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Keith N. Smith v. State of Florida Parole

December 16, 2011

KEITH N. SMITH, PLAINTIFF,
v.
STATE OF FLORIDA PAROLE AND PROBATION COMMISSION; PAMELA CARWISE; HAL WILLIAM LEST, DEFENDANTS.



OPINION AND ORDER

This matter comes before the Court upon review of the Motion to Dismiss (Doc. #20, Motion) filed on behalf of Defendants State of Florida Parole and Probation Commission, Parole Examiners Pamela Carwise and Hal William Lest on May 20, 2011. Plaintiff filed a Response (Doc. #22, Response) and attached exhibits (Doc. #22-1, Pl's Exhs. A-C) consisting of a copy of the envelope that was used to mail the Defendants' Motion, an affidavit from himself, and an affidavit from Florida Civil Commitment Center resident Tom Barker.*fn1 This matter is ripe for review.

I. Status

Keith N. Smith, a pro se plaintiff who is civilly committed at the Florida Civil Commitment Center ("FCCC"), initiated this action by filing a Civil Rights Complaint pursuant to 42 U.S.C. § 1983 with attached supporting exhibits (Doc. #1-1, Pl's Exhs.). See Complaint at 1-2; see generally Pl's Exhs. Plaintiff sues the Florida Parole and Probation Commission (hereinafter "FPC") and two parole examiners, who Plaintiff claims were involved in the erroneous violation of his conditional release, in their official and individual capacities. Complaint at 1-4. Plaintiff alleges Defendants violated his Fourth and Fourteenth Amendment rights protected under the United States Constitution, as well as "pendent State constitutional and tort claims." Id. at 2.

The incident giving rise to the cause of action stems from the FPC's decision to violate Plaintiff's conditions of release despite the parole examiner's finding that Plaintiff did not willfully violate any conditions, which resulted in Plaintiff's removal from the FCCC and imprisonment with the Department of Corrections. See generally Complaint at 3; see also Pl's Exhs. According to the Complaint, on an unspecified date the FPC mailed Plaintiff a notice advising him that a hearing would commence on September 22, 2009, at DeSoto County Jail, to determine whether Plaintiff violated the following conditions:

1. Violated Condition 8(d) by failing to promptly and truthfully answer all questions and follow all instructions asked or given to him by his Conditional Release Officer or the Commission, in that on July 9, 2009, Plaintiff was instructed to sign up for sex offender treatment, and that he failed to do so as of July 31, 2009.

2. Violated Special Condition 24 which states, "You shall participate during your Conditional Release term, in a sex offender treatment program, at your own expense, until a determination is made by authorities of the program that you are no longer in need of said treatment, or you complete your term of supervision, whichever occurs first," in that he was instructed on July 9, 2009, to sign up for sex offender treatment, and this he has failed to do.

See Pl's Exh. at 1.

On September 22, 2009, the FPC held Plaintiff's hearing. Mr. Walker, a FCCC Clinician who Plaintiff identifies as his "treatment therapist/case manager," testified that Plaintiff was "signed up for sex offender treatment" at the FCCC and was attending "phase 1" of the program. Complaint at 3. At the conclusion of the September 22, 2009 hearing, the parole examiner, Defendant Lest, completed the FPC documentation finding that Petitioner was "not guilty/not willful" of violating conditions 8(d) and 24. Pl's Exh. at 3. Nonetheless, Plaintiff alleges that the FPC "chose to violate [Plaintiff's] conditional release anyway" and send him to the Department of Corrections, specifically the Central Florida Reception Center, for a five-day period of time. Complaint at 1, 3; Pl's Exh. Doc. #1-1 at 4. As a result of the FPC's actions, Plaintiff was removed from his treatment group at the FCCC and upon his return to the FCCC was forced to start at the beginning of the sex offender treatment program. Id. at 4. Plaintiff seeks $100,000 in monetary damages, punitive damages, an injunctive order, costs and reasonable attorney's fees, and any other relief the Court deems proper. Id. at 4.

Defendants move to dismiss and first claim that Plaintiff has failed to comply with Fed. R. Civ. P. 8(a)(2) because the Complaint is a "quintessential shot gun pleading." Motion at 5. The Court disagrees with Defendants and finds that the pro se Complaint complies, in pertinent part, with Fed. R. Civ. P. 8. Defendants also move to dismiss, claiming that the FPC is not a "person" under section 42 U.S.C. § 1983 and that the individual parole officers are entitled to "judicial immunity." Id. at 8-10. Defendants also raise qualified immunity as to any claims against the officers in their individual capacities, as well as Eleventh Amendment immunity. Id. at 7-8; 10-15. For the reasons herein, the Court will grant in part and deny in part the Defendants' Motion.

II. Motion to Dismiss Standard

In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its consideration to well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Thus, the Court must accept all factual allegations in Plaintiff's Complaint as true and take them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Conclusory allegations, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1951 (2009)(discussing a 12(b)(6) dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n.16 (11th Cir. 2001).

The Court employs the Twombly-Iqbal plausibility standard when reviewing a complaint subject to a motion to dismiss. Randall v. Scott, 610 F.3d 701, 708, fn. 2 (11th Cir. 2010). A claim is plausible where the plaintiff alleges facts that "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ____, 129 S. Ct. 1937, 1949 (2009). The plausibility standard requires that a plaintiff allege sufficient facts "to raise a reasonable expectation that discovery will reveal evidence" that supports the plaintiff's claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); Marsh, 268 F.3d at 1036 n.16. Specifically, "[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). Thus, "the-defendant-unlawfully harmed me accusation" is insufficient. Ashcroft, 129 S. Ct. at 1949. "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id.

A complaint must satisfy the pleading requirements of Fed. R. Civ. P. 8 by simply giving the defendant fair notice of what the plaintiff's claims are and the grounds upon which they rest. Conley v. Gibson, 355 U.S. 41 (1957). However, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." See Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 1968-69 (citations omitted) (abrogating Conley, 355 U.S. 41 in part and stating that Conley did not set forth the minimum standard governing a complaint's survival under a motion to dismiss, rather the case "described the breadth of opportunity to prove what an adequate complaint claims"). Additionally, there is no longer a heightened pleading requirement. Randall, 610 F.3d at 701. Because Plaintiff is proceeding pro se, his pleadings are held to a less ...


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