Opinion
No. 1D19-2174
07-15-2020
Steve IVORY, Petitioner, v. STATE of Florida, Respondent.
Steve Ivory, pro se, Petitioner. Ashley Moody, Attorney General, and Kelly R. Forren, Assistant Attorney General, Tallahassee, for Respondent.
Steve Ivory, pro se, Petitioner.
Ashley Moody, Attorney General, and Kelly R. Forren, Assistant Attorney General, Tallahassee, for Respondent.
B.L. Thomas, J. In this Sheley certiorari proceeding, Petitioner challenges disciplinary action taken against him by the Department of Corrections (Department). For the reasons that follow, we deny the petition for writ of certiorari on the merits.
Sheley v. Fla. Parole Comm'n , 703 So. 2d 1202 (Fla. 1st DCA 1997).
In January 2018, the Department issued a disciplinary report against Petitioner after receiving a complaint that Petitioner was extorting money from another inmate's wife. The disciplinary team found Petitioner guilty, placed him in disciplinary confinement, and declared a forfeiture of 30 days' gain time.
Petitioner filed a petition for writ of mandamus in the circuit court, arguing that the disciplinary proceedings did not comport with the requirements in Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The Department failed to attach the complaint or the disposition of the investigation to the disciplinary report. This prevented him from demonstrating that the complaint was mischaracterized by the investigating officer. The circuit court dismissed the mandamus petition. It found that, because Petitioner was serving a life sentence rather than a term of years, and the duration of his detention was not at stake, no liberty interest attached to the disciplinary action. As Petitioner had no due process liberty interest, the petition failed to state a claim upon which relief could be granted.
The circuit court correctly dismissed the petition on the merits. In order to receive relief in this case, Petitioner must first show a liberty interest that gives rise to the protections of the due process clause. See Sandin v. Conner , 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). As the circuit court correctly stated, Petitioner did not demonstrate any liberty interest that would implicate due process protections. See id. at 484, 115 S.Ct. 2293 (holding that, while prison regulations may create liberty interests that are protected by the due process clause, those interests are generally limited to freedom from restraint that impose "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life"). No liberty interest was implicated here because Petitioner is serving a life sentence and, as such, the forfeiture or addition of gain time does not affect the length of his incarceration. See John v. Crews , 149 So. 3d 149 (Fla. 1st DCA 2014) (stating that inmates serving life sentences are ineligible for gain time). Section 944.275(4)(b), Florida Statutes, provides that prisoners sentenced to life imprisonment shall be incarcerated for the rest of their natural lives, unless granted pardon or clemency. See also Fla. Admin. Code R. 33-603.402(1)(a)5 (providing that an inmate serving a sentence with no definite term, such as a life sentence, shall not be eligible to receive or accumulate gain time). Whether Petitioner will be granted a pardon or clemency is too unpredictable at this time to demonstrate a liberty interest for Petitioner. In addition, under Sandin , Petitioner does not have a liberty interest in remaining free from disciplinary confinement. 515 U.S. at 472, 115 S.Ct. 2293. Thus, no liberty interest protected by the due process clause was implicated in the disciplinary proceedings in this case.
Petitioner argues that the disciplinary report negatively affected his participation in programs and his classification status. However, these arguments do not raise any due process liberty interests. See Moody v. Daggett , 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (stating that no due process protections required for prison classifications and qualification for institutional programs); Adams v. James , 784 F.2d 1077 (11th Cir. 1986) (holding that prisoner has no property interest in continuation of job assignment); see also Solliday v. Fed. Officers , 413 Fed. Appx. 206 (11th Cir. 2011) (holding that prisoner had no liberty interest in conditions of confinement).
Petitioner further alleges that the Department did not follow its own rules concerning the investigation of the disciplinary report and his request to present evidence to the disciplinary team. As Petitioner has not shown a liberty interest, he is not entitled to even the minimal due process protections in Wolff , such as (1) advance notice of the charges, (2) an opportunity to call witnesses and present evidence, and (3) a written statement by the fact finding setting forth the reasons for the disciplinary actions and the evidence relied upon. Thus, Petitioner cannot show an entitlement to relief on his claims that the Department failed to follow these rules.
Finally, Petitioner raised for the first time in his petition for writ of certiorari before this Court a claim of retaliation. Because he did not raise the claim in the circuit court, it is considered waived. See, e.g., Hernando HMA, LLC v. Erwin , 208 So. 3d 848 (Fla. 5th DCA 2017).
DENIED .
Ray, C.J., and Kelsey, J., concur.