Sandsbury Lee v. Richard L. Dugger , 902 F.2d 822 ( 1990 )

PER CURIAM:

Florida prison inmate Sandsbury Lee appeals a summary judgment for Corrections Secretary Richard Dugger in Lee’s 42 U.S. C.A. § 1983 suit seeking damages, alleging that he was incarcerated longer than he should have been on a prior sentence because he was not credited with the proper gain-time. We affirm.

Lee was received by the state prison system in April 1981 to serve a 5-year sentence. For a 13-month period between May 1982 and June 1983, Lee was held in “close confinement” and was not awarded gain-time.

In August 1983, Lee wrote to the Department contending that an amendment of the state’s gain-time statute, Fla.Stat. § 944.275, required that an additional 130 days of gain-time be deducted from his sentence; 10 days for each of the 13 months of close confinement. The Department responded that Lee was not entitled to an additional sentence reduction because his gain-time had been “withheld” due to “unsatisfactory adjustment” and that the new wording of the statute did not change this.

In determining when an inmate will be released, the Department is required by § 944.275 to set two target dates. The first date is the “maximum sentence expiration date” which is the date when the inmate’s full sentence expires, giving credit for any jail time served. The Department is also required to set a “tentative release date” which is computed by deducting gain-time from the maximum expiration date.

According to an affidavit by the Department’s Admission and Release Administrator, a computer calculates the “tentative release date” by deducting from the maximum release date all the potential basic gain-time days which could be earned over the entire sentence assuming the prisoner takes advantage of every opportunity to earn gain-time. Thus, in Lee’s case, 600 days, which equals 10 days of basic gain-time for each of the 60 months in his 5-year sentence, was subtracted from the maximum release date. When an inmate fails to earn gain-time, the Department adds those days back into the computation, increasing the tentative release date. In Lee’s case, 130 days was added back into his sentence for the period when he was held in close confinement.

In March 1984, however, in the first case construing this portion of the new statute, Florida’s First District Court of Appeal determined that the Department had no authority to increase the tentative release date by adding days of unearned gain-time. Baranko v. Wainwright, 448 So.2d 1067 (Fla. 1st DCA 1984). The court concluded that unless the time had been “forfeited” through proper statutory procedures, the Department could not increase the tentative release date.

Lee brought this decision to the attention of Department officials, but was apparently told that the case did not apply to him. Lee then filed a habeas corpus petition, to which the Department argued that Baran-ko had been wrongly decided and urged the court to overturn it. The court granted Lee habeas corpus relief and he was released in November 1984. In September 1987, Lee filed this § 1983 action for money damages, contending that he had been incarcerated 12 months past the proper release date.

Government officials have qualified immunity from suits for damages if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Here, only one case, decided by an intermediate appellate court, had construed the new statute, which falls short of the clarity of the law required to defeat a defense of qualified immunity. See Ward v. County of San Diego, 791 F.2d 1329 (9th Cir.1986), cert. denied, 483 U.S. 1020, 107 S.Ct. 3263, 97 L.Ed.2d 762 (1987) (decision of one state court upholding constitutionality of strip search policy not enough to shield officials from liability.) The Department’s interpretation of the law was a reasonable one and the Department was entitled to attempt to persuade the same court that its prior decision was in error.

AFFIRMED.