Petition for Writ of Mandamus: ADMINISTRATIVE – petition for writ of mandamus is proper appellate means to seek review of inmate disciplinary action – claims enumerated in petition and supporting appendix were not refuted by respondent – respondent failed to investigate and to produce relevant documentation without providing any reason for denying the request  - Petition granted.  Perrot v. Rice, No. 02-5002CI-88B (Fla. 6th Cir. App. Ct. July 23, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION


 

GARY L. PERROT,

                                    Petitioner,

vs.                                                                                           

EVERETT RICE, SHERIFF,

PINELLAS COUNTY, FLORIDA,

                                    Respondent.

________________________________/

 

 

 

Case No. 02-5002-CI-88B

UCN522002CA005002XXCICI

 

 

 

 


 

 

ORDER GRANTING PETITION FOR WRIT OF MANDAMUS

 

THIS CAUSE came before the Court on the Petition for Writ of Mandamus, filed on June 21, 2002, by Gary L. Perrot (Perrot), and the Response, filed by Everett Rice, Sheriff, Pinellas County, Florida (Rice).  Upon consideration of the same, the record and being otherwise fully advised, the Court finds that the Petition must be granted as set forth below.

Perrot, an inmate at the Pinellas County Jail, was charged, on May 28, 2002, with a violation of Destruction of Government Property for being in possession of a torn sheet.  After a hearing, a Disciplinary Report was entered finding Perrot guilty of the charge and ordered Perrot to pay $4.13 for the sheet, which was taken from his account.   Perrot’s appeal was denied on June 10, 2002, by the Division Commander or designee.

Perrot makes several claims in support of his argument for this Court to issue a writ directing Rice to overturn and expunge this Disciplinary Report and for Rice to deposit $4.13 back into his inmate account.  Perrot argues that Rice’s actions in the disciplinary proceedings below violated the provisions of the Inmate Handbook and denied him due process of law for several reasons, including that Rice failed to interview or call several witnesses listed by Perrot to the disciplinary hearing; [1] one listed witness, Corporal Gurilla, was permitted to sit on the disciplinary review team;  two inmates, who also allegedly had torn sheets but not issued a disciplinary report, were not allowed to be called as witnesses; Rice failed to conduct a fair and impartial hearing; Rice failed to enter findings and to sufficiently described the offense; Rice failed to produce evidence that Perrot had actually destroyed government property, including the alleged torn sheet; and failed to produce demanded documentary evidence that would have shown that Perrot had not exchanged linen for the previous three weeks.  Rice responds that the Court is without jurisdiction over the Respondent due to insufficient service of process, that the Court is without subject matter jurisdiction, that Perrot has failed to exhaust his administrative remedies, and that, in any case, Perrot is not entitled to mandamus relief as he has failed to show the violation of any legal right or that Rice failed to perform a ministerial duty.

In addressing the jurisdictional issues, the Court finds that a summons was unnecessary to perfect service on Rice because this is an appellate proceeding.  See Fla. R. App. P. Rule 9.420(c).  The Petition does contain a certificate of service showing that Rice was furnished with the Petition, and Rice does not contend that it did not receive it.  Further, while it is true that Rice is not an agency subject to the Administrative Procedure Act, [2] it does not follow that Perrot is without an appellate remedy.  This situation is akin to review of Parole Commission decisions on an inmate’s presumptive release date.  The Florida Supreme Court has ruled that where there was no appellate remedy in such cases, review by mandamus is an appropriate remedy.  See e.g. Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998); Griffith v. Florida Parole Commission and Probation Commission, 485 So.2d 818 (Fla. 1986); Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla. 1974).  The same principle logically applies to the instant case.

 Additionally, there are many analogous situations dealing with disciplinary action or other decisions made within the correctional context, which make clear that mandamus is the appropriate remedy to seek review of disciplinary action allegedly conducted in violation of constitutional requirements or rules such as those promulgated by the sheriff’s office.   See e.g. Pettit v. Crosby, 862 So.2d 865 (Fla. 1st DCA 2003); Ortiz v. Moore, 776 So.2d 333 (Fla. 1st DCA 2001); Franz v. Moore, 778 So.2d 1003 (Fla. 1st DCA 2000); Woullard v. Bishop, 734 So.2d 1151 (Fla. 1st DCA 1999); Sheley v.Florida Parole Commission, 703 So.2d 1202 (Fla. 1st DCA 1997); Holcomb v. Dept. of Corrections, 609 So.2d 751 (Fla. 1st DCA 1992).  However, exhaustion of administrative remedies is a necessary prerequisite to seeking judicial review of a mandamus claim.  See Woullard, 734 So.2d at 1152.  In reviewing the record, the Court finds that Perrot did exhaust his administrative remedies below when he timely filed his appeal of the Disciplinary Report within 30 days, as set forth in the Inmate Handbook, B.6., which Rice then denied.  Therefore, the Court has appellate jurisdiction to review Perrot’s request for mandamus relief of the disciplinary action taken by Rice below.

Accordingly, the Court finds that Perrot is entitled to mandamus relief as the claims enumerated in the Petition and supporting Appendix, which Rice has not refuted, show that several recognized rights were denied without explanation.  See Pettit v. Crosby, 862 So.2d 865, 866 (Fla. 1st DCA 2003)(finding that petitioner raised a mandamus claim regarding the denial of his request for witnesses at a disciplinary hearing when the witnesses were identified, testimony was proffered and petitioner explained why testimony was relevant and material); Frantz, 778 So.2d at 1005 (concluding that Petitioner was denied due process when investigator failed to interview requested witnesses and failed to produce a requested video tape without providing a valid reason); Holcomb, 609 So.2d at 755 (setting forth what petitioner should allege in petition to show improper denial of requests to call witnesses).  The record shows that Perrot provided Rice with a specific list of witnesses and explained why the testimony of these witnesses was relevant and material.  However, Rice refused to call or conduct interviews of the requested witnesses, apparently for the sole reason that the disciplinary hearing was not “a courtroom.”  Rice also failed to investigate and to produce relevant documentation, including the alleged torn sheet, without providing any reason for denying the request. 

As held in Mariah v. Moore, 765 So.2d 929, 930-31 (Fla. 1st DCA 2000), “[w]hile a disciplinary team may exclude evidence if it is immaterial, irrelevant, or repetitive, they should not prejudge the weight to be given to testimony or evidence prior to it being presented.”  Therefore, the Court finds that Perrot has suffered the loss of a protected property right, albeit it a small amount of property, [3] without being afforded due process in the proceedings below.  Although prison administrators are accorded wide-ranging deference in the adoption and execution of policies and practices, they still must adhere to principles of due process as the cases cited above illustrate. 

Therefore, it is,

 

 

ORDERED AND ADJUDGED that the Petition for Writ of Mandamus is granted and the Disciplinary Report, entered May 28, 2002, is quashed.  Rice shall refund the $4.13 fine assessed against Perrot.  If Rice chooses further action below in conjunction with this matter, Rice may conduct the proceedings anew in compliance with the due process requirements recognized in this order and opinion. 

DONE AND ORDERED in Chambers, at St. Petersburg, Pinellas County, Florida this _____ day of July 2004.

 

 

 

                                                            ____________________________________

                                                            DAVID A. DEMERS

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Gary L. Perrot #308341

Okeechobee Correctional Institution

3420 N.E. 168th Street

Okeechobee, FL  34972

 

Jean H. Kwall, Esquire

P.O. Drawer 2500

Largo, FL  33779-2500



[1] The witnesses included:  Gary Norlander, Corporal Gurilla, Officer Katsouris, and three inmates. 

[2] See Bryant v. Beary, 665 So.2d 385, 386 (Fla. 5th DCA 1996)(concluding that the sheriff’s office was not subject to the Administrative Procedures Act).

[3] The cost of the torn sheet, Perrot’s damages, is $4.13.