use of the verdict form did not constitute

fundamental error and that the granting of relief by the

Third District on the basis of Fla.R.Civ.Pro. 1.540 was

improper. [A-14].

The Florida Supreme Court, in affirming the

dismissal of the Section 1983 action, agreed with Hill

that the Eleventh Amendment immunity to suits

granted to the states in federal courts is inapplicable

to an action in state court. Nevertheless, the court held

that since Congress, by enacting Section 1983, did not

intend to abrogate a state’s Eleventh Amendment

immunity from suits in federal courts, it logically

followed that Congress also did not intend to abrogate

the states’ immunity from Section 1983 actions brought

in state court. [A-6].

The Florida Supreme Court found support for this

finding in several other state court decisions which

essentially held that a state’s “traditional” sovereign

immunity should not be treated as being abrogated in

a federal cause of action filed in a state court without

a specific mandate of Congress to that end. The Court

does not go into a discussion of what this traditional

immunity involved or whether this traditional

immunity was applicable in the present case. In

addition, the Court did not address the issues of federal

law which this ‘case raised. Rather, it reached its

decision that the common law immunity of the state of

Florida and its agencies has not been abrogated by 42

U.S.C. Section 1983 without any definitive authority

to guide it.

REASONS FOR GRANTING THE WRIT

I.

THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION OF THE

FLORIDA SUPREME COURT RAISES

IMPORTANT ISSUES OF FEDERAL LAW

WHICH HAVE NOT BEEN, BUT SHOULD

BE SETTLED BY THIS COURT.

The decision of the Florida Supreme Court allowing

Florida to defeat a Section 1983 action by invoking

sovereign immunity, implicates an area of federal law

which has not been, but should be definitively settled

by this Court.

Over the past few years, state courts have seen a

dramatic increase in the number of Section 1983 actions

brought in their courts. Although no specific statistics

are available, the increase in reported state appellate

court opinions suggests that state court Section 1983

actions have become an important remedy. See

Steinglass, The Emerging State Court Section 1983

Action: A Procedural Review, 38 U. Miami L.Rev. 381,

435 (1984).

In Martinez v. California, 444 U.S. 277 (1980) and

Testa v. Katt, 330 U.S. 386 (1947), this Court has stated

that state courts enjoy concurrent jurisdiction with the

federal courts to hear a federal constitutional claim.

Where a claimant decides to bypass the federal courts

and bring a Section 1983 action directly in state court,

or where he is barred from the federal courts by the

Eleventh Amendment, this Court has held that a state

may hear the case. Martinez, 444 U.S. at 283, n. 7. See

also Lloyd v. Page, 474 So.2d 865 (Fla. App. lst DCA

1985) (concluding that Florida courts had concurrent

jurisdiction with federal courts to consider actions

pursuant to 42 U.S.C. 1983). The Court has, however,

never considered the question of whether a state must

entertain a claim under Section 1983. Martinez, 444 U.S.

at 283 n. 7.

As a result, state courts have been forced to deal

with the unique federal issues which arise when federal

claims are filed in state courts. This Court has addressed

the issue of state sovereign immunity in federal court

actions, deciding that the Eleventh Amendment

provides immunity for the states in such instances. Hans

v. Louisiana, 134 U.S. 1 (1890) (Eleventh Amendment

grants states immunity from suit by any person in

federal court). However, this Court has yet to develop

a framework for examining state restrictions on Section

1983 actions brought in state court. Consequently, state

courts have little guidance in this area and have

employed various methods of reasoning in reaching

their decisions.

Although this Court and several state courts have

clearly stated that the Eleventh Amendment is not

applicable to state court actions,' the Florida Supreme

Court and others have found an analogous immunity

which they say is available to states in state courts.

Lowery v. Dept. of Corrections, 380 N.W. 2d 99 (Mich.

App. 1985); Hampton v. State of Michigan, 377 N.W. 2d

920 (Mich. App. 1985); Karchefske v. Dept. of Mental

Health, 371 N.W. 2d 876 (Mich. App. 1985) (‘In

considering the policy supporting sovereign immunity

of the states from liability in their own courts, we find

a compelling analogy in the Eleventh Amendment, even

though the latter provision on its face governs the

federal judicial power.’’) (footnote omitted).

These state courts which allow a state to invoke

sovereign immunity in their own courts rely on the

existence of a “traditional” immunity generally enjoyed

by states.

'Uberoi v. University of Colorado, 713 P.2d 894 (Colo. 1986) (The

Eleventh Amendment is simply inapplicable to suits initiated in

state courts); Kristensen v. Strinden, 343 N.W. 2d 67, 72 n.4(N.D.

1983) (No Eleventh Amendment question is present when the

action is brought in state court); Maine v. Thiboutot, 448 U.S. 1

at 9, n. 7 (1980) (The Eleventh Amendment restrains “only the

Judicial power of the United States.”); but see, Pyne v. Meese, 172

Cal. App. 3d 392, 218 Cal.Rptr. 87, 91 n. 6 (Cal. App. 3d Dist. 1985)

(The United States Supreme Court has not yet decided the issue

of whether the holding in Quern is applicable to actions in state

courts, and we are unwilling to find the footnote in Thiboutot

dispositive.) Thus it is clear that there is a conflict among the states

as to whether the Eleventh Amendment immunity in Quern is

applicable to the states. It is interesting to note that the Florida

Supreme Court in the instant case agreed with the petitioner that

it was not, yet nevertheless still analogized to this Eleventh

Amendment immunity and found it applicable to the state court

action.

The Connecticut Supreme Court, in Fetterman v.

Univ. of Connecticut, 473 A.2d 1176 (Conn. 1984), held

that sovereign immunity would bar a Section 1983

action brought in state court against the State of

Connecticut. In so holding, the court relied upon

language in Owen v. Independence, 445 U.S. 622 (1980).

In Owen, this Court stated that “where the immunity

claimed by the defendant was well established at

common law at the time Section 1983 was enacted, and

where its rationale was compatible with thé purposes

of the Civil Rights Act, we have construed the statute

to incorporate that immunity.” Jd. at 638.

In Karchefske, the Michigan Court of Appeals stated

that it was persuaded to accept this Court’s statement

in Quern v. Jordan, 440 U.S. 332 (1979) that Congress

did not intend by the general language of Section 1983

to override the traditional sovereign immunity of the

states. See also, Kapil v. Assn. of Pennsylvania State

College, Etc., 448 A.2d 717 (Pa. Cmwlth 1982) (a state’s

traditional sovereign immunity, to the extent that the

state has preserved it, would also bar a Section 1983

action in the state’s own courts). This reliance on a

state’s “‘traditional” immunity may be misplaced when

the action is a federally created one.”

_?The “traditional” sovereign immunity to which these courts

refer developed over time. However, as Justice Holmes stated in

Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), “‘a sovereign

is exempt from suit, not because of any formal conception or

obsolete theory, but on the logical and practical ground that there

can be no legal right as against the authority that makes the law

on which the right depends.” Thus, where the sovereign that makes

the laws is not the particular state itself but another sovereign,

this rationale is inapplicable. In this case the sovereign making

the law is the United States, not the State of Florida and the

rationale does not apply. s

Similarly, where the purposes behind Section 1983 are

inhibited by application of the immunity doctrine, as they are in

the instant case, the language of Owen is inapplicable.

11

Similarly, the strong policy reasons which many

state courts rely upon to support the existence of a state

immunity also tend to be unreliable when dealing with

a federal cause of action such as a Section 1983 action.

Where an individual has suffered constitutional

invasions at the hands of a state, Section 1983 provides

a remedy and the public policy behind state immunity

will not support the availability of immunity under such

severe circumstances.

That the status of the law in this area remains in

a state of flux and without direction, is evidenced by

the fact that several state courts have not even reached

the question of state immunity when presented with a

cause of action against a state. Instead, these courts

have held that states are not “persons” as contemplated

by Section 1983 and therefore are not amenable to suits

under the statute. Gay v. State of Texas, 730 S.W. 2d

154 (Tex. App. 1987) (“We must conclude, therefore, that

appellee, the State of Texas, is not a “person” within

the purview of Section 1983 et. seq. and a suit based

upon that statute could not be maintained even in the

state courts.”’); Merritt for Merritt v. State of Idaho, 108

Idaho 20, 696 P.2d 871 (Idaho 1985) (“We interpret

Quern. . . as holding that states are not ‘persons’ for

purposes of Section 1983.. . . Thus we affirm the trial

court’s dismissal. . . on the grounds that the State of

Idaho is not a person under 42 U.S.C. 1983”).

In deciding that the state of Florida could defeat a

Section 1983 action by invoking the doctrine of

sovereign immunity, based upon the foundation of

traditional immunity and strong public policy set forth

in the preceding state court cases, the Florida Supreme

12

eo

Court has impliedly responded in the negative to the

unanswered question in Martinez of whether a state

court is obligated to hear a federal cause of action.

The states have been addressing these unique

federal issues without any guidance from this Court for

too long. As the number of state court Section 1983

actions increases, the need for direction and guidance

from this Court becomes more pressing.’ The Court

could provide definitive guidelines for all state courts

to follow by reviewing the Florida Supreme Court’s

decision in the instant case, thus insuring a uniform

application of the law and precedent in this area.

‘This Court has indicated an awareness of this problem by

granting a writ of certiorari in the case of Felder v. Casey, 139 Wis.

2d 614, 408 N.W.2d 19 (1987), cert. granted, 56 U.S. L.W. 3334 (U.S.

Nov. 10, 1987) (No. 87-526). That case involved the issue of whether

a Section 1983 action would be barred in state court for failure to

comply with a state notice of claim statute. The question presented

in the instant petition is much broader and has wider implications,

in that an affirmation of the Florida Supreme Court’s decision

would totally foreclose the state court from hearing a Section 1983

claim, even where any applicable notice of claim statute was

complied with.

13

Il.

THE WRIT SHOULD BE GRANTED

BECAUSE THE DECISION OF THE

FLORIDA SUPREME COURT CONFLICTS

WITH DECISIONS OF THIS COURT AND

OTHER FEDERAL COURTS WHICH

REQUIRE A STATE COURT TO APPLY THE

ENTIRE SCOPE OF THE FEDERAL LAW

WHEN ENTERTAINING A FEDERALLY

CREATED ACTION, INCLUDING SECTION

1983 ACTIONS, AND BECAUSE IT RAISES

IMPORTANT QUESTIONS OF DUE

PROCESS AND THE ROLE OF STATE

COURTS.

This Court has long recognized that when an action

is brought in a state court to enforce rights or claims

under federal law, the Supremacy Clause requires that

federal law and policy be applied by the state court.

Maine v. Thiboutot, 448 U.S. at 11; Martinez v.

California, 444 U.S. at 284; Testa v. Katt, 330 U.S. 386.

In Garrett v. Moore-McCormack Co., 317 U.S. 239

(1942), this Court rejected the application of a state

policy which altered rights established under federal

law. The Court stated that where a state court action

is brought to assert rights granted by federal law, “the

state court is bound to proceed in such a manner that

all the substantial rights of the parties under controlling

federal law would be protected.” Jd. at 245 (emphasis

added).

14

In Brown v. Western Railway of Alabama, 338 U.S.

294 (1949), involving the dismissal of plaintiffs FELA

complaint due to a strict state pleading rule, this Court

stated generally that state practices which

unnecessarily burden rights arising under federal law

must be rejected; “‘this federal right cannot be defeated

by the forms of local practice.”’ Jd. at 295.

Taking this analysis a step further,

The suggestion that the act of Congress is not

in harmony with the policy of the state. . . is

quite inadmissible, because it presupposes

what in legal contemplation does not exist.

When Congress, in the exertion of the power

confided to it by the Constitution, adopted that

act, it spoke for all the people and all the states,

and thereby established a policy for all. That

policy is as much the policy of Connecticut as

if the act had emanated from its own

legislature and should be respected accordingly

in the courts of the State.

Mondou v. New York, 223 U.S. 1 (1912) (holding that

the rights arising under the Employer’s Liability Act

of 1908 may be enforced, as of right, in the courts of the

States).

In Johnson v. Railway Express Agency, Inc., 421 U.S.

454, 465 (1975), this Court noted that “considerations

of state law may be displaced where their application

would be inconsistent with the federal policy underlying

the cause of action under consideration.” Jd. at 465.

15°

—

In Aitchison v. Raffiani, 708 F.2d 96 (3d Cir. 1983),

the Court stated that in selecting the appropriate

statute of limitations the court may not adopt one which

is inconsistent with the federal policy underlying the

Civil Rights Act.

Finally, the Florida Supreme Court’s decision

directly conflicts with this Court’s holding in Martinez

v. California, supra. In Martinez, this Court refused to

allow the defense of state sovereign immunity in a

Section 1983 action. In rejecting the application of the

state created immunity, this Court emphasized the fact

that federal law is controlling.

Conduct by persons acting under color of state

law which is wrongful under 42 U.S.C. Section

1983. . . cannot be immunized by state law.

A construction of the federal statute which

permitted a state immunity defense to have

controlling effect would transmute a basic

guarantee into an illusory promise; and the

supremacy clause of the Constitution insures

that the proper construction may be enforced.

Id. at 284 n. 8 (quoting Hampton v. City of Chicago, 484

F.2d 602, 607 (7th Cir. 1973), cert. denied, 415 U.S. 917

(1974).

The above cases indicate that a state law or practice

must give way to the extent it interferes with or impedes

the state court’s overriding federal duty to insure that

all the substantial rights of the parties under controlling

federal law are protected. Garrett, supra at 245.

16

In allowing the defense of sovereign immunity to

defeat a Section 1983 claim, the Florida Supreme Court

has departed from the reasoning employed by this Court

in construing federally created actions, including actions

under Section 1983.

This decision also raises some important questions

of due process and the role of state courts in the

enforcement of federal rights.

Where a claimant is barred from federal courts by

the Eleventh Amendment, state court is the only

alternative forum available. Thus, the decision of the

Florida Supreme Court, which closes the doors of state

courts in such actions, raises some basic and serious due

process problems.

A basic tenet of the Fourteenth Amendment is that

every citizen shall have available to him a forum for

the redress of wrongs committed against him. Boddie

uv. Connecticut, 401 U.S. 371 (1971) (involving an

indigent’s right of access to divorce court). The total

foreclosure of any forum, state or federal, for the redress

of civil wrongs violates this basic due process guarantee.

Monroe v. Pape, 365 U.S. 167 (1961) (Frankfurter, J.,

dissenting). Therefore, where a federal cause of action

is barred from federal court by the Eleventh

Amendment and is also barred from state court by the

state’s common law immunity, the claimant is left with

no forum in which he can recover against the state. As

this Court noted in General Oil v. Crain, 209 U.S. 211

(1908),

17

If a suit against state officers is precluded in

the national courts by the Eleventh

Amendment to the Constitution and may be

forbidden by a state to its courts, as it is

contended in the case at bar that it may be,

without power of review by this court, it must

be evident that an easy way is open to prevent

the enforcement of many provisions of the

Constitution, and the Fourteenth Amendment,

which is directed at state action, could be

nullified as to much of its operation.

Id. at 226.

Consequently, where a state is allowed to raise the

defense of sovereign immunity to a Section 1983 action,

“federalism concerns would be raised because most

plaintiffs would have no choice but to bring their

complaints concerning state actions to federal courts.”

Maine v. Thiboutot, 448 U.S. at 11, n. 12. Further, where

the claim is also barred from the federal courts by the

Eleventh Amendment, due process concerns are raised

regarding the availability of a forum for redress. General

Oil, 209 U.S. at 226. Thus, the decision of the Florida

Supreme Court, if permitted to stand, encourages a state

to adopt policies inconsistent with a plaintiff's right to

choose_his own forum for redress of Section 1983

violations. It would also have the inevitable result of

hindering the emerging development of a state court

Section 1983 practice. See Steinglass, The Emerging

State Court Section 1983 Action, supra.

The issue of sovereign immunity as a defense in a

state court Section 1983 action also implicates the

18

original role of state courts in this country’s court

system. Article III of the Constitution left the existence

of lower federal courts entirely to the discretion of

Congress. It can therefore be implied that the framers

expected state courts of general jurisdiction to always

be available as a forum to vindicate federal rights. It

is certain that state courts were not free to disregard

federal statutory and constitutional rights when they

were raised as defenses in a state enforcement

proceeding. The framers thus contemplated that state

courts would be required to safeguard rights secured by

federal law. See Note, Amenability of States to Section

1983 Suits: Reexamining Quern v. Jordan, 62 Bost. U.

L.Rev. 761, 769 (1982).

The decision of the Florida Supreme Court answers

a question of federal law which has not yet been

addressed by this Court. The answer to this question

involves important issues of federalism and due process.

Therefore, it is important that this Court review this

case to determine whether state courts may erect

barriers that force Section 1983 litigation into the

federal courts, where they may already be barred.

19

CONCLUSION

For these reasons, a writ of certiorari should be

issued to review the judgment and opinion of the Florida

Supreme Court.

Respectfully submitted,

*Gregg J. Ormond, Esquire

Richard E. Sheehy, Esquire

Lisk & Ormond, P.A.

200 Aragon Avenue

Coral Gables, Florida 33134

(305) 446-5500

Attorneys for Petitioner

*Counsel of Record

December, 1987

Appendtx

NO. 69016

Supreme Court of Florida

JESSE HILL,

Petitioner,

US.

DEPARTMENT OF CORRECTIONS,

STATE OF FLORIDA,

Respondent.

Filed September 24, 1987

(Overton, J.) This is a petition to review a decision

of the Third District Court of Appeal reported as

Department of Corrections v. Hill, 409 So.2d 118 (Fla.

3d DCA 1986). The district court certified the following

question as one of great public importance:

Has the State of Florida, pursuant to section

768.28, Florida Statutes (1983), waived its

Eleventh Amendment and state common law

immunity and consented to suits against the

State and its agencies under 42 U.S.C. Section

1983? .

Id. at 120. We have jurisdiction. Art. V, §3(bX4), Fla.

Const.

A-1

The facts, set out in detail in the district court

opinion, reflect that the petitioner in this action, Jesse

Hill, filed a complaint against the respondent,

Department of Corrections (DOC), alleging false

imprisonment, negligence, and a violation of civil rights

pursuant to 42 U.S.C. §1983 for the conduct of a

probation supervisor in asserting that Hill had violated

his probation. The trial court dismissed the civil rights

action, but submitted the claims of negligence and false

imprisonment to.the jury with a special interrogatory

verdict. The parties agreed to a specific instruction on

the verdict form which read:

In determining the total amount of damages,

do not make any reduction because of

negligence, if any of plaintiff Jesse Hill. If you

have found Jesse Hill negligent in any degree,

the court in entering judgment will reduce

Jesse Hill’s total amount of damages (100%) by

the percentage of negligence which you found

is chargeable to Jesse Hill.

Id. at 119. The jury found DOC liable for false

imprisonment and 75 percent comparatively negligent,

and awarded Hill $750,000 in damages. Reasoning that

comparative negligence is not a defense to false

imprisonment, the trial court entered judgment for the

total amount of damages. DOC, after the time had run

for a motion for new trial, sought relief from the asserted

erroneous instruction by motion under Florida Rule of

Civil Procedure 1.540 which was denied by the trial

court.

A-2

On appeal, the Third District Court of Appeal

affirmed the trial court’s dismissal of Hill’s section 1983

civil rights claim, reasoning that for purposes of section

1983 the state has not waived its sovereign immunity,

and certified that question to this Court; on the rule

1.540 motion, the district court held that the trial court’s

instruction misled the jury to DOC’s prejudice. Although

the court found DOC liable for the full amount of any

damages caused by false imprisonment, it reversed the

cause for a new trial on damages.

Civil Rights Claim

In order to answer the certified question, it is first

appropriate to consider the effect of the eleventh

amendment on suits filed under 42 U.S.C. §1983. The

eleventh amendment to the United States Constitution

expressly provides:

The judicial power of the United States shall

not be construed to extend to any suit in law

or equity, commenced on or prosecuted against

one of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign

State.

This language bars suit by a citizen of one state against

another state. The United States Supreme Court, in

Hans v. Louisiana, 134 U.S. 1 (1890), clarified the

language of the amendment to grant states immunity

from suit by any person, regardless of what state

citizenship they enjoyed. The Hans Court expressly

rejected the proposition that the eleventh amendment

allows a state to be sued by its own citizens under a

federal stz. _ ‘e. Writing for the majority Justice Bradley

stated:

A-3

Can we suppose that, when the Eleventh

Amendment was adopted, it was understood to

be left open for citizens of a State to sue their

own state in the federal courts, whilst the idea

of suits by citizens of other states, or of foreign

states, was indignantly repelled? ... .

* ™~ ~

The suability of a state, without its consent,

was a thing unknown to the law. This has been

so often laid down and acknowledged by courts

and jurists that it is hardly necessary to be

formally asserted.

Id. at 15-16.

In order for a damage suit to be brought against a

state in federal court, one of two situations must occur.

First, Congress, by explicit legislative enactment, may

abrogate the state’s immunity. See Fitzpatrick v. Bitzer,

427 U.S. 445 (1976). The United States Supreme Court

has held that section 1983 did not constitute a

Congressional abrogation of a state’s eleventh

amendment immunity. See Quern v. Jordan, 440 U.S.

332 (1979); Edelman v. Jordan, 415 U.S. 651 (1974).

The second situation arises when the state itself

consents to be sued in federal court, thereby waiving

its eleventh amendment immunity. The United States

Supreme Courty [sic] in Edelman, stated

In deciding whether a state has waived its

constitutional protection under the Eleventh

Amendment, we will find waiver only where

stated “by the most express language or by

such overwhelming implications from the text

as [will] leave no room for any other reasonable

construction.”

415 US. at 673 (quoting Murray v. Wilson Distilling Co.,

213 U.S. 151, 171 (1909).

With this background, we then consider whether a

civil right suit under 42 U.S.C. §1983 can be brought

against the state and one of its agencies in a Florida

court. Hill correctly points out that the eleventh

amendment immunity is inapplicable because it

pertains only to suits filed in federal court. Hill contends

first that the state has no common law immunity

against a suit brought under federal law alleging the

violation of a federal constitutional right. We reject this

argument.

At the outset, we note that even though Quern was

a federal court action involving the eleventh

amendment, the United States Supreme Court made the

statement in that case that Congress, in enacting section

1983, did not intend “to override the traditional

sovereign immunity of the States.” 440 U.S. at 341.

Moreover, this position has also been adopted by a

number of courts throughout the country.

In Ramah Navajo School Board v. Bureau of

Revenue, 104 N.M. 302, 720 P.2d 1243 (N.M. App.). cert.

denied, 107 S.Ct. 423 (1986), the court addressed the

question by first explaining:

A-5

ee

Sovereign immunity and_ Eleventh

Amendment immunity are, of course, distinct

concepts, but both immunities are designed to

protect the same object—state government.

Civil Actions Against State Government: Its

Division, Agencies and Officers (Winborne, ed.

1982). The Eleventh Amendment shields the

operation of state governments from intrusions

from the federal judiciary while sovereign

immunity protects state government affairs

from interference by plaintiffs and state courts.

Id. Therefore, when a Section 1983 suit is

brought in federal court, the court analyzes

whether the defendant is a “person” within the

meaning of Section 1983 or, more meaningfully

expressed, whether the Eleventh Amendment

bars the suit from being brought against that

defendant. Similarly, in Section 1983 actions

brought in state courts, the court determines

whether sovereignty immunity bars the suit.

Gumbhir v. Kansas State Board of Pharmacy.

104 N.M. at 307, 720 P.2d at 1248. The court then

reasoned that since Congress in enacting section 1983

did not intend to destroy the state’s eleventh

amendment immunity from suits brought in federal

court, its logically followed that Congress also did not

intend to abrogate the state’s sovereign immunity from

section 1983 suits brought in state courts.

In concluding that the State of Michigan retained

sovereign immunity with respect to section 1983 actions,

the court in Karchefske v. Department of Mental Health,

143 Mich. App. 1, 371 N.W.2d 876 (1985), stated:

A-6

Clearly, the sovereign immunity of the states

was well established at common law at the

time that $1983 was enacted. Furthermore, we

are convinced that state immunity was

supported by such strong policy reasons that

“Congress would have specifically so provided

had it wished to abolish the doctrine.” Owen

v. City of Independence, 445 U.S. 622, 637, 100

S.Ct. 1398, 63 L.Ed.2d 673 (1980), quoting

Pierson v. Ray, supra, 386 U.S. p. 555, 87 S.Ct.

p. 1218.

In considering the policy supporting

sovereign immunity of the states from liability

in their own courts, we find a compelling

analogy in the Eleventh Amendment, even

though the latter provision on its face governs

the federal judicial power. The Eleventh

Amendment is “but an exemplification” of the

fundamental rule that ‘a State may not be

sued without its consent’. Ex parte State of

New York No. 1, 256 U.S. 490, 497, 41 S.Ct.

588, 589, 65 L.Ed. 1057 (1921), quoted in

Pennhurst State School & Hospital uv.

Halderman, 465 U.S. 89, ___, 104 S.Ct. 900,

907, 79 L.Ed.2d 67, 77 (1984). Therefore, we

would expect the same clarity of Congressional

intent to abrogate traditional sovereign

immunity as the United States Supreme court

demanded (and found lacking) in Quern, supra,

with respect to Eleventh Amendment

immunity.

A-7

143 Mich. App. at 8-9, 371 N.W.2d at 881 (footnote

omitted).

In Kapil v. Association of Pennsylvania State College,

68 Pa. Commw. 287, 448 A.2d 717 (1982), rev’d on other

grounds, 504 Pa. 92, 470 A.2d 482 (1983), the court said:

It would seem that one of the most

“traditional” dimensions of state sovereign

immunity is that which states historically have

enjoyed in their own courts from most suits for

money damages. In any event, that dimension

of state sovereign immunity clearly preexisted

Section 1983 of the federal Civil Rights Act.

Given the Quern construction of Section

1983, it follows that a state’s sovereign

immunity, from a Section 1983 damage action,

is not solely that immunity which the 11th

amendment of the federal Constitution

provides as to such suits in federal courts.

Rather, a state’s ‘traditional’ sovereign

immunity, to the extent that the state has

preserved it, would also bar a Section 1983

damage action in the state’s own courts... .

Thus, a state’s own courts may not entertain

such an action against a state or its agencies,

unless the state has in that respect waived its

sovereign immunity.

68 Pa. Commw. at 292-93, 448 A.2d at 720-21 (emphasis

in original). Accord De Bleecker v. Montgomery County,

292 Md. 498, 438 A.2d 1348 (1982); Woodbridge uv.

Worcester State Hospital, 384 Mass. 38, 423 N.E.2d 782

(1981); Kristensen v. Strinden, 343 N.W.2d 67 (N.D.

1983).

A-8

Thus, we hold that the common law immunity of the

state of Florida and its agencies has not been abrogated

by 42 U.S.C. §1983. However, just as in cases involving

the eleventh amendment, it is also necessary to consider

whether there has been a waiver of sovereign immunity.

Florida’s statute on waiver of sovereign immunity is

section 768.28, Florida Statutes, which provides, in

pertinent part:

(1) In accordance with s. 13, Art. X, State

Constitution, the state, for itself and for its

agencies or subdivisions, hereby waives

sovereign immunity for liability for torts, but

only tu the extent specified in this act. Actions

at law against the state or any of its agencies

or subdivisions to recover damages in tort for

money damages against the state or its

agencies or subdivisions for injury or loss of

property, personal injury, or death caused by

the negligent or wrongful act or omission of any

employee of the agency or subdivision while

acting within the scope of his office or

employment under circumstances in which the

state or such agency or subdivision, if a private

person, would be liable to the claimant, in

accordance with the general laws of this state,

may be prosecuted subject to the limitations

specified in this act... .

* * *

A-9

(5) The state and its agencies and

subdivisions shall be liable for tort claims in

the same manner and to the same extent as a

private individual under like circumstances,

but liability shall not include punitive damages

or interest for the period before judgment.

Neither the state nor its agencies or

subdivisions shall be liable to pay a claim or

a judgment by any one person which exceeds

the sum of $100,000 or any claim or judgment,

or portions thereof, which, when totaled with

all other claims or judgments paid by the state

or its agencies or subdivisions arising out of the

same incident or occurrence, exceeds the sum

of $200,000... .

* * *

(9Xa) No officer, employee, or agent of the

state or its subdivisions shall be held

personally liable in tort or named as a party

defendant in any action for any injuries or

damages suffered as a result of any act, event,

or omission of action in the suuv,pe of his

employment or function, unless such officer,

employee, or agent acted in bad faith or with

malicious purpose or in a manner exhibiting

wanton and willful-disregard of human rights,

safety, or property. ... The state or its

subdivisions shall not be liable in tort for the

acts or omissions of an officer, employee, or

agent committed while acting outside the

course and scope of his employment or

A-10

~

committed in bad faith or with malicious

purpose or in a manner exhibiting wanton and

willful disregard of human rights, safety, or

property.

The question of whether section 768.28 constituted

a waiver of Florida’s eleventh amendment immunity

against suit in federal court under 42 U.S.C. §1983 was

addressed by the United States District Court for the

Northern District of Florida in Shinholster v. Graham,

527 F.Supp. 1318 (N.D. Fla. 1981). After a complete

analysis of section 768.28 and its legislative history, the

court concluded:

(T]he State of Florida has not statutorily

waived its Eleventh Amendment immunity for

itself, nor for any arms of the state, nor for its

officers, employees or agents sued in their

official capacities .... [T]he Florida

legislature’s intent to limit the waiver of

sovereign immunity solely to tort claims and

to the exclusion of federal civil rights suits is

abundantly clear.

Id. at 1331-32.

This issue was also considered on appeal by the

United States Court of Appeals for the Eleventh Circuit

in Gamble v. Florida Department of Health and

Rehabilitative Services, 779 F.2d 1509 (11th Cir. 1986).

That court rejected the suggestion that section 768.28

represents a broad waiver of sovereign immunity,

finding instead that the abrogation was limited to

traditional torts; specifically, those in which the state

would be liable if it were a private person. The court

concluded: :

A-11

ee

The waiver does not constitute consent to suit

in federal court under §1983... . {[WlJe note

that the statute consistently refers to “tort

action,” persons “liable in tort,” and the like

without any mention that such terms include

federal civil rights actions. We agree. . . that

§768.28, when viewed alone, was intended to

render the state and its agencies liable for

damages for traditional torts under state law,

but to exclude such liability for “constitutional

torts.”

Id. at 1515.

We agree with these federal interpretations of our

statute and find them fully applicable with respect to

whether Florida has waived its common law immunity

against civil rights actions filed in state courts. While

Florida is at liberty to waive its immunity from section

1983 actions, it has not done so. The recovery ceilings

-in Section 768.28 were intended to waive sovereign

immunity for state tort actions, not federal civil rights

actions commenced under section 1983. Accordingly, we

answer the certified question in the negative.

New Trial on Damages

We turn next to Hill’s claim that the district court

erred in ordering a new trial on damages as a result of

the allegedly misleading jury instruction and verdict

form. The record reflects that the challenged instruction

was prepared and submitted by DOC and read at its

request upon agreement by both parties. DOC did not

object to the instruction at trial, nor did it raise the issue

A-12

on a motion for new trial. Rather, DOC attempted later,

by a rule 1.540 motion, to secure relief from the final

judgment and obtain a new trial. The trial court denied

the motion, noting that rule 1.540, which addresses

clerical mistakes, fraud, inadvertence, excusable

neglect, newly discovered evidence, etc., was an

inappropriate vehicle by which to seek relief.

Florida Rule of Civil Procedure 1,470(b), titled

“Instructions to Jury,” provides:

Not later than at the close of evidence, the

parties shall file written requests that the court

charge the jury on the law set forth in such

requests. The court shall then require counsel

to appear before it to settle the charges to be

given. At such conference all objections shall

be made and ruled upon and the court shall

inform counsel of such general charges as it

will give. No party may assign as error the

giving of any charge unless he objects thereto

at such time or the failure to give any charge

unless he requested the same... : .

We have expressly held that where no objection is made

to the form of the verdict, any defect as to form is waived.

See Higbee v. Dorigo, 66 So.2d 684 (Fla. 1953).

In a similar case concerning a verdict form, the

Second District Court of Appeal determined that

appellants waived any ambiguities when they failed to

object to the form of the verdict. Rosario v. Melvin, 446

So.2d 1158 (Fla. 2d DCA 1984). Likewise, the Fifth

District Court of Appeal noted in Keller Industries, Inc.

A-13

v. Mogart, 412 So.2d 950 (Fla. 5th DCA 1982):

The fault . . . must be placed upon the. . .

trial attorney who led the court into error by

approving, or failing to object to, the form of

the verdict . . . . For all we know. . . trial

counsel intentionally, for tactical reasons,

chose not to bring the problem to the court’s

attention.

Id. at 951. It is unrefuted that the allegedly misleading

verdict form was agreed to by both parties. We hold its

use did not constitute fundamental error and the

granting of relief on the basis of rule 1.540 was

improper. We note the verdict form was consistent with

the dictates of the Florida Standard Jury Instructions

and the model verdict forms.

Conclusion

For the reasons expressed, we find Florida has not

waived immunity to a federal statutory civil rights

claim under 42 U.S.C. §1983 and the district court

improperly granted a new trial on damages.

Accordingly, we approve that portion of the district court

decision finding no waiver of sovereign immunity, but

we quash that portion of the decision which orders a new

trial on damages.

It is so ordered. (McDonald, C.J., and Shaw, Barkett,

Grimes and Kogan, JJ., Concur. Ehrlich, J., Concurs

with an opinion.)

(Ehrlich, J., concurring.) I concur with the Court’s

opinion but wish to add an additional reason why a new

trial was improperly granted by the district court.

A-14

While the court’s instruction was technically in

error, the jury was told to determine the total amount

of plaintiff's damages and not to “make any reduction

because of negligence.” The ‘“‘negligence”’ aspect of the

charge was in error. The jury found DOC liable for false

imprisonment and that finding supports the damage

award. The further finding that DOC was “75 percent

comparatively negligent” cannot be ignored.

* * *

A-15

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1986

_ CASE NO. 85-1488

THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF FLORIDA,

Appellant,

US.

JESSE HILL,

Appellee.

Opinion filed May 6, 1986.

On Appeal from the Circuit Court for Dade County,

Joseph P. Farina, Judge.

William A. Meadows, Jr. and Charles F. Mills, for

appellant. |

Lisk & Ormond and Gregg Ormond; Haggard &

Kirkland, for appellee.

Before SCHWARTZ, C. J., and BARKDULL and

NESBITT, JJ.

PER CURIAM.

A-16

The Department of Corrections (D.O.C.) appeals

from a jury verdict awarding the plaintiff (Hill)

$750,000.00. D.O.C. contends that the trial court erred

by giving the jury a misleading instruction and verdict

forms. We affirm in part and reverse in part.

Following a trial on the issues of liability and

damages, the jury returned a verdict in the above stated

amount finding that D.O.C. had falsely imprisoned Hill

and was 75% comparatively negligent. Hill was found

25% comparatively negligent. An instruction at the end

of the verdict form read:

In determining the total amount of damages,

do not make any reduction because of

negligence, if any of plaintiff Jesse Hill. If you

have found Jesse Hill negligent in any degree,

the court in entering judgment will reduce

Jesse Hill’s total amount of damages (100%) by

the percentage of negligence which you found

is chargeable to Jesse Hill.

This same instruction was read aloud by the court to

the jury prior to their deliberations.

Following the publication of the verdict, the court

entered a judgment for the total amount of damages,

$750,000.00. D.O.C. requested that the judgment be

reduced by Hill’s percentage of comparative negligence.

The court denied this request, reasoning that

comparative negligence is not a defense to false

imprisonment.

A-17

D.O.C. contends that the instruction given by the

court and written at the end of the verdict forms misled

the jury to the prejudice of D.O.C. We agree that the

result of these instructions was prejudicial to D.O.C..,

see, ITT-Nesbitt, Inc. v. Valle’s Steak House, Inc., 395

So.2d 217 (Fla. 4th DCA 1981) (the test for misleading

jury instructions is whether, under the particular facts

of the case, the instructions could have misled the jury

or prejudiced a party’s right to a fair trial); American

National Bank v. Norris, 368 So.2d 897 (Fla. lst DCA

1979) (same); Lafleur v. Castlewood International Corp.,

294 So.2d 21 (Fla. 3d DCA 1974) (same); see also Staff

v. Soreno Hotel Co., 60 So.2d 28 (Fla. 1952) (court may

not mislead a jury in outlining the issues that body is

to try); and these instructions tended to confuse rather

than enlighten the jury on the issue of damages. Veliz

v. American Hospital, Inc., 414 So.2d 226, 228 (Fla. 3d

DCA 1982) (an instruction which tends to confuse is

cause for reversal if it may have misled the jury).

The lower court was correct in ruling that Hill’s

comparative negligence is not a defense to false

imprisonment, see Mazzilli v. Doud, 11 F.L.W. 732 (Fla.

3d DCA Mar. 25, 1986) (comparative negligence is not

a defense to an intentional tort); Honeywell, Inc. v. Trend

Coin Co., 449 So.2d 876, 879 (Fla. 3d DCA 1984) (same);

reversed on other grounds, 11 F.L.W. 75 (Fla. Feb. 27,

1986), and therefore D.O.C. is liable for the full amount

of any damages caused by its false imprisonment of Hill.

In the present case, however, the jury was misled by

instructions on the reduction of damages. Accordingly,

we reverse for a new trial on the damages resulting from

the false imprisonment, without consideration of the

negligence of either party. See Besett v. Basnett, 437

A-18

So.2d 172 (Fla. 2d DCA 1983) (double recovery based

upon the same element of damages, in this case fraud

and negligence, is prohibited).

Hill cross-appeals the dismissal of his 42 U.S.C. §

1983 civil rights claim. We affirm the lower court’s

dismissal on the authority of Skoblow v. Ameri-Manage,

Inc., 483 So.2d 809 (Fla. 3d DCA 1986), where we held

that, for purposes of 42 U.S.C. § 1983, the state has not

waived sovereign immunity. D.O.C. is a state agency

and, therefore, enjoys state sovereign immunity. Thus,

the dismissal of Hill’s civil rights claim was proper.

This case is affirmed in part, reversed in part and

remanded for a new trial as to damages for false

imprisonment.

A-19

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1986

CASE NO. 85-1488

THE DEPARTMENT OF CORRECTIONS

OF THE STATE OF FLORIDA,

Appellant,

US.

JESSE HILL,

Appellee.

Opinion filed June 17, 1986.

On Appeal from the Circuit Court for Dade County,

Joseph P. Farina, Judge.

William A. Meadows, Jr. and Charles F. Mills, for

appellant.

Lisk & Ormond and Gregg Ormond; Haggard &

Kirkland, for appellee.

Before SCHWARTZ, C. J., and BARKDULL and

NESBITT, JJ.

ON MOTION FOR REHEARING AND

CERTIFICATION

PER CURIAM.

A-20

Ste wee td an IR STI Bn ne ca EN A

Hill’s motion for certification is granted and we

certify to the Supreme Court of Florida the question

certified by the First District Court of Appeal in Spooner

vu. Department of Corrections, 11 F.L.W. 1157 (Fla. 1st

DCA May 19, 1986):

Has the State of Florida, pursuant to section

768.28, Florida Statutes (1983), waived its

Eleventh Amendment and state common law

immunity and consented to suits against the

State and its agencies under 42 U.S.C. Section

1983?

Hill’s motion is otherwise denied.

A-21