STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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FINAL ORDER

Consistent with the Notice of Hearing furnished the parties by the undersigned on April 4, 1985, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, at the Union Correctional Institution, Raiford, Florida, on April 29, 1985. The issue for consideration was whether the Department of Corrections Rule 33- 3.081 constitutes a valid exercise of delegated legislative authority.

APPEARANCES

For Petitioner: Douglas L. Adams, Representative

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

For Respondent: Julia P. Forrester, Esquire

Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

BACKGROUND INFORMATION

On March 17, 1985, the Petitioner, William F. Reid, submitted a Petition for Determination of the Invalidity of an Existing Rule pursuant to Section 120.56(1), Florida Statutes. The rule in question was Department of

Corrections (DOC) Rule 33-3.081, and Petitioner alleges that the rule is invalid as being arbitrary, capricious, oppressive, discriminatory, and inappropriate for the purpose of the rule and grant of authority. Thereafter, the Petition was forwarded to the Division of Administrative Hearings where on March 28, 1985, the Director assigned the case to the undersigned for hearing. On April 11, 1985 the Petitioner submitted a request to have Douglas LaVern Adams, also an inmate at Union Correctional Institution (UCI), to serve as his personal representative in the hearing of this matter. After due inquiry, on April 22, 1985, the undersigned entered an Order granting Mr. Adams the authority to act as representative for the Petitioner in this case.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Clifford Towbridge, Curtis

L. Mangram and Edwin Paul, all inmates at UCI; and Robert

1. Bache and John A. Tabah, Classification Specialists at UCI. Petitioner also presented Petitioner's Exhibits 1 through 4. Respondent presented the testimony of Mr. T.J. Cunningham, Chief Classification Officer at UCI; Mr. Tabah, who testified for Petitioner; and Harry K. Singletary, Assistant Secretary for Operations, DOC.

   
   

   Respondent submitted posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4., Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative immaterial or unnecessary.

   
   

   FINDINGS OF FACT

   
   

   1. Petitioner, William F. Reid, is currently and has been at all times pertinent to the issues herein, an inmate at UCI, having been committed to the custody of the DOC for an offense committed prior to July 1, 1978. At the time of filing of the Petition, he was in administrative confinement at UCI but, at the time of the hearing, had been released and was not in that status. Petitioner concedes that even during the period of his administrative confinement, he was awarded basic gain time as provided for since he was committed prior to July 1, 1978. However, due to the fact that he was unable to work while in

      administrative confinement, he did not receive any incentive gain time during that period.

      
      

   2. Work opportunities for inmates in administrative confinement status are extremely limited. This is because of the security and manpower problems involved in providing adequate supervision of this category of inmate during a work detail.

      
      

   3. Rule 33-3.081, Florida Administrative Code, allows the placing of an inmate in administrative confinement then disciplinary or criminal charges are pending against him and his presence in the general prison population would present a danger to himself, to others, or to the security and order of the institution. It is also authorized when an investigation is pending and the inmate's presence in the prison population might tend to interfere with that investigation. If, for medical reasons, an inmate's remaining in the prison population would create a health or safety risk, administrative confinement is also authorized. Another reason justifying administrative confinement is when the inmate is alleged to have committed misconduct and there is concern that because of that, his safety is at risk. The rule does not provide any maximum length of time for administrative confinement and the reason for this is that the investigations supporting it are of varying complexity and take differing lengths of time.

      
      

   4. Petitioner and the other inmates who testified on his behalf all of whom have been in administrative confinement in the past, all denied that they had received the required informal hearing called for under the rule. At best, they were told by the officer placing them in administrative confinement generally why this action was being taken. However, they contend they were never given any opportunity to submit anything to a senior official or a classification officer and they are of the opinion that at no time was there an emergency situation involved.

      
      

   5. The impression that the inmates have is that a corrections officer can have an inmate confined or released for any reason whether there is adequate justification or basis for the action.

      
      

   6. Clifford Towbridge has been an inmate at UCI since December, 1983. When he was placed in administrative confinement he was advised of this fact by a corrections

      officer who told him to pack his things and who put him in administrative confinement status without telling him why. He contends he got no hearing but was ultimately told he was being confined because a confidential informant advised that his life was in danger. Approximately two to three weeks later, he was released when he signed a paper indicating that his life was not in danger. At no time was he told who had made the allegation against him and he was not given a hearing either before confinement or before release.

      
      

   7. Curtis Mangram had an experience with administrative confinement at his prior incarceration at Belle Glade Correctional Institution. At that time he was given no hearing nor was he brought before a review board. When he left administrative confinement at Belle Glade he was assigned to UCI and remained clean until August 4, 1984 when he was placed in administrative confinement there. It appears that his name was mentioned in connection with the rape of a prisoner and he was placed in administrative confinement for several weeks pending investigation of that incident. One day after his release he was again placed in administrative confinement for possession of contraband wine. He was given no hearing prior to being placed into administrative confinement nor was he initially given a reason for this action. However, he wrote several letters to officials within the DOC to determine why this action was taken. The first response he got indicated he was being placed in for evaluation but regardless of the reason, he is sure he was not given a hearing. On neither occasion of his being placed in administrative confinement, in his opinion, was there any emergency reason for precipitous action. From first hand and from what he has seen and heard, it is his opinion that prisoners are placed in administrative confinement solely on the uncorroborated allegations of other prisoners and when this happens, there is no hearing prior to she placement nor within a timely period thereafter.

      
      

   8. As was stated previously, the witness was placed in administrative confinement on August 4 and was released on August 28. At that time he was told the reason for him having been placed in administrative confinement (the alleged rape) was resolved. The following day, August 29, he was placed back in administrative confinement and was told by a corrections officer that the action was being taken because Lt. Dixon, an investigator, wanted him back

      in. Later on, Officer Ward, Dixon's assistant, read him his rights and asked him some questions after which the witness was returned to administrative confinement.

      
      

   9. The witness admits that he had the wine which he subsequently found out was the basis for his second administrative confinement but he was never punished for the wine nor was he ever charged with the rape. He was in administrative confinement for a total of four months at UCI and had he been punished for the unlawful possession of the wine, it is his opinion he would have been placed in disciplinary confinement for fifteen or thirty days, a period much shorter than the entire period of his administrative confinement.

      
      

   10. Inmate Edwin Paul has been placed in administrative confinement for investigative reasons twelve or thirteen times during the two and a half years he has been an inmate at UCI. He relates that when he is placed there, the corrections officer comes up to him and tells him to pack his things but never gives him a reason for this action. The response to his inquiry is always that someone will tell him. It is his experience that at UCI, regardless of what the rule requires, no review is done and the inmate is not told anything until he files a grievance. That generally takes approximately ninety days to resolve and during this time, the inmate is in administrative confinement earning no incentive gain time.

       
       

   11. According to Paul, his requests for information as to the reason for his status are met with various answers such as "you're a menace," "none of your business," or "I don't know." It is his opinion that administrative confinement can be imposed on an inmate at the whim of a correctional officer. He contends that in all of his periods of administrative confinement either no charges were preferred against him, or he was found not guilty of the allegation that was laid, but during all that period, he has not received any gain time that he would have earned had he not been placed in administrative confinement. This has affected his status in that had he not been placed in administrative confinement, his sentence would have been up after forty months confinement. Because of his inability to earn gain time, he is not serving the fiftieth month of his period of confinement.

   12. Petitioner was placed in administrative confinement on March 17, 1985. He was not then nor has he since that time been given an informal hearing by a correctional officer, he states. He claims he was placed in administrative confinement by a corrections officer - and was not given an opportunity to sign anything regarding this action. On this occasion he was in for two and a half months.

       
       

   13. In a prior period of administrative confinement, he claims he was not told why he was there officially.

       Only through the information given him by a friendly corrections officer two weeks after the fact was he advised why he was incarcerated. Never has a senior corrections officer ever held a hearing with him, he states, nor has he ever been told how long the investigation on which his administrative confinement status is based will take. He has not seen any investigative report nor has he even been given any assistance in finding out the reason for his status. Even a personal interview with the superintendent of UCI has not changed this process, he says.

       
       

   14. Reid and the other inmates who testified on his behalf all contend that the implementation of the rule regarding administrative confinement creates great stress for them because of, (1) the loss of incentive gain time,

       (2) the inability to get appropriate exercise, and (3) the impact that the status has on the ability to receive visitors, and all agree that being afforded a hearing or being told why the administrative confinement action was being taken would tend to reduce that stress.

       
       

   15. Petitioner admitted that he does not have much of a problem with the rule except for the fact that it does not put any time limit on the length of the investigation. His complaint is primarily with the way the rule is followed by UCI.

       
       

   16. Mr. Tabah, the classification specialist at UCI, related that there is no formal board hearing when inmates are placed in administrative confinement. The inmates' case is reviewed by the chief correctional officer and this review is termed a hearing. This action, however, is itself reviewed by the classification team within 72 hours of the hearing. At the inmates' hearing, a form DC4-318 is prepared by the chief correctional officer on which the reason for the administrative confinement action is listed.

       The bottom half of this form is subsequently filled out by the classification team during its review as to its concurrence or non-concurrence and the team's recommendation for action. The inmate is given a copy of this review and has an opportunity to make comment thereon. Both the recommendation of the team and the comments of the inmate, if any, are referred to the superintendent.

       
       

   17. Every inmate in administrative confinement is reviewed weekly. Each inmate is usually advised of the reason for his being placed in administrative confinement either at the time or immediately thereafter. Only in emergency cases can the inmate be placed in administrative confinement without review/hearing by the chief correctional officer. In that case, the hearing is held within forty-eight hours.

       
       

   18. Review of the files on both Mangram and Towbridge reveal that, as to Towbridge, the inmate was advised by the corrections officer placing him in administrative confinement on February 13, 1985 as to the reason therefor. The chief corrections officer approved the actions of the corrections officer thereafter and the following day, the classification team reviewed the action and furnished the inmate with a copy of their recommendation.

       
       

   19. As to Mangram, the records reflect that he was placed in administrative confinement on August 18, 1984. An informal hearing was held that same day and the action was reviewed by senior corrections officer Bryant at 4:00

       P.M. the same day. Mr. Mangram was retained in administrative confinement because of the belief that the safety of the institution required it. It was felt that Mangram was a potentially violent inmate who posed a clear danger to others.

       
       

   20. As to Mr. Paul, the file reflects that the two times he was in administrative confinement he was advised of the reasons and given a hearing.

       
       

   21. As to Petitioner, the record reflects that on January 24, 1985 he was placed in administrative confinement and given the reasons therefor by corrections officer Brown. The reviewing corrections officer supervisor Bryant concurred.

       
       

       CONCLUSIONS OF LAW

       
       

   22. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

       
       

   23. At the hearing Respondent moved to dismiss the Administrative Complaint on the ground that Petitioner was no longer in administrative confinement and therefore lacked standing to challenge the rule. In the alternative, Respondent moved to dismiss that portion of the petition dealing with basic gain time on the grounds that Petitioner received basic gain time while in administrative confinement. A ruling was reserved by the Hearing Officer on these motions. Having considered them in light of the testimony presented, the motion to dismiss on the grounds that Petitioner did not have standing is denied. There having been a showing that Petitioner received basic gain time during the period of his administrative confinement by virtue of having been convicted of an offense occurring prior to July 1, 1978, the alternative motion to dismiss that portion of the petition dealing with basic gain time is hereby granted. Therefore, the issue remaining for consideration is whether the rule is arbitrary, capricious, oppressive, discriminatory, and inappropriate.

       
       

   24. Petitioner's challenge is directed along two lines. The first relates to subparagraph 1, 3, and 6, and the various subparagraphs thereunder which relate to the reasons for placing an inmate in administrative confinement, the period of time that an inmate might be kept there, and the review procedures of the action taken to put an inmate there. Petitioner's second attack relates to subparagraph 4(a) and (b) which deal with the provisions for a formal hearing and a review of the decision to place an inmate in administrative confinement.

       
       

   25. Here the Petitioner has the burden of showing that the rule in question exceeds the authority granted by the Legislature; is not appropriate to the end specified in the statute; and is not reasonably related to the purpose of the legislation enabling it; or is arbitrary and capricious.

       
       

   26. The Department of Corrections is directed to promulgate and enact regulations designed to control and govern the operation of the correctional system within the State of Florida.

       
       

   27. Petitioner, in his testimony at the hearing, admits that the rule in question is not inappropriate. His contest, as is so often the case, is not to the rule itself but as to its implementation at the institution. These complaints do not challenge the rules but merely the way in which they are being implemented and this complaint is more the appropriate subject of a grievance proceeding rather than a rule challenge. However, if it can be shown that the implementation of the rule is faulty because of a defect in specificity in the rule itself, then the issues raised by Petitioner may be pertinent. It is incumbent upon Petitioner, however, to establish by legal and competent evidence, that the rule is not sufficiently specific.

       
       

   28. Approaching the rule from the standpoint of its specificity and the reasons therefor as opposed to implementation, it can be seen that each subsection of the rule clearly states how administrative confinement will be imposed, the reasons for its imposition, and, clearly, an adequate and comprehensive review process to insure that the action is appropriately taken and remains appropriate during the period of imposition.

       
       

   29. Even assuming that Petitioner's evidence is true and that the rule is not being properly implemented, this evidence fails to establish that the rule is inappropriate. In implementing the rule, the Department has followed the mandate given it by the Legislature to "promulgate regulations governing the administration of the correctional system in the operation of the Department." The reasons given by the corrections personnel for the imposition of administrative confinement are valid and cannot be said to be either arbitrary or capricious. There is no showing that they are discriminatory or, if properly implemented, oppressive.

       
       

   30. If there is a problem with the local implementation of the rule, and it must be said, it appears that there is, it is incumbent upon the Department to look into this and take whatever corrective action is necessary to insure that the rule works as it is drawn and designed to work. Be that as it may, however, the Petitioner's evidence fails to establish that the rule is defective. It is, therefore,

ORDERED that:

The Petition to have Rule 33-3.081 declared an invalid exercise of delegated legislative authority be dismissed.

DONE and ORDERED this 3rd day of June, 1985 in Tallahassee, Florida.

Hearings

Hearings

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division Administrative

this 3rd day of June, 1985.

COPIES FURNISHED:

William F. Reid

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Douglas L. Adams Representative

Union Correctional Institution Post Office Box 221

Raiford, Florida 32083

Julia P. Forrester, Esquire Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32301

Louie L. Wainwright Secretary

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Louis A. Vargas General Counsel

Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 85-000923RX

Orders for Case No: 85-000923RX