STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID LEE MOORE, )

)

Petitioner, )

)

vs. ) CASE NOS. 91-7014RX

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

On November 4, 1991, the Petitioner, David Lee Morre, filed a pleading titled "Petition for Administrative Determination" challenging the validity of Rules 33-3.0082, 33-3.0083, 33-6.009, and 33-3.123, Florida Administrative Code (hereinafter referred to as the "Challenged Rules"), and Policy and Procedure Directive 4.07.21. On November 6, 1991, an Order of Assignment was entered assigning this case to the undersigned.

A Notice of Hearing was entered November 8, 1991, setting the final hearing of this case for December 9, 1991.

On November 12, 1991, the Respondent, the Department of Corrections, filed a Motion to Dismiss. The Respondent argued that no specific factual allegations (except one, which is invalid on the fact of the Challenged Rule) to support the Petitioner's challenge have been included in the Petition, that the Petitioner is merely attempting to have his confinement to close management reviewed and is raising constitutional issues the undersigned has no jurisdiction to decide.

The Petitioner filed a response to the motion to dismiss.

Based upon a review of the Petition, the Motion to Dismiss and the response thereto, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered on December 4, 1991. In the December 4, 1991, Order the parties were informed: (1) the Petition failed to allege sufficient facts to show that the Challenged Rules constitute an "invalid exercise of delegated legislative authority"; (2) the Petitioner appears to merely be challenging the application of the Challenged Rules to him; and (3) the undersigned has no jurisdiction to entertain the Petitioner's constitutional challenge.

Based upon the foregoing, the Petitioner was informed that the Motion to Dismiss was granted. The Petitioner was given until January 9, 1992, to file an amended petition.

No amended petition was filed by the Petitioner. Therefore, an Order Concerning Final Order was entered on December 14, 1991, informing the parties that a Final Order dismissing this case would be entered on or before March 13, 1992. The parties were informed that they could file proposed final orders on or before February 17, 1992.

Neither party filed a proposed final order.

FINDINGS OF FACT

1. On November 4, 1991, the Petitioner, David Lee Moore, filed a Petition for Administrative Determination.

   
   

2. In the Petition, the Petitioner challenged Rules 33-3.0082, 33-3.0083, 33-6.009, and 33-3.123, Florida Administrative Code, and P.P.D. 4.07.21.

   
   

3. The Challenged Rules govern the following matters:

   
   

   1. Rule 33-3.0082, Florida Administrative Code, deals with "Protective Management" which is defined as "the removal of an inmate from the general population for the protection of the inmate." Rule 33-3.0082(1), Florida Administrative Code.

      
      

   2. Rule 33-3.0083, Florida Administrative Code, deals with "Close Management" which is defined as "long-term single cell confinement of an inmate apart from the general population, where an inmate, through his own behavior, has demonstrated an inability to live in the general population without abusing the rights and privileges of other inmates or disturbing the security, order or operation of the institution." Rule 33-3.0082(1), Florida Administrative Code.

      
      

   3. Rule 33-6.009, Florida Administrative Code, was transferred to Rule 33- 6.0045, Florida Administrative Code, which deals with custody classification of inmates.

      
      

   4. Rule 33-3.123, Florida Administrative Code, according the Petitioner, deals with inmate telephone use. Apparently, the Petitioner is referring to Rule 33-3.0123, Florida Administrative Code.

   
   

4. The Petitioner has alleged that the Challenged Rules constitute an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(d) and (e), Florida Statutes.

   
   

5. Insufficient alleged facts concerning why it is believed that the specific requirements or provisions of the Challenged Rules are an "invalid exercise of delegated legislative authority", as defined in Section 120.52(8), Florida Statutes, were included in the Petition.

   
   

6. The Petition includes the use of legal terms and phrases with little in the way of factual explanation. Although the Petition contains some "legalese, it does not, read alone or in conjunction with all of the Petitioner's pleadings, adequately put the Respondent on notice as to what the Petitioner is challenging or the basis for his challenge. As an example, the Petitioner has alleged in paragraph 13 of the Petition the following:

   
   

   The Petitioner challenges the validity, legality, and constitutionality of the five (5) rules cited, supra; Petitioner submits that these challenged rules, on their face and as applied, are invalid and unconstitutional for the following reasons:

   1. The rules violate the Petitioner's Federal and State Constitutional rights to substantive and Procedural Due Process of law, as guaranteed by the 8th and 14th amendments; the [sic] also violates the Petitioner [sic], First, Fourth, Fifth, Eighth, and

      Ninth, Constitutional Amendment [sic].

   2. They are an invalid exercise of delegated legislative authority contrary to Chapter 120.52(8)(d) & (e), Fla. Statute in that:

      1. The rules are vague, fail to establish adequate standards for agency decisions, and, they vest unbridied [sic] discretion in the Agency.

      2. The Rules are arbitrary and capricious.

      
      

7. The only specific allegations concerning any of the Challenged Rules involve complaints about the Respondent's application of at least some of the Challenged Rules to the Petitioner. For example, in paragraph 29 of the Petition the Petitioner alleges that "33-3.0082 is defective for failure to utilize mandatory language to protect the Petitioner from punitive measures and the agency's actions deprives [sic] the Petitioner of the ability to clearly establish his due process liberty interest . . . ." See also paragraphs 5-8 and

   12 of the Petition.

   
   

8. The incidents complained of by the Petitioner have allegedly been the subject of unsuccessful grievance proceedings or other actions. In paragraph 12 of the Petition it is alleged "Petitioner contends that the action, acts, omissions, and practise [sic] complained of in the foregoing Petition has [sic] been complained of before . . . ." Having failed to obtain a favorable response to his grievances and other actions, the Petitioner is seeking through this process to have the incidents reviewed. The Petitioner's allegations concerning the alleged incidents are not merely allegations intended to prove the Petitioner's standing to institute this proceeding. The Petitioner is complaining about, and seeking review of, alleged actions of the Respondent.

   
   

9. The Petitioner has also attempted to raise constitutional arguments to support his challenge. The statements concerning constitutional issues consist of mere statements that constitutional rights are being violated without any facts to support an argument that the Challenged Rules are unconstitutional.

   
   

10. The only allegation concerning Rule 33-3.0123, Florida Administrative Code, contained in the Petition is that this rule "is intentionally designed to cut off ALL inmates who cannot read or write from communicating with family members as well as friends." No facts to support his argument are alleged and, on the face of this rule, there is no basis for this allegation.

    
    

11. On December 4, 1991, an Order Granting Motion to Dismiss with Leave to Amend and Cancelling Formal Hearing was entered. The Petitioner was informed that the Petition was being dismissed and he was given an opportunity to file an amended petition. The Petitioner did not file an amended petition.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes (1991).

    
    

13. In pertinent part, Section 120.56, Florida Statutes, provides the following:

    
    

    1. Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid

       exercise of delegated legislative authority.

    2. The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. . . .

    
    

14. The only relief which may be sought pursuant to Section 120.56, Florida Statutes, is a determination of the invalidity of the rule on the ground that the rule is an "invalid exercise of delegated legislative authority."

    
    

15. What constitutes an "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:

    
    

    1. "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:

       1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

       2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

       3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

       4. The rule is vague, fails to establish adequate standards for agency decisions, or vest unbridled discretion in the agency; or

       5. The rule is arbitrary or capricious.

    
    

16. In order to challenge an existing rule, the person bringing the challenge must state with particularity which portion(s) of the above definition the challenged rule violates and the specific facts supporting such an allegation.

    
    

17. In the Petition filed in this case it was alleged that the Challenged Rules and a policy and procedure directive constitute an "invalid exercise of delegated legislative authority". It has also been alleged that the Challenged Rules and the policy and procedure directive are invalid pursuant to some of the specific provisions of Section 120.52(8), Florida Statutes. These allegations are, however, no more than restatements of the language contained in Sections 120.52(8) and 120.56, Florida Statutes.

    
    

18. No sufficient statement of the particular facts which the Petitioner believes support his challenge were alleged in the Petition. The Petition essentially contains bare assertions that the Challenged Rules and the policy and procedure directive come within the definitions of Section 120.52(8), Florida Statutes, and are, therefore, invalid pursuant to Section 120.56, Florida Statutes.

    
    

19. In reality the Petition constitutes an attempt by the Petitioner to challenge the alleged actions of the Respondent placing the Petitioner in close

    management and the loss of certain privileges as a result of those disciplinary actions. These allegations, if true, might support a conclusion that the Challenged Rules and/or the policy and procedure directive have not been applied properly or have not been followed by the Respondent. Misapplication of, or the failure to follow, an agency rule cannot, however, support a challenge to that agency rule under Chapter 120, Florida Statutes. See Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1982). The allegations concerning actions taken against the Petitioner or his custody classification or status cannot support a challenge to the Challenged Rules or the policy and procedure directive pursuant to Section 120.56, Florida Statutes.

    
    

20. It has also been contended in the Petition that the Challenged Rules violate constitutional provisions. A Hearing Officer has no jurisdiction over constitutional challenges brought pursuant to Section 120.56, Florida Statutes. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Fund, 427 So.2d 153 (Fla. 1982); Long v. Department of Administration, 428 So.2d 688 (Fla. 1st DCA 1983); and Cook v. Parole and Probation Commission, 415 So.2d 845 (Fla. 1st DCA 1982).

    
    

21. Based upon the foregoing, it is concluded that the Petition does not comport with the requirements of Section 120.56, Florida Statutes, and this case should be dismissed.

ORDER

Based upon the foregoing, it is

ORDERED that the Petition for Administrative Determination filed in this case is DISMISSED.

DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992.

COPIES FURNISHED:

David Lee Moore, #053877

Florida State Prison Post Office Box 747

Starke, Florida 32091-0747

Donna Malphurs Suite 439

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Claire Dryfuss

Assistant Attorney General Division of General Legal Services Department of Legal Affairs

Suite 1603, The Capitol Tallahassee, Florida 32399-1050

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

Louis A. Vargas General Counsel

Department of Corrections 2601 Blairstone Road

Tallahassee, Florida 32399-2500

Harry K. Singletary, Jr., Secretary Department of Corrections

2601 Blairstone Road

Tallahassee, Florida 32399-2500

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

DAVID LEE MOORE, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED.

vs. CASE NO. 91-2615

DOAH CASE NO. 91-7014RX

RICHARD L. DUGGER, et al.,

Appellee.

/

Opinion filed February 8, 1993.

An appeal from the circuit court for Bradford County. George Pierce, Judge. David Lee Moore, Pro Se, for Appellant.

No appearance for Appellees.

ZEHMER, J.

David Lee Moore, a prisoner in the state corrections system, appeals an order summarily denying his petition for writ of habeas corpus on the ground that the petition was facially insufficient to show a cause of action upon which relief could be granted. We affirm.

Moore alleged in his petition that Florida state prison officials violated his constitutional due process rights by reclassifying his confinement status from the general prison population to the most restrictive confinement without notice or a hearing. Moore further alleged that the officials subjected him to cruel and unusual punishment in violation of the Eighth Amendment by, inter alia, placing him for an hour in a 2- by 2-foot holding cage, and then placing him for 16 days in an "involuntary behavior modification cell" that had a pool of water on the floor, trash and human waste standing in the stopped-up toilet, and no lights. While these allegations were sufficient to state a cause of action, Guess v. Barton, 599 So.2d 770 (Fla. 1st DCA 1992); Roy v. Dugger, 592 So.2d 1235 (Fla. 1st DCA 1992); Van Poyck v. Dugger, 579 So.2d 346 (Fla. 1st DCA 1991); Rahming v. Bigham, 539 So.2d 10 (Fla. 1st DCA 1989), Moore's petition was facially insufficient in that it failed to allege that he had exhausted all available administrative remedies, Polk v. Crockett, 379 So.2d 369 (Fla. 1st DCA 1980); Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982).

AFFIRMED.

ALLEN and WEBSTER, JJ., CONCUR.

Docket for Case No: 91-007014RX

Orders for Case No: 91-007014RX