STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERVIN J. HORTON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2908RX

) DEPARTMENT OF CORRECTIONS, )

)

Respondent. )

)

FINAL ORDER

A final hearing was conducted in this case on August 17, 1987, at Florida State Prison, Starke, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Mr. Ervin J. Horton, pro se #037253 Post Office Box 747

Florida State Prison Starke, Florida 32091-0747

For Respondent: John J. Rimes, III, Esquire

Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

ISSUES

This is a rule challenge proceeding pursuant to Section 120.56, Florida Statutes. In his original petition the Petitioner sought to challenge several rules of the Department, as well as certain Department policy and procedure directives and internal operating procedures of Florida State Prison. At the hearing the scope of the issues was narrowed by agreement of the Petitioner to challenges to the following: Rule 33-3.005, Florida Administrative Code; Department of Corrections Policy and Procedure Directives 4.07.06 and 4.10.51; and Florida State Prison Institutional Operating Procedure No. 4-86.04.

BACKGROUND

At the conclusion of the hearing the parties agreed to waive the statutory deadlines for issuance of a final order and also agreed to a timetable of 30 days after the preparation of the transcript within which to file their proposed final orders. Several post-hearing motions were filed by the Petitioner. Those motions have been addressed by earlier orders. The Petitioner also filed three post-hearing documents which have been treated as his proposed final order.

Those documents are: Petitioner's Proposed Recommendation And Finding Of Facts, filed September 3, 1987; Petitioner's Supplement Authority & Support To Proposed Findings & Facts, filed September 24, 1987; and Petitioner's Notice To Correct

Citation Of Authority And Supplement Miscopied Exhibit, filed September 30, 1987. The Respondent filed a proposed final order on October 2, 1987.

The documents filed by the Petitioner which have been treated as his proposed final order consist primarily of conclusions of law and legal arguments, with a few non-argumentative factual assertions intermingled at random. Most of the assertions in the Petitioner's documents, factual, argumentative, or legal, are simply unintelligible. The small portion that is intelligible is, for the most part, irrelevant or incorrect. It would be an endless and unproductive task to attempt to categorize the shortcomings of each and every one of the sentences in the Petitioner's post-hearing documents.

Suffice it to say that the testimony and exhibits in this case have been carefully reviewed and the findings of fact which follow comprise all of the relevant facts which are supported by the evidence in this case, whether proposed by the Petitioner or not.

The Respondent has proposed very little in the way of findings of fact.

The substance of all of the findings proposed by Respondent has been included in the findings of fact which follow.

FINDINGS OF FACT

Based on the testimony at the final hearing and on the exhibits received in evidence, I make the following findings of fact.

1. The Petitioner, Ervin J. Horton, is an inmate in the custody of the Department of Corrections. The Petitioner is presently confined at Florida State Prison. At the time of the hearing in this case, the Petitioner was on confinement status and he has been on confinement status in the past.

   
   

2. Rule 33-3.005, Florida Administrative Code, has been adopted by the Department of Corrections. The title of the rule is "Legal Documents and Legal and Privileged Mail." The general subject matter of the rule concerns the preparation, mailing, and receipt of legal documents and legal mail by inmates. The rule is applicable to the Petitioner.

   
   

3. The Department of Corrections has adopted Policy And Procedure Directive Number 4.07.06, which is titled "Preparation And Processing Of Legal Documents And Legal Mail." This directive is for the most part a restatement of many of the provisions of Rule 33-3.005, Florida Administrative Code. The directive also includes a provision requiring each prison Superintendent to issue an institutional policy memorandum to effectuate the provisions of the directive.

   
   

4. The Department of Corrections has adopted Policy And Procedure Directive Number 4.10.51, which is titled "Law Libraries." The directive is in part a restatement of portions of Rule 33-3.005, Florida Administrative Code. However, for the most part it sets forth the Department's policies regarding the establishment, operation, and maintenance of prison law libraries. Portions of the directive contain limitations on the time, place, and manner in which inmates may use the law libraries.

   
   

5. The Superintendent of Florida State Prison has adopted Institutional Operating Procedure No. 4-86.04, which is titled "Preparation Of Legal Documents By Inmates." This is an institutional policy memorandum required by Policy And Procedure Directive Number 4.07.06. IOP No. 4-86.04 addresses the same general subject matter as is addressed by Policy And Procedure Directive Number 4.07.06.

   The IOP includes additional specific details for implementation of Policy And Procedure Directive Number 4.07.06 and Rule 33-3.005, Florida Administrative Code, at the Florida State Prison facility.

   
   

6. As a result of his status as an inmate at Florida State Prison, the Rule, the Policy And Procedure Directives, and the Institutional Operating Procedure described above are applicable to the Petitioner to the extent they regulate his activities within the scope of those documents. The documents described above in paragraphs 2, 3, 4, and 5 of these findings of fact are the only documents to which this rule challenge proceeding is addressed.

   
   

7. The testimony at the hearing consisted largely of anecdotal testimony regarding a long series of Petitioner's alleged individual problems within the State correctional system. Some of his problems have been real; others appear to probably have been imaginary. All of the problems described by Petitioner were largely irrelevant to the issues raised in the petition. And to the extent portions of Petitioner's testimony were relevant to the general subject matter at hand, the testimony did not tend to demonstrate that the challenged documents were invalid exercises of delegated legislative authority. The exhibits offered by Petitioner were of the same general tenor as his testimony.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sec. 120.56, Fla. Stat.

   
   

9. Rule 33-3.005, Florida Administrative Code, and especially subsections

   (4) and (9) of the Rule, are alleged by Petitioner to be invalid insofar as they allegedly permit a superintendent of an individual institution, when implementing the general strictures of Rules 33-3.005 and 33-3.051, to set forth individual procedures which Petitioner considers to be in violation of inmate rights guaranteed by various constitutional provisions and incorporated in Section 944.09, Florida Statutes. The authority to promulgate procedures at the individual institution level is limited by Rule 33-3.005 and by the language of the challenged Policy And Procedure Directives to the promulgation of procedures which comport with the requirements of the applicable rules and statutes. And in any event, the Institutional Operating Procedure complained of by Petitioner does not appear to be in conflict with any rule or statutory guarantee.

   
   

10. The language of Rule 33-3.005, Florida Administrative Code, has been carefully considered. There does not appear to be anything in the rule which exceeds or conflicts with the Department's statutory authority. There is nothing in the rule that appears to be arbitrary or capricious. The rule is not vague, it does not vest unbridled discretion in the agency, and it appears to contain adequate standards for agency decisions. In short, there is nothing about the rule which appears to be invalid.

    
    

11. The language of the challenged Policy And Procedure Directives and Institutional Operating Procedure has also been carefully considered. As with the underlying rule, there does not appear to be anything irregular or invalid in these documents.

12. With regard to the challenged Institutional Operating Procedure, attention is also directed to Adams v. Barton, 507 So.2d 665 (Fla. 1st DCA 1987), where the court stated:

    
    

    This court has previously held that individual prisons are not administrative agencies and that IOP's are not rules subject to challenge under section 120.56, Florida Statutes (1985). [citations omitted] Thus, the trial court correctly ruled that the IOP could not be challenged as an unpromulgated rule.

    
    

    In the Adams case quoted above, the court went on to note that an Institutional Operating Procedure can only be challenged under the administrative grievance procedure or by means of an appropriate proceeding challenging the underlying rule. There being no meritorious challenge to any rule, there is no basis for a challenge to the Institutional Operating Procedure in this case.

    
    

13. By way of conclusion, it is noted that Petitioner's main purpose in this case appears to be an attempt to use a Section 120.56 rule challenge petition as a vehicle for relitigating his inmate grievances and, indeed, the very fact of his incarceration. This is not the first time this Petitioner has attempted to use a Section 120.56 rule challenge petition for such purposes. See Horton v. Dept. of Corrections, 9 FALR 2270 (April 24, 1987); Horton v. Dept. of Corrections, DOAH Case No. 87-2587R (Final Order of Dismissal issued June 17, 1987); Horton v. Dept. of Corrections, DOAH Case No. 87-3879R (Final Order issued October 6, 1987). As noted in the orders cited immediately above, a Section 120.56 rule challenge petition is an inappropriate vehicle for the relitigation of inmate grievances or criminal convictions.

For all of the foregoing reasons, it is ORDERED:

That the petition in this case is hereby dismissed in its entirety.

DONE AND ORDERED this 4th day of November, 1987, at Tallahassee, Florida.

COPIES FURNISHED:

Mr. Ervin J. Horton, #037253 Post Office Box 747

Florida State Prison Starke, Florida 32091-0747

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1987.

John J. Rimes, III, Esquire Assistant Attorney General Department of Legal Affairs Suite LL04, The Capitol Tallahassee, Florida 32399-1050

Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard

Tallahassee, Florida 32399-2500

Liz Cloud, Chief

Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures

Committee

Room 120, Holland Building Tallahassee, Florida 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 THE APPROPRIATE 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 THE RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 87-002908RX

Orders for Case No: 87-002908RX