STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD EUGENE HALPIN, DAVID SIPLING,) DAVID LEE JONES, JAMES HERNDON, ) DANIEL McCORMICK, and )

ROBERT F. MORELLO, )

)

Petitioners, )

vs. ) CASE NO. 92-3094RXP

)

DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

SUMMARY FINAL ORDER

By Petition for Administrative Review dated May 14, 1992, Petitioners seek to have Chapter 33-29, Florida Administrative Code, declared to be an invalid exercise of delegated legislative authority. As grounds therefor it is alleged the rule serves no legitimate purpose other than to notify Respondent that the person filing the grievance will probably be filing a civil complaint; that the rule vests unbridled discretion in the Department of Corrections; that at least 99% of grievances filed are arbitrarily denied; that Chapter 33-29 is arbitrary or capricious because most inmates filing grievances are functionally illiterate; and that an agency independent of the Department of Corrections should rule on inmate's grievances.

Section 944.08, Florida Statutes, provides in pertinent part:

(1) The department shall adopt rules governing the administration of the correctional system and the operation of the department, which rules shall relate to:

. . .

(d) Grievance procedures which shall conform to Title 42, US Code, s. 1997e.

42 US Code, s. 1997e, provides for the adoption of grievance procedures applicable to adults convicted of a crime and confined in any jail, prison, or other correctional facility, which administrative remedies must be exhausted before the inmate may bring an action in the United States District Court.

Subsection (b)(2) states the minimum standards shall provide -

1. for an advisory role for employees and inmates of any jail, prison, or other correctional institution (at the most decentralized level as is reasonably possible), in the formulation, implementation, and operation of the system;

2. specific maximum time limits for written replies to grievances with reasons thereto at each decision level with the system;

3. for priority processing of grievances which are of

   an emergency nature, including matters in which delay would subject the grievant to substantial risk of personal injury of other damages;

4. for safeguards to avoid reprisals against any grievant or participant in the resolution of a grievance; and

5. for independent review of the disposition of grievances, including alleged reprisals, by a person or other entity not under the direct supervision of direct control of the institution.

In the petition filed herein no specific provision of Chapter 33-29 is alleged to be an invalid exercise of delegated legislative authority; nor is any allegation made that the rule fails to conform to the minimum standards established by Section 944.09, Florida Statutes, and 42 USC, s. 1997e. The mere fact that the Petitioners do not like the grievance procedures established by Chapter 33 - 29 does not constitute valid grounds for challenging the rule.

Here the Petitioners have failed to allege wherein Chapter 33 - 29 fails to conform to the statutory guidelines established in Section 944.09(1)(d), Florida Statutes. Accordingly, it is

ORDERED:

The Petition filed by Donald Eugene Halpin, David Sipling, David Lee Jones, James Herndon, Daniel McCormick, and Robert F. Morello to challenge the validity of Chapter 33 - 29, Florida Administrative Code, be dismissed.

DONE and ORDERED this 26th day of May, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1992.

COPIES FURNISHED:

Donald Eugene Halpin, #076151 Mail No. 757

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

David Sipling, #020899

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

David Lee Jones, #390680

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

James Herndon, #187913

Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

Daniel McCormick, #098533 Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

Robert F. Morello, #091585 Martin Correctional Institution 1150 Southwest Allapattah Road Indiantown, Florida 34956

Louis A. Vargas, Esquire Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Claire Dryfuss, Esquire Assistant Attorney General The Capitol, Suite 1603 Tallahassee, FL 32399-1050

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

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.

Docket for Case No: 92-003094RX

Orders for Case No: 92-003094RX