Conraad L. Hoever v. Fla. Dept. of Corrections , 156 So. 3d 543 ( 2015 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CONRAAD L. HOEVER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D13-5007
FLA. DEPT. OF CORRECTIONS,
Appellee.
___________________________/
Opinion filed January 20, 2015.
An appeal from an order of the Circuit Court for Leon County.
Terry P. Lewis, Judge.
Conraad L. Hoever, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Conraad Hoever appeals an order dismissing his petition for writ of mandamus
as moot and for failure to properly exhaust his administrative remedies. We reverse.
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Appellant filed a series of grievances challenging a disciplinary report he
received for possession of contraband. One of his formal grievances was denied by the
warden on October 28, 2011. Appellant appealed this denial to the Office of the
Secretary of the Department of Corrections (DOC). He dated his grievance appeal
form November 8, 2011, and signed it. However, the bottom portion of the grievance
form, labeled “Receipt for Appeals Being Forwarded to Central Office,” was marked
as submitted by appellant on November 15, 2011. The Office of the Secretary returned
the grievance appeal without action, finding it was “received in non-compliance” with
Florida Administrative Code Rule 33-103.014(1)(i), which provides that a grievance
appeal must be received in the office within fifteen calendar days of the response to the
formal grievance.
Appellant then filed a petition for writ of mandamus in the circuit court. He
alleged that he placed his grievance appeal in the “grievance box” on November 8,
2011, that the grievance department at his correctional facility was not properly
responding to inmate grievances, and that he should not be subjected to an unattainable
policy based on the institution’s deficiency. The circuit court dismissed the petition,
finding that appellant had not properly exhausted his administrative remedies because
he had not perfected his appeal at the Office of the Secretary. Moreover, the court
found, the record clearly refuted appellant’s allegation that he timely filed his
grievance appeal on November 8, because it demonstrated that appellant did not give
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the appeal to prison officials for mailing to the Office of the Secretary until November
15. The court found that appellant did not show that his grievance appeal was
improperly handled, because he failed to overcome the presumption that public
officials act properly in the performance of their duties, citing Purdy v. Mulkey, 228
So. 2d 132, 136 (Fla. 3d DCA 1969). Finally, the court found that any challenge to the
grievance process at appellant’s correctional facility was moot, as appellant had since
been transferred to a new facility and was no longer subject to that grievance policy.
“An appeal from an order dismissing a petition for writ of mandamus is
reviewed by this court de novo. ‘One seeking a writ of mandamus must establish the
existence of “a clear legal right to the performance of a clear legal duty by a public
officer and that . . . no other legal remedies [are] available.”’” Waters v. Dep’t of
Corr., 144 So. 3d 613, 615 (Fla. 1st DCA 2014) (citations omitted). “A petition for
writ of mandamus filed in the circuit court is the correct manner for an inmate to
challenge a determination that a grievance appeal is untimely.” Id. at 615 n.3.
Under Florida Administrative Code Rule 33-103.007, an inmate may appeal the
result of a formal grievance to the Office of the Secretary, and indeed, must take such
an appeal to exhaust his administrative remedies. See, e.g., Jackson v. Parkhouse, 826
So. 2d 478, 479 (Fla. 1st DCA 2002). Florida Administrative Code Rule 33-
103.006(8) contains the mailing procedures for such inmate grievances:
(8) Mailing Procedures. The warden or person designated in Rule 33-
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103.002, F.A.C., shall establish a procedure in the institution or facility
under his supervision for processing those grievances that require
mailing. Inmates who are filing grievances that require mailing shall be
required to utilize the procedure set forth in this rule when processing
their grievances or appeals to the reviewing authority of community
facilities or the Bureau of Policy Management and Inmate Appeals in
central office. The institution or facility shall provide postage for
grievances submitted through this process. Procedures implemented shall
include, at a minimum, the following:
(a) The establishment of an office through which grievances shall be
processed.
(b) The establishment of a logging and tracking system to record and
document receipt and mailing of inmate grievances.
(c) A requirement that the staff person designated to accept the
grievance to be mailed shall:
1. Complete the receipt portion of Form DC1-303 for appeals being
forwarded to central office by entering a log/tracking number and date of
receipt and sign as the recipient.
2. Record receipt of the grievance in the institutional log. The staff
person shall not read or classify the grievance.
3. Place the grievance in the mail through the institution or facility
mail service within one workday.
(d) The inmate shall have his grievance ready for mailing at the time
he turns it over to staff for processing as described in paragraph (c)
above. Once this process has been completed, the grievance will not be
returned to the inmate. If the inmate desires his grievance to be
forwarded in a sealed envelope, the inmate shall provide to the staff a
properly addressed envelope so that once the grievance is processed by
staff, the grievance can be placed into the envelope and sealed for
forwarding.
(e) If the inmate elects to mail the grievance to central office directly
and bypass the logging/tracking process, the inmate may submit his or her
grievance in a sealed envelope to be placed in the institutional bulk mail
that is to be mailed daily to central office.
(f) Upon receipt of a mailed grievance by the reviewing authority as
defined in subsection 33-103.002(15), F.A.C., the following shall occur:
1. The decision of whether or not the grievance has been timely filed
by the inmate shall be made based upon the following comparisons:
a. In the case of a formal grievance being filed, by comparing the
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receipt date on Form DC1-303 to the response date of the informal
grievance.
b. In the case of a grievance being filed directly at the institutional
level, by comparing the receipt date on Form DC1-303 to the date of the
incident or situation giving rise to the complaint.
2. The receiving office shall review the grievance and determine the
classification of the grievance and enter the same on the receipt that is
returned to the inmate.
3. The receiving office shall then process the grievance filed by the
inmate in accord with the provisions set forth in Rule 33-103.006 or 33-
103.007, F.A.C., as appropriate.
DOC argues in its brief that the process set out in this rule provides an inmate the
opportunity to have his grievance receipted at the institution, so that the inmate’s
grievance will be deemed filed on the date on which it is received. 1 DOC argues that
because the rule requires the receipting staff member to complete the receipt section
upon receipt of the grievance, this section of the form is “dispositive of the fact that
appellant did not hand over his grievance for mailing on November 8, 2011, as he
claims.” 2
We disagree that the form clearly refutes appellant’s allegation that he timely
1
The “mailbox rule” was extended to grievance appeals in Gonzalez v. State, 604
So. 2d 874, 876 (Fla. 1st DCA 1992): “[W]here an appeal from a grievance procedure
must be received by the Department within 15 calendar days of the date of the
institutional response, under the mailbox rule the appeal is deemed ‘received’ by the
Department ‘at the moment in time when the inmate loses control over the document
by entrusting its further delivery or processing to agents of the state.’” (quoting Haag
v. State, 591 So. 2d 614, 617 (Fla. 1992)).
2
We note that the record does not contain a copy of the institutional log provided
for in Florida Administrative Code Rule 33-103.006(8)(c)2.
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submitted his grievance on November 8. In Crews v. Malara, 123 So. 3d 144, 146
(Fla. 1st DCA 2013), this court found that because DOC had “established a procedure
for tracking the date that legal mail changes hands for purposes of establishing
jurisdictional timeframes in court proceedings . . . DOC has a mechanism to rebut the
presumption [established by] the inmate’s assertion that his pleading was actually
placed in the hands of prison or jail officials on a particular date.” (Emphasis
supplied.) Notably, the procedure for legal mail requires the prison staff member to
date stamp outgoing legal mail in the inmate’s presence, and have the inmate initial the
stamp and seal the envelope in the staff member’s presence. Id. (citing Florida
Administrative Code Rule 33-210.102(8)(g)). In contrast, the procedure set out in
Rule 33-103.006(8)(c) for receiving grievance appeals only requires the staff member
to enter the date he or she received the grievance appeal. There is no initialing process
to establish that the date of receipt is the same as the date the inmate places his appeal
in the “grievance box.” Thus, in the case of mailed inmate grievance appeals, unlike
the process for legal mail, DOC has no mechanism to rebut the presumption that
appellant timely handed over his grievance appeal for processing and mailing. See
Thompson v. State, 761 So. 2d 324, 326 (Fla. 2000) (“[H]enceforth we will presume
that a legal document submitted by an inmate is timely filed if contains a certificate of
service showing that the pleading was placed in the hands of prison or jail officials for
mailing on a particular date . . . . This presumption will shift the burden to the state to
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prove that the document was not timely placed in prison officials’ hands for mailing.”).
The receipt initialed only by a prison staff member, outside of appellant’s
presence, does not necessarily refute petitioner’s allegation that he submitted the
grievance on November 8, but that prison officials did not mark it received until
November 15. By simply offering the signed receipt, DOC did not rebut appellant’s
claim that he timely submitted his grievance appeal on November 8. Accordingly,
appellant had the right to a response to his timely grievance appeal challenging his
disciplinary report. We therefore reverse the circuit court’s dismissal of the petition
and remand for entry of the writ.
WOLF, CLARK, and SWANSON, JJ., CONCUR.
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