                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

ROBERT E. BANKS,                       NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Petitioner,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D15-0330

JULIE L. JONES, SECRETARY,
FLORIDA DEPARTMENT OF
CORRECTIONS,

     Respondent.
__________________________/

Opinion filed July 12, 2016.

Amended Petition for Writ of Certiorari - - Original Jurisdiction.

Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for
Petitioner.

Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee;
Pamela Jo Bondi, Attorney General, Susan A. Maher, Chief Assistant Attorney
General, Lance Eric Neff, Senior Assistant Attorney General, Sean W. Gellis and
Daniel A. Johnson, Assistant Attorneys General, Tallahassee, for Respondent.


                                     EN BANC

B.L. THOMAS, J.

      Petitioner is a state prisoner assigned to Close Management residential status

for spitting in the face of a psychiatrist attempting to interview him. The

Department form reporting the incident stated that Petitioner repeatedly cursed the

doctor and staff, and when ordered to leave the doctor’s office, Petitioner then
stood up and spat in the doctor’s face, requiring Department security staff to escort

Petitioner out of the office and place him in confinement pending resolution of the

incident. Based on the incident, a disciplinary report was filed against Petitioner,

and a referral for Close Management assignment was issued. Close Management

is a prison classification imposing more restrictive conditions promulgated to

ensure institutional order and safety in Department of Corrections’ facilities.

Petitioner challenged his assignment to Close Management by filing a petition for

writ of habeas corpus.

      Claims filed by state prisoners challenging Close Management classification

do not assert that the inmate is entitled to release from incarceration but only assert

a right to remain in the prison’s general population; therefore, such claims do not

implicate a constitutionally-protected liberty interest. Because our prior decisions

holding to the contrary relied on an analytical foundation built on Hewitt v. Helms,

459 U.S. 460 (1983), rejected more than 20 years ago by the United States

Supreme Court in Sandin v. Conner, 515 U.S. 472 (1995), and because habeas

corpus review of such claims does not accord the proper deference due the

Executive Branch, which must carry out the daunting and dangerous task of

ensuring the safety of state prisons, we recede from prior decisions of this court

which hold that challenges to Close Management housing assignments may be

asserted by petition for writ of habeas corpus. See Magwood v. Tucker, 98 So. 3d



                                          2
725 (Fla. 1st DCA 2012) (holding that prisoner’s challenge to Close Management

classification, based on disciplinary report which was challenged by petition for

writ of mandamus in the Circuit Court for Leon County, must be considered by

petition for writ of habeas corpus in the Circuit Court for Santa Rosa County in

which prisoner was incarcerated); Kendrick v. McNeil, 6 So. 3d 657 (Fla. 1st DCA

2009) (citing precedent dating back to 1987 holding that circuit court improperly

treated claims challenging Close Management classification as arising in

mandamus rather than habeas corpus, and ordering that liens placed on inmate’s

account be refunded, as no fee could be charged for filing petition for writ of

habeas corpus, but otherwise denying certiorari relief); Thompson v. Dugger, 509

So. 2d 391, 392 (Fla. 1st DCA 1987) (“Although an inmate has no constitutional

due process right to notice and a hearing before his confinement status is changed,

such right may be created by state law.”).

      We now hold that a prisoner’s claim that he has been improperly assigned to

Close Management classification does not state a claim for relief by writ of habeas

corpus under Article I, section 13 of the Florida Constitution or under the Due

Process Clause of the Fourteenth Amendment to the United States Constitution.

Thus, we hold that such a claim can only be considered by petition for writ of

mandamus, asserting that the Department has not complied with its own Close

Management procedures and filed in the Second Circuit Court in Leon County, as



                                         3
are other claims challenging disciplinary reports issued in state prisons.       See

generally Holcomb v. Dep’t of Corrections, 609 So. 2d 751 (Fla. 1st DCA 1992)

(holding that circuit court must first evaluate a prisoner’s petition to determine

sufficiency of allegations, and if insufficient, court may deny relief or dismiss

insufficient claims; where petition alleges sufficient claims, court must issue order

to show cause why requested relief should not be granted, and once issued, order to

show cause “becomes in all respects the complaint,” and response must admit or

deny factual allegations); see, e.g., State ex. rel. Haley v. Groose, 873 S.W.2d 221,

223 (Mo. 1994) (treating petition for writ of habeas corpus challenging placement

in protective custody for refusing to submit to DNA testing as petition for writ of

mandamus, ordering prison to conduct review hearing, and noting that because

prisoner’s claim failed to allege cruel and unusual punishment, “habeas corpus is

not available to attack the conditions of his confinement”). Further review of

circuit court orders in cases involving challenges to Close Management assignment

shall be by second-tier certiorari review in this court.     Sheley v. Fla. Parole

Comm’n, 720 So. 2d 216 (Fla. 1998); Plymel v. Moore, 770 So. 2d 242 (Fla. 1st

DCA 2000). In addition to our holding today, we also certify conflict with the

Fifth District Court of Appeal in Holland v. State, 791 So. 2d 1256 (Fla. 5th DCA

2001), which cites prior decisions of this court from which we now recede.




                                         4
                                    Background

      Petitioner is serving a 30-year prison sentence for his conviction of robbery.

While serving his prison sentence, he received a disciplinary report for the actions

noted above. The Department of Corrections (the Department) found Petitioner

guilty of Department rules, placed him in disciplinary confinement, and revoked

364 days of gain time. In addition, the Department issued a referral which

reassigned Petitioner to Close Management I housing classification and removed

him from the general population, based on committing an act “causing injury or an

act which could have resulted in injury to another.” After Petitioner challenged the

referral, asserting that the reassignment did not comply with Department rules, the

Department conducted a multi-step review, first considering Petitioner’s arguments

at the institutional level and culminating in final review by the State Classification

Officer in Department headquarters. Affirming the institutional staff’s referral, the

State Classification Officer upheld the decision which assigned Petitioner to Close

Management I housing, based on Petitioner’s act “which could have resulted in

injury to another.”

      In his petition for writ of habeas corpus filed in the Eighth Judicial Circuit,

Petitioner essentially argued that he could not be assigned to Close Management I

housing, citing Johnson v. State, 858 So. 2d 1071 (Fla. 3d DCA 2003), which held

that spitting in a law enforcement officer’s face was not a forcible felony involving



                                          5
violence as defined under the Prison Releasee Reoffender Act. Petitioner never

denied the underlying act of spitting in the victim’s face. Petitioner cited

authorities from the United States Supreme Court and this court, asserting that

because he had a liberty interest in remaining in the general prison population, due

process required the circuit court to overturn the Department’s administrative

action assigning him to Close Management I housing by issuing a writ of habeas

corpus, ordering that Petitioner be “released” back into the general population of

the prison.

      The circuit court denied relief without requiring a responsive pleading from

the Department, stating in its order:

               . . . Petitioner has failed to demonstrate that he is entitled to due
      process protection in regard to the Department’s decision to place him
      . . . in [Close Management]. Nothing in the record demonstrates that
      Petitioner has a protected liberty interest in remaining free from a
      [Close Management] custody classification. [The Department’s]
      decision to place Petitioner in a particular confinement classification
      is a discretionary one that is necessary to maintain the order of the
      institution and the safety of the inmates and staff. The conditions of
      confinement in [Close Management] fall within the expected
      parameters of Petitioner’s court-imposed prison sentence, and do not
      impose an “atypical or significant hardship” on Petitioner “in relation
      to the ordinary incidents of prison life.” See Sandin v. Conner, 515
      U.S. 472, 483-86 (1995).

             Moreover, [Close Management] supervision is not the same as
      disciplinary confinement and is not imposed as a penalty for a
      disciplinary infraction. Close management is a tool utilized by
      corrections personnel to maintain security and order in the institution
      and to facilitate effective management of the institution. See F.A.C.
      33-601.800(3)(a). Petitioner has failed to demonstrate that [the


                                            6
      Department] abused its discretion in finding that his current [Close
      Management] classification status appropriately addressed potential
      security concerns stemming from his behavior.

             This Court finds that Petitioner has failed to assert a prima facie
      case for a writ of habeas corpus.

To challenge the circuit court’s ruling, Petitioner sought a writ of certiorari in this

court. Pursuant to this court’s order, the clerk of the circuit court was directed to

transmit the record of the proceedings, and because the order below denied a

petition for writ of habeas corpus, we directed that “petitioner is entitled to

preparation of the record on appeal without charge.” This court further ordered the

Secretary of the Department to show cause why the petition for writ of certiorari

should not be granted.

      This court subsequently ordered this case to be heard en banc regarding

“whether the court should recede from decisions holding that an inmate seeking

release from close management into the general prison population is entitled to

proceed through a petition for writ of habeas corpus. See, e.g. Kendrick v. McNeil,

6 So. 3d 657 (Fla. 1st DCA 2009).” Counsel was appointed by the court to

represent Petitioner..1 This court struck all previous pleadings filed by the parties




1
  Michael Ufferman, appointed by this court, was assisted in the research provided
in his brief by Lance Stephens, a second-year law student at The Florida State
University College of Law. This court acknowledges the excellent representation
provided by Mr. Ufferman on behalf of the Petitioner.

                                          7
to allow Petitioner and the Department to address the question presented on

en banc review.

                                      Analysis

1. Close Management Classification and Procedures

      Close Management is a prison classification that confines a state prisoner

“apart from the general population, for reasons of security or the order and

effective management of the institution, where the inmate, through his or her

behavior, has demonstrated an inability to live in the general population without

abusing the rights and privileges of others.”          Fla. Admin. Code. R. 33-

601.800(1)(d). The most restrictive level of Close Management is CM I, which

places an inmate in single-cell housing; the least restrictive level is CM III.

Varying restrictions of an inmate’s privileges and custodial status apply in the

classification.

      When assigned to Close Management housing, the inmate is visited

regularly by Department staff, and irregularly by other staff, to ensure the inmate’s

safety and health.    Fla. Admin. Code. R. 33-601.800(15).         Daily visits are

conducted by medical personnel, the institution’s housing supervisor, and the

officer supervising the correctional staff; weekly visits are conducted by the

warden and assistant wardens, the security chief, and a classification officer. A

Chaplain also visits weekly, and can visit more often if requested and if the



                                         8
Chaplain’s schedule permits.

      Close Management inmates may possess certain personal items, including

hygiene items, electronic devices for listening to music, religious literature,

personal property that does not pose security risks, writing paper, stamps,

envelopes, and security pens to facilitate correspondence. Close Management

inmates may conduct their legal affairs, have access to approved reading material

and borrow library books, subscribe to magazines and newspapers, and use in-cell

education and wellness opportunities. If the Close Management inmate does not

violate a significant institutional rule, they may conduct bank transactions and

order from the canteen. Fla. Admin. Code. R. 33-601.800(10)(g).

      Close Management inmates may have visitors by appointment. In addition,

they are allotted six hours of outdoor exercise each week. Inmates assigned to

CM II and CM III may obtain work assignments.         Fla. Admin. Code. R. 33-

601.800(10)(m) & (13). To provide incentive for improved behavior, privileges

may increase as the inmate progresses to more lenient Close Management status.

Fla. Admin. Code. R. 33-601.800(11).

      The Department’s decision to assign an inmate to Close Management is

administrative, involving multiple internal decisions by the Department, with each

requiring oversight.   First, a member of the institution’s Classification Team

recommends such placement.       Fla. Admin. Code R. 33-601.800(3)(c).        The



                                        9
Classification Team then reviews this recommendation and conducts a mental

health assessment before making a recommendation to the State Classification

Officer at the Department’s central office in Tallahassee. Fla. Admin. Code R. 33-

601.800(3)(g).    The State Classification Officer reviews inmate classification

decisions, and may modify or reject the Classification Team’s recommendation.

Fla. Admin. Code. R. 33-601.800(1)(q). Even if the State’s Classification Officer

approves the Close Management assignment, the Department’s internal review

continues.

      During the first 60 days of Close Management, the inmate’s placement is

reviewed weekly by a member of the institution’s Classification Team; following

that, review is monthly.    Fla. Admin. Code. R. 33-601.800(16)(a).      After six

months, the inmate’s Classification Officer interviews and assesses the inmate, the

previous placement decision, and whether a change in status is advisable. Fla.

Admin. Code. R. 33-601.800(16)(c). In addition, the State’s Classification Officer

interviews the inmate no less often than every six months to determine whether the

status remains appropriate or must be modified, including whether the inmate

should be reassigned to the general population.        Fla. Admin. Code R. 33-

601.800(16)(e).

2. Judicial Review of Close Management Inmate Assignments

      Petitioner asserts that this court should quash the lower court’s order



                                        10
denying the petition for writ of habeas corpus and order that the Department

reassign him to the general prison population. Petitioner argues that this court

should not recede from its decisions allowing prisoners to challenge decisions of

the Department assigning inmates to Close Management through a petition for writ

of habeas corpus.

      As Petitioner asserts in his petition, the ultimate question at issue is whether

“placement in close management represents substantially more ‘atypical and

significant hardships’ in relation to the ordinary incidents of prison life,” thus

entitling an inmate to due process, a violation of which may be asserted by petition

for a writ of habeas corpus. To answer this question, we first consider important

foundational principles regarding challenges to decisions by prison officials to

manage and ensure the safety of prisons.

      First, we recognize that courts must give great deference to prison officials

who must carry out the dangerous task of managing prisons. The United States

Supreme Court has long recognized that

      [r]unning a prison is an inordinately difficult undertaking that
      requires expertise, planning, and the commitment of resources, all of
      which are peculiarly within the province of the legislative and
      executive branches of government. Prison administration is,
      moreover, a task that has been committed to the responsibility of those
      branches, and separation of powers concerns counsel a policy of
      judicial restraint.




                                         11
Turner v. Safley, 482 U.S. 78, 84-85 (1987). Most pertinent to our decision here is

the initial question of whether prisoners in Florida have a protected liberty interest

in remaining in the general population, thus necessitating a determination of

whether a decision removing a prisoner from the general population for

reassignment to Close Management implicates due process requirements. See

Sandin v. Conner, 515 U.S. 472 (1995). If an inmate has no such liberty interest

implicating due process demands, then it is more logical for this court to reevaluate

its prior case law holding that judicial challenges to assignments to Close

Management sound in habeas corpus rather than by writ of mandamus. If a liberty

interest is not at stake, judicial review of the Department’s decision to assign an

inmate to Close Management would be more appropriately considered as an appeal

of an administrative decision, rather than a claim that a person is being illegally

detained, and thus entitled to assert a claim by writ of habeas corpus.

      In Sandin, the United States Supreme Court addressed whether a state

prisoner incarcerated in the Hawaiian Department of Corrections possessed a

liberty interest to remain free from disciplinary confinement and thus possessed a

right to the federal Due Process Clause procedural requirements of Wolff v.

McDonnell, 418 U.S. 539 (1974). Sandin, 515 U.S. at 474. Hawaiian inmate

DeMont Conner was a state prisoner serving a sentence of 30 years to life for

numerous state crimes including murder, kidnapping, burglary, and robbery. Id. at



                                         12
475. While in prison, Conner was charged with misconduct for using abusive

language when prison officials conducted an intrusive search of his person. Id.

During the disciplinary hearing, prison officials refused Conner’s request to call

witnesses, citing their unavailability. Id. Conner was found guilty and assigned to

30 days of “disciplinary segregation.” Id. at 475-76. An official later granted

Conner’s internal appeal and deleted the charge after Conner had served the

confinement period. Based on the prison official’s actions, Conner filed suit under

42 United States Code Annotated section 1983 in the District Court of Hawaii.

The district court granted the State’s motion for summary judgment, but the Ninth

Circuit Court of Appeals reversed. Conner v. Sakai, 15 F.3d 1463 (9th Cir. 1993).

Relying on the United States Supreme Court decision in Hewitt, the Ninth Circuit

held that Conner had a liberty interest in remaining in the general population and

had raised a genuine issue of material fact under Wolff by adequately alleging

Hawaiian prison officials had failed to accord him the opportunity to call

witnesses. Id. at 1466-67.

      In reversing the Ninth Circuit, the United States Supreme Court overruled its

prior precedent in Hewitt and its progeny in which the Court looked to state law or

mandatory administrative regulations to consider whether the State had created a

constitutionally-protected liberty interest, triggering due process requirements.

Instead, the Supreme Court announced that “these [liberty] interests will be



                                        13
generally limited to freedom from restraint which, while not exceeding the

sentence in such an unexpected manner as to give rise to protection by the Due

Process Clause of its own force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin, 515 U.S. at 484 (citations omitted; emphasis added). The Court left open

the possibility that states could create liberty interests which triggered due process

protections, such as in Board of Pardons v. Allen, 482 U.S. 369 (1987), where the

state’s mandatory language regarding parole eligibility established such a liberty

interest, and it recognized that, as in Washington v. Harper, 494 U.S. 210 (1990),

some prison regulations authorized involuntary administration of anti-psychotic

medication, or Vitek v. Jones, 445 U.S. 480 (1980), which authorized involuntary

transfer of a state prisoner to a mental hospital, in which such unusual prison

regulations, by their very nature, invoked due process protections. But the decision

in Sandin clearly announced that any prison regulation which did not impose an

atypical hardship on state prisoners would not implicate due process protections,

and that a state prisoner’s interest in avoiding more adverse prison consequences

was expected to occur following a lawful conviction and sentence, and was not to

be equated with state laws addressing “rights and remedies available to the general

public.” Sandin, 515 U.S. at 481.




                                         14
      The Supreme Court anchored its new approach to state prisoner due process

claims on issues of “real substance” rather than on prison regulations designed to

help guide correctional staff. In its overview of prior precedent, the Court noted

that in Meachum v. Fano, 427 U.S. 215 (1976), it recognized that state prisoners

who were transferred to a more secure prison with “less favorable” conditions did

not implicate substantive due process liberty interest rights: “The Court began [in

Meachum] with the proposition that the Due Process Clause does not protect every

change in the conditions of confinement having a substantial adverse impact on

the prisoner.” Sandin, 515 U.S. at 478 (emphasis added).

      The Sandin Court then turned to Hewitt, noting that even in that decision,

the Court did not find a liberty interest implicated in a state prisoner’s right to

remain in the general population: “[the Hewitt Court] then concluded that the

transfer to less amenable quarters for nonpunitive reasons was ‘ordinarily

contemplated by a prison sentence.’” Sandin, 515 U.S. at 480 (quoting Hewitt,

459 U.S. at 468). But the Sandin Court held that its prior methodology for

determining the existence of a liberty interest used in Hewitt was logically flawed,

as it looked to the prison regulations themselves, rather than whether the prisoner’s

confinement in administrative segregation actually imposed a “‘grievous loss of

liberty’ retained even after sentenced to terms of imprisonment.”         Id. (citing

Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). In other words, unlike Morrissey,



                                         15
which involved the revocation of parole, a real deprivation of actual liberty, the

Sandin Court criticized its earlier precedent in Hewitt, which focused on the nature

of the prison regulation rather than the question of whether there was an actual loss

of liberty.

       Thus, under the logic of Sandin, it is unlikely that Petitioner’s claim that he

was wrongfully assigned to Close Management implicates a substantive due

process liberty interest, primarily because Close Management does not, on its face,

constitute a “grievous loss of liberty,” as a prisoner sentenced to 30 years’

imprisonment has already lost his or her liberty. In addition, as enforced today,

removing a prisoner who has committed a disciplinary infraction from the general

population is not an “atypical and significant hardship” of normal existence in

prison. In fact, such an assignment is not dissimilar to a transfer from a less-secure

to a more-secure institution, where a prisoner must adapt to more burdensome and

strict living conditions. To quote the United States Supreme Court, “Discipline by

prison officials in response to a wide range of misconduct falls within the expected

perimeters of the sentence imposed by a court of law.” Sandin, 515 U.S. at 485.

       As noted, the Supreme Court in Sandin rejected the logic of Hewitt, which

found that state prison regulations, much like those involved here, established a

protected liberty interest.    The Sandin Court unequivocally held that such

regulations are laudatory and cannot be used against the state to require it to meet



                                         16
more stringent procedural requirements before taking punitive action to confine a

disorderly prisoner away from the general population:

      Hewitt has produced at least two undesirable effects. First, it creates
      disincentives for States to codify management procedures in the
      interest of uniform treatment. Prison administrators need be concerned
      with the safety of the staff and inmate population. Ensuring that
      welfare often leads prison administrators to curb the discretion of staff
      on the front line who daily encounter prisoners hostile to the
      authoritarian structure of the prison environment. Such
      guidelines are not set forth solely to benefit the prisoners. They
      also aspire to instruct subordinate employees how to exercise
      discretion vested by the State in the warden, and to confine the
      authority of prison personnel in order to avoid widely different
      treatment of similar incidents. The approach embraced by Hewitt
      discourages this desirable development: States may avoid the creation
      of “liberty” interests by having scarcely any regulations, or by
      conferring standardless discretion on correctional personnel.

      Second, the Hewitt approach has led to the involvement of federal
      courts in the day-to-day management of prisons, often squandering
      judicial resources with little offsetting benefit to anyone.

Sandin, 515 U.S. at 482 (emphasis added). Both of these logical observations

made by the United States Supreme Court in 1995 support our decision today to

recede from prior decisions which allow Close Management decisions to be

challenged by writ of habeas corpus, which encourages excessive state judicial

oversight and interference with prison management, without any real substance at

stake or real benefit conferred on state prisoners while creating a risk of

diminishing state prison security and safety.




                                         17
      In 1987, this court relied on the logic of Hewitt in discussing why a claim

challenging assignment to Close Management would be properly heard in habeas

corpus. In Thompson v. Dugger, 509 So. 2d 391 (Fla. 1st DCA 1987), we stated:

“Although an inmate has no constitutional due process right to notice and a hearing

before his confinement status is changed, such right may be created by state law.”

509 So. 2d 391, 392 (Fla. 1st DCA 1987) (citing Hewitt). This court granted the

writ of habeas corpus and required an evidentiary hearing in the circuit court,

based on the Department’s own internal rules regarding the notice to be provided

to the inmate. Thus, this court held that the Department’s internal rules created a

right to due process before the inmate could be assigned to Close Management.

While its logic was not explicit, this court’s decision in Thompson was, by

necessity, based on the principle that because the State had created a liberty

interest in remaining in the general population, by the Department’s rules, the

inmate was entitled to assert a constitutional claim that was properly heard by writ

of habeas corpus. This purported constitutional claim required an evidentiary

hearing to determine whether the inmate’s rights, created by state law, had been

protected. Of course, if there is no right to remain free from Close Management,

then the underlying premise of Thompson was flawed.

      This court previously followed this same logic in Granger v. Florida State

Prison, 424 So. 2d 937 (Fla. 1st DCA 1983), where we held that a prisoner



                                        18
possessed a liberty interest, created by state law, in remaining in the general

population; thus, the prisoner was entitled to a writ of habeas corpus to challenge

the Department’s alleged failure to follow its internal rules. Interestingly, the

Department argued in Granger, to no avail, that the prisoner did not have a liberty

interest:

       [W]e reject the State’s contention that the denial of Granger’s petition
       should be affirmed on the ground that he has failed to assert a
       sufficient liberty interest. While it is true that due process attaches
       only to those rights created by the State, it cannot be said that the
       State has not created a liberty interest in being free from arbitrary
       transfers from the general prison population to administrative
       segregation. See Parker v. Cook, 642 F.2d 865 (5th Cir. 1981); and
       section 33-3.081, Fla. Admin. Code.

424 So. 2d at 938. But we hold today that the Department’s position was correct.

The Department did not “create” a protected substantive liberty interest under the

federal Due Process Clause, or state constitutional provisions, by simply enacting

rules that guide its decision to confine prisoners in Close Management, based on

misconduct that threatens the safety and security of the prison’s staff, other

inmates, and visitors.

       We now recognize that prisoners do not possess a constitutionally protected

substantive liberty interest in remaining in the general population, either under the

terms of the federal Due Process Clause or in the Close Management regulations

enacted by the Department itself. As the Supreme Court recognized in Sandin, it is

illogical to penalize a state agency, which enacts rules to ensure the uniform


                                         19
application of prison management of inmates, by subjecting the agency to

heightened judicial scrutiny triggered under the Due Process Clause. Rather, the

more logical approach properly defers to the difficult and dangerous challenges

faced by the Executive Branch in managing state prisoners, by providing that

judicial review of challenges to Close Management is conducted not by writ of

habeas corpus – which necessarily implies that a prisoner’s right to immediate

release is at stake and that heightened and less deferential review is required – but

instead to conduct judicial review by the extraordinary writ of mandamus, in the

same manner that challenges to disciplinary reports are filed in the Second Circuit

Court in Leon County. See, e.g., Bush v. State, 945 So. 2d 1207, 1210 (Fla. 2006)

(stating “if the prisoner alleges entitlement to immediate release, a petition for

writ of habeas corpus is the proper remedy; whereas if the prisoner does not allege

entitlement to immediate release, a petition for writ of mandamus is the proper

remedy.”) (footnote omitted; emphasis added); Magwood, 98 So. 3d at 725

(noting that challenge to disciplinary report was properly filed by writ of

mandamus in Second Circuit in Leon County, but claim challenging placement in

Close Management, which was based on same disciplinary report, was filed by

writ of habeas corpus in county in which prisoner was incarcerated). Under our

holding today, all claims in this case would be filed in the circuit court in and for

Leon County, as would be more logical. This type of judicial review of Close



                                         20
Management would be in the nature of an appeal of the Department’s decision, in

which a circuit court may not overturn a Department’s administrative decision of

assignment to Close Management, unless the Department’s decision was clearly

arbitrary. See, e.g., Sheley, 703 So. 2d 1202. As described in Sheley, further

review of the Department’s decision may be pursued by very limited “second-tier”

certiorari in this court. Id. at 1206.

      Habeas corpus is not the correct remedy to provide to a state prisoner who

cannot make a claim for immediate release. Jones v. Sec’y, Dep’t of Corr., 2015

WL 3952690 (N.D. Fla. June 28, 2015) (dismissing habeas corpus petition, in part,

because no constitutional right to due process in disciplinary procedures employed

by Department, and disciplinary confinement for 30 days did not deprive prisoner

of “liberty,” noting, “‘Federal due process does not require that state prison

officials strictly comply with administrative regulations governing disciplinary

hearings in the prison setting’” (quoting Hilderbrandt v. Butts, 550 F. App’x 697,

700 (11th Cir. 2013)), and “‘as various circuit courts [of appeal] have held when

ruling on an inmate’s claim that he was denied use of a prison’s grievance

procedure, an inmate has no constitutionally-protected liberty interest in access to

that procedure.’” (quoting Bingham v. Thomas, 654 F.3d 1171, 1177 (11th Cir.

2011))); State ex. rel. Haley v. Groose, 873 S.W.2d 221 (Mo. 1994) (en banc).

Here, Petitioner is not asserting an entitlement to immediate release from



                                         21
incarceration, but only a release from Close Management. Courts have properly

recognized, however, that such a change in incarceration status is only a change in

the inmate’s classification. Lowery v. Lambdin, 687 So. 2d 55, 57 (Fla. 4th DCA

1997) (noting that claim challenging Close Management classification was “not

truly one for habeas corpus and therefore, [Article I, section 13, Fla. Const.,

providing for no cost to be charged to consider petition for habeas corpus] has no

application. . . . On remand the trial court may consider whether the petition is

properly brought as a habeas corpus.”).

      If it were not for our prior precedent under the liberty interest analysis and

logic of Sandin, Petitioner would not be entitled to claim release by writ of habeas

corpus, but instead would be required to file a petition for a writ of mandamus, as

he can only state a claim in state law, to wit: the Department has somehow failed

to follow its own self-binding procedures. Such a pleading would, by logic, be

filed under mandamus in the Second Circuit Court in Leon County, the county in

which the Department’s headquarters are located. Burgess v. Crosby, 870 So. 2d

217, 219 n.5 (Fla. 1st DCA 2004) (“A petition for writ of habeas corpus . . . is

properly filed in the county in which the inmate is being detained. If an inmate

challenges a gain time issue, but is not claiming the right to immediate release, a

petition for writ of mandamus is filed in the county where the Department of

Corrections is headquartered.” (citations omitted)). In other words, outside of the



                                          22
status of Close Management issues, a prisoner asserting a claim other than

entitlement to immediate release would not normally be permitted to state such a

claim by petition for writ of habeas corpus in the county in which he is

incarcerated, for the simple reason that the very nature of the writ is to “test solely

the legality of the petitioner’s imprisonment[.]” Sneed v. Mayo, 66 So. 2d 865,

869-70 (Fla. 1953) (holding “The great [writ] of habeas corpus is a writ of right

obtainable under our Constitution by all [persons] who claim to be unlawfully

imprisoned against their will. . . . The purpose of the writ being to bring the

petitioner before a court of competent judicial tribunal in order that inquiry may be

made into the legality of his detention . . . .” (citations omitted)); State ex. rel.

Hamilton v. Mayo, 167 So. 34 (Fla. 1936) (holding “the rule being well settled that

where an application for writ of habeas corpus is made to this court and the petition

showing on its face that the alleged detention complained of is in conformity to a

valid conviction and sentence, the writ itself may be denied on the face of the

showing made . . .”). In Sneed, the petitioner asserted that he had not waived his

right to a trial by jury, and the supreme court remanded the claim to the circuit

court for an evidentiary hearing. 66 So. 2d at 874. In Hamilton, the petitioner

claimed he had been convicted in a court which lacked “constitutional existence”;

the supreme court denied the petition on its face. 167 So. at 35.




                                          23
      Thus, historically, a person seeking relief by writ of habeas corpus is – and

by definition must be – asserting that he or she is entitled to immediate liberty and

release from unlawful detention. In Brown v. Wainwright, 498 So. 2d 679, 679

(Fla. 1st DCA 1986), we held where a petition for writ of habeas corpus “fails to

allege that the relief requested would entitle the petitioner to either an immediate

release or a new trial, the writ may not be granted.” (Emphasis added.) This is

the correct rule of law and the traditional and historical basis for judicial relief by

writ of habeas corpus. See also Duncan v. Fla. Parole Comm’n, 939 So. 2d 176,

176 (Fla. 1st DCA 2006) (holding that, although “inartfully pled,” prisoner

challenging revocation by Parole Commission of his prior conditional release

stated claim for relief by writ of habeas corpus requiring circuit court to issue order

to show cause); Black v. State, 490 So. 2d 1287, 1288 (Fla. 1st DCA 1986)

(holding that “initial reason” for denying petition for writ of habeas corpus to

appeal denial of writ of mandamus challenging Presumptive Parole Release Date

“is that it does not allege that the relief requested will entitle the petitioner to

release or a new trial”). But in the area of claims challenging the Department’s

decision to change a prisoner’s status from general population to Close

Management, we have departed from these legal principles, in part based on prior

United States Supreme Court precedent now long rejected by that Court.




                                          24
      When the landmark decision of Gideon v. Wainwright, 372 U.S. 335 (1963),

issued, the Florida Supreme Court devised a procedure to streamline claims

involving alleged violations of the right to counsel under the Sixth Amendment to

the United States Constitution. As noted in Baker v. State, when the Florida

Supreme Court enacted “Rule 1” (the predecessor to rule 3.850, Florida Rules of

Criminal Procedure) to provide an avenue for prisoners to challenge their

convictions under Gideon, the rule provided that where this new rule did not

provide an adequate remedy, a prisoner could seek relief by petition for writ of

habeas corpus “to test the legality of his detention.” 878 So. 2d 1236, 1241 (Fla.

2004) (quoting In re Criminal Procedure, Rule No. 1, 151 So. 2d 634 (Fla. 1963))

(emphasis added). Thus, while under certain limited circumstances a prisoner can

assert a claim for habeas corpus to challenge a restraint on his or her liberty and

proceed outside the normal collateral channel for relief, the rule does not authorize

a challenge to the conditions of detention. See, e.g., State v. Bolyea, 520 So. 2d

562, 563 (Fla. 1988) (holding that postconviction rule is a “procedural vehicle for

the collateral remedy otherwise available by writ of habeas corpus”). Here, for

example, there is no claim that Petitioner is entitled to his “liberty,” but only a

claim that he should be allowed to be incarcerated in the general prison population

rather than Close Management status.




                                         25
      The “Great Writ” of habeas corpus should be primarily reserved for judicial

review of claims of unlawful detention, not claims challenging the type or the

administration of detention, which sound primarily in terms of an administrative

appeal. Sneed, 66 So. 2d at 869 (holding that habeas corpus “may not be used as a

substitute for appeal”). Just as courts have declined to allow the writ to be used as

a substitute for direct appeal in criminal cases, it is not proper, in our view, to

allow the writ to be used as a substitute for an administrative appeal challenging an

agency’s execution of its administrative duties.

      Florida’s organic law mandates that the judiciary accord the most prompt

consideration to a person seeking release by writ of habeas corpus, precisely

because the time-honored and historical basis for the writ is to allow a person

prompt consideration of a claim that they are being held without lawful authority:

“The writ of habeas corpus shall be grantable of right, freely and without cost. It

shall be returnable without delay[.]” Art. I, § 13, Fla. Const. (emphasis added).

District courts have enforced this constitutional mandate unequivocally. Bocharski

v. Circuit Court of Second Judicial Circuit In and For Leon County, 552 So. 2d

946 (Fla. 1st DCA 1989); Bradley v. Sturgis, 541 So. 2d 766 (Fla. 5th DCA 1989).

But where the claim is not based on the assertion that a person is detained without

lawful authority, but solely on the claim that administration of the detention is not

in accord with the agency’s own rules, then other considerations of judicial



                                         26
administration and proper deference to other branches of government under

Article II, section 3 of the Florida Constitution must be given due respect. See

generally Detournay v. City of Coral Gables, 127 So. 3d 869, 873 (Fla. 3d DCA

2013) (describing doctrine of sovereign immunity as founded on principle of

separation of powers, “one of the structural pillars upon which American freedoms

rest: ‘under the constitutional doctrine of separation of powers, the judicial branch

must not interfere with the discretionary functions of the legislative or executive

branches of government absent a violation of constitutional or statutory rights.’ To

hold otherwise . . . ‘would require the judicial branch to second guess the . . .

police power decisions of the other branches of government and would violate

the separation of powers doctrine.’” (citing Trianon Park Condo. Ass’n, Inc. v.

City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985) (emphasis added))). Here, as we

now recognize, there is no federal or state constitutional right of a state prisoner to

remain in the prison’s general population. Therefore, the only question posed by a

challenge to a Department decision assigning a state prisoner to Close

Management is whether the Department acted with “no” evidence to support its

decision or possibly acted in a completely arbitrary fashion, in which case, relief

may be granted by extraordinary writ of mandamus, not by writ of habeas corpus,

as no constitutional right to release or a new trial is at issue.




                                            27
      Close Management prison classifications do not create conditions that are

“atypical” of general population status, to the extent that a liberty interest would be

created under the Due Process Clause. See generally Al-Amin v. Donald, 165

F. App’x 733, 737-38 (11th Cir. 2006) (holding that state prisoner challenging

confinement in administrative segregation for approximately three years did not

establish liberty interest “under the particular facts of this case,” therefore, it is

“unnecessary for us to determine whether . . . procedures for confining Al-Amin to

administrative segregation and for keeping confined there provided Al-Amin

with due process”) (emphasis added).           In Al-Amin, the court noted that

confinement “to administrative segregation, under conditions substantially similar

to those experienced by the general population of the prison, does not implicate

liberty interests,” despite the lengthy time Al-Amin had been so confined. Id. at

738. But the Court cautioned that state officials must periodically review such

status, which by their own rules are required in Florida by the Department. Cf.

Wilkinson v. Austin, 545 U.S. 209, 213 (2005) (holding that transfer to

“supermax” facility in which “almost all human contact” was prohibited and

confinement was indefinite implicated a liberty interest). Significantly, here there

is no Eighth Amendment claim that assignment to Close Management as a matter

of law constitutes cruel and unusual punishment. Osterback v. McDonough, 549

F. Supp. 2d 1337, 1356-63 (M.D. Fla. 2008) (holding no Eighth Amendment



                                          28
violation in Department’s Close Management regulations, stating “Inmates in

[Close Management] have the same cell furnishings as inmates in the general

population . . .    .[and] receive the same clothing and bedding that general

population inmates receive. The barber and grooming services for [such] inmates

and open population inmates are also the same [as are] the same three meals each

day that open population inmates receive. . . . [they] are provided with adequate

opportunities to exercise. . . . [Close Management] inmates have adequate access to

educational opportunities, and have adequate opportunities to make canteen

purchases and engage in visitation.”); Groose, 873 S.W. 2d at 223 (holding that

where claim fails to allege cruel and unusual punishment, “habeas corpus is not

available to attack the conditions of his confinement”). There is simply no credible

argument, based on the regulations establishing Close Management parameters,

that these restrictions on their face are “atypical” of the general population.

      As such, individualized claims that the Department has failed to follow its

own rules in assigning a prisoner to Close Management are not valid assertions of

constitutional claims but, rather, allegations of such state law violations that do not

implicate a constitutionally-protected liberty interest. But if an inmate alleges that

a condition of Close Management is cruel and unusual punishment, thus violating

the Eighth Amendment, such a claim could be cognizable by petition for writ of

habeas corpus. Absent such an allegation, however, we hold that an inmate’s



                                          29
challenge to assignment to Close Management may only be asserted by filing a

petition for writ of mandamus in Leon County, the Department’s headquarters. As

we wrote in Plymel, the prisoner’s burden of persuasion in seeking mandamus

relief to challenge an assignment to Close Management will be to show that “he

has a clear legal right to the performance of a clear legal duty by a public officer,

and that he has no other available legal remedies.” 770 So. 2d at 246. Further, the

inmate must show that he has exhausted all available administrative remedies. Id.

Once the petition for writ of mandamus establishes a prima facie entitlement to

relief, the circuit court should issue an order to show cause why such relief should

not be granted. Holcomb, 609 So. 2d at 751. As noted above, review in this court

of a circuit court’s decision will be by “second-tier” certiorari. Plymel, 770 So. 2d

at 246 (noting that “a circuit court order ruling on an administrative action is

reviewable in the district court by certiorari”). As we held in Plymel, the standard

of review of a circuit court order is “limited to whether the circuit court afforded

procedural due process and whether the circuit court applied the correct law.” 770

So. 2d at 246. See also Woullard v. Bishop, 734 So. 2d 1151 (Fla. 1st DCA 1999).

Thus, for example, if a prisoner alleges he has been deprived of the periodic review

required by the rules described above, he may be entitled to mandamus relief;

merely disagreeing with the Department’s discretionary decisions cannot show

entitlement to relief, as there would be no showing of a “clear legal right.”



                                         30
      We respectfully disagree with the concern expressed in Judge Wolf’s

concurring and dissenting opinion that our opinion today must always lead an

inmate to a “dead end” where no relief can be granted. As noted above, should the

inmate state a prima facie case that the Department failed to comply with its own

rules – for example, by refusing to ensure the inmate’s status continues to meet the

Department’s criteria under its own rules – a circuit court could be required to

issue a show cause order to the Department, necessitating further evaluation in that

court. See, e.g, Moore v. Fla. Parole & Prob. Comm’n, 289 So. 2d 719, 720 (Fla.

1974) (holding mandamus will not lie to compel grant of parole, which is solely

within the discretion of the Parole and Probation Commission, but “[t]he Parole

Commission is required, as any other body, to comply with constitutional

requirements; it cannot deny parole upon illegal grounds or upon improper

considerations. It is answerable in mandamus if it does.”) (emphasis added)),

cert. den., 417 U.S. 935 (1974). Relevant here, in Moore, the Florida Supreme

Court held that habeas corpus was not available to an inmate to challenge a

Presumptive Parole Release Date, which does not entitle an inmate to a reasonable

expectation of imminent release from prison. In contrast, an inmate’s claim that an

Effective Parole Release Date has been improperly set, which can more likely

affect an inmate’s opportunity for release from prison, can be asserted by petition

for writ of habeas corpus. See Fla. Parole & Prob. Comm’n v. Dornau, 534 So. 2d



                                        31
789, 792 (Fla. 1st DCA 1988) (citing Griffith v. Fla. Parole & Prob. Comm’n, 485

So. 2d 818 (Fla. 1986), and noting that “judicial review is available only through

the common law writs of mandamus, for review of [Presumptive Parole Release

Dates], and habeas corpus, for review of [Effective Parole Release Dates].”); see

generally Sheley v. Fla. Parole Comm’n, 703 So. 2d 1202, 1205 (Fla. 1st DCA

1997) (citing Griffith and recognizing that the Florida Supreme Court established

that “review of Parole Commission orders was . . . available by mandamus or

habeas corpus,” and establishing second-tier certiorari review of denial of

mandamus relief against Parole Commission); see also Richardson v. Fla. Parole

Comm’n, 924 So. 2d 908 (Fla. 1st DCA 2006) (holding that inmate stated claim in

habeas corpus challenging Florida Parole Commission’s order revoking

conditional release supervision and remanding him to state prison). Thus, similar

to the parole (and conditional release) context, here, where the Department assigns

an inmate to Close Management, should the inmate challenge this decision by

petition for writ of mandamus, the circuit court will determine whether a prima

facie case has been established that the Department relied on improper

considerations or failed to follow its own rules.        Such a proceeding lies

appropriately in mandamus, filed and considered in the Second Circuit Court in

Leon County, where the Department’s headquarters are located, not by petition for

writ of habeas corpus.



                                        32
3. Stare Decisis

      By our decision today, we recede from prior case law that improperly

subjected prison management decisions to extraordinary judicial review by habeas

corpus based on flawed analyses long rejected by the United States Supreme Court,

as thoroughly discussed above.        As the United States Supreme Court has

recognized, although stare decisis is the “preferred course” in the judicial process,

“when governing decisions are unworkable or are badly reasoned, ‘this Court has

never felt constrained to follow precedent.’” Payne v. Tennessee, 501 U.S. 808,

827 (1991) (overruling prior decisions prohibiting admission of victim impact

statements in capital murder prosecutions where the death penalty may be

imposed) (quoting Smith v. Allwright, 321 U.S. 649, 655 (1944)). As the Court

also recognized in Payne, considerations of stare decisis are particularly weak in

cases in which legislative correction is either impossible or difficult to achieve. Id.

Rather, deference to stare decisis is most important in cases “involving property

and contract rights, where reliance interests are involved.” Id. at 828. Here, all

these considerations support our decision to recede from contrary prior case law.

The prior decisions were based on flawed logic, the decisions cannot be easily

abrogated by the legislature, as they implicated constitutional interests, and the

prior decisions do not affect property or contract rights. By contrast, the prior

decisions erroneously thrust this court into improper judicial second-guessing of



                                          33
the Executive Branch’s daunting and dangerous duty to manage state prisons and

strive to protect staff and inmates, as well as public visitors. By providing that

Close Management prison classifications are reviewable only by writ of mandamus

filed in the Second Circuit Court in Leon County, we will enhance stability and

uniformity in circuit court review and better accord due deference to the Executive

Branch.

4. Petitioner’s Claim

      Here, Petitioner did not assert that Department officials failed to adhere to

periodic review or any other minimum procedures established by their own rules.

Thus, whether the Department correctly determined that Petitioner’s act of spitting

in the face of an examining psychiatrist was an act “likely to cause injury” is a

discretionary decision, and may not be the basis for mandamus relief. Smith v.

State, 696 So. 2d 814, 815 (Fla. 2d DCA 1997) (recognizing that mandamus “is a

common law remedy to be used to enforce an ‘established legal right by

compelling a person in an official capacity to perform an indisputable ministerial

duty required by law.’” (citation omitted)). In Cason v. McDonough, 943 So. 2d

861, 862-63 (Fla. 1st DCA 2006), this court noted that the Florida Supreme Court

in Dugger v. Grant, 610 So. 2d 428, 432 (Fla. 1992), stated that a “modicum” of

evidence is sufficient to satisfy the “some evidence” standard required to sustain a

prison disciplinary report under Superintendent, Massachusetts Correctional



                                        34
Institution v. Hill, 472 U.S. 445, 455-56 (1985). In other words, as long as there is

“some evidence” that Petitioner committed the act alleged, which he did not deny

below, then mandamus relief must be denied.

      Here, Petitioner failed to deny that he spat in the staff psychologist’s face

but, rather, made only conclusory allegations that such an act could not “injure”

another.   As this is not a criminal proceeding, it was not necessary for the

Department to find Petitioner guilty beyond a reasonable doubt, so cases

discussing the State’s burden of persuasion in criminal prosecutions are inapposite.

Smiley v. State, 948 So. 2d 964, 964 (Fla. 5th DCA 2007) (holding that

“‘[r]evocation of good time credits [in prison disciplinary context] is not

comparable to a criminal conviction, and neither the amount of evidence necessary

to support such conviction, nor any other standard greater than some evidence

applies in this context.’” (quoting Dugger v. Grant, 610 So. 2d 428, 432 n.3 (Fla.

1993) (emphasis in original))). Cf. Bujno v. Dep’t of Corr., 1 So. 3d 1138 (Fla. 1st

DCA 2009) (holding that because circuit court did not require Department to

directly respond to merits of prisoner’s defense, evidence was insufficient to affirm

circuit court’s ruling of guilty of possession of contraband by constructive

possession). Here, Petitioner failed to show a prima facie entitlement to

extraordinary relief, because he failed to deny that he did not spit in the

psychologist’s face. See Holcomb, 609 So. 2d at 751. Here, the petition itself



                                         35
failed to sufficiently allege that the Department unlawfully classified Petitioner to

Close Management status, by neither denying that he committed the acts involved

or asserting a credible argument that such acts were not an adequate basis for the

reclassification.

      Therefore, we can affirm the denial of relief here, even though the circuit

court did not, and could not, consider the claim in mandamus. See John v. Crews,

149 So. 3d 149 (Fla. 1st DCA 2014) (holding that although circuit court applied

incorrect law regarding prisoner’s cause of action and entitlement to avoid filing

fee, decision would be affirmed, as prisoner serving life sentence had no

entitlement to gaintime award, and no liberty interest was implicated). Therefore,

we affirm the circuit court’s denial of relief without further proceedings.

                        Conclusion and Conflict Certified

      We acknowledge that in Holland, the Fifth District affirmed a circuit court

order denying the writ of habeas corpus without discussing whether that was the

proper remedy after the United States Supreme Court decided Sandin, but which

cited our decisions in Taylor v. Perrin, 654 So. 2d 1019 (Fla. 1st DCA 1995), and

Granger.    Holland, 791 So. 2d at 1257.       Because we recede from our prior

decisions in this court allowing such claims to be considered in habeas corpus, we

certify conflict with Holland. We also acknowledge that in Harvard v. Singletary,

733 So. 2d 1020, 1024 (Fla. 1999), the Florida Supreme Court transferred a



                                         36
petition challenging a Close Management assignment to the county in which the

prisoner was incarcerated.    But that decision discussed the supreme court’s

rationale for transferring petitions for extraordinary relief requiring factual

findings, and the court specifically stated that it was not making a decision “that

the petition has been properly titled a petition for writ of habeas corpus.” In

addition, the supreme court acknowledged that a filing fee could be required.

Thus, we do not read Harvard as a decision on the merits determining that claims

challenging assignments to Close Management must be considered by petition for

writ of habeas corpus.

      We also acknowledge that, by our decision today, prisoners challenging such

decisions by petition for writ of mandamus will be required to pay a filing fee

pursuant to sections 57.081 and 57.082, Florida Statutes, absent a decision that

they are indigent. See John v. Crews, 149 So. 3d 149 (Fla. 1st DCA 2014)

(discussing appropriate statute applicable to claims challenging disciplinary

confinement, but affirming dismissal for failure to qualify for fee exemption on

other grounds).   In some cases, this may impose a hardship on non-indigent

prisoners attempting to challenge assignment to Close Management, but that

implication is a policy matter addressed to the legislative branch, as our decision

that such claims do not lie in habeas corpus precludes this court from engaging in

that determination.



                                        37
      The amended petition for writ of certiorari is DENIED on the merits, for

reasons stated above, and conflict to Holland v. State, 791 So. 2d 1256 (Fla. 5th

DCA 2001), is certified.

      DENIED ON THE MERITS; CONFLICT CERTIFIED.

ROBERTS, C.J., and LEWIS, WETHERELL, ROWE, RAY, OSTERHAUS,
KELSEY, and WINOKUR, JJ., concur.

WOLF, J., concurs in part and dissents in part in an opinion in which MAKAR,
BILBREY, JAY, and M.K. THOMAS, JJ., join.

MAKAR, J., dissents in an opinion in which BILBREY, J., joins.

WINSOR, J., recused.




                                       38
WOLF, J., concurring and dissenting with opinion.

      I concur in that portion of the majority opinion that determines that this

particular inmate is not entitled to relief. I also concur in the decision to declare

conflict with the Fifth District Court of Appeal’s decision in Holland v. State, 791

So. 2d 1256 (Fla. 5th DCA 2001). I would additionally certify a question of great

public importance concerning the appropriate method and scope of judicial review

of decisions to segregate prisoners from the general population. I respectfully

dissent from the decision to overturn almost 35 years of precedent which allowed

inmates to file habeas corpus proceedings in the state circuit courts to challenge

their assignments to close management.

      The majority opinion states that we should adopt the reasoning of Sandin v.

Conner, 515 U.S. 472 (1995), and holds that an inmate has no liberty interest

concerning the Florida Department of Corrections’ (Department) decision to place

him or her in close management. The majority therefore determines that habeas

corpus review is no longer available.

      Under our existing precedent, this holding denies the prisoner any

meaningful judicial review of the decision to be placed in close management, no

matter the duration. As explained later in this opinion, the decision by federal

courts and the federal government, which have no custodial responsibility for these

inmates, to limit their oversight of prison management should not affect the review



                                         39
process at the state level. If anything, the limited oversight adopted by the federal

courts makes it more essential to maintain reasonable review of decisions made by

the party having primary custodial responsibility of our prisoners, the Department.

Inmates segregated from the general prison population for a potentially significant

period of time should continue to have the same reasonable court oversight

concerning their segregation from the general prison population that they have had

since 1982. Insignificant justification has been provided to overturn our precedent

and to effectively extinguish this important safeguard.

                                        Facts

      The majority has accurately described the procedural posture and underlying

facts in support of petitioner’s placement in close management status. Thus, there

is no need to repeat the work of the majority.

      For purposes of this opinion, however, it is necessary to clarify petitioner’s

status and the implications concerning his placement.

      Close management is “confinement of an inmate apart from the general

population.” Fla. Admin. Code R. 33-601.800(1)(d). The Department placed

petitioner in the Close Management I (CMI) category, the most restrictive single-

cell housing level of the close management classifications. Fla. Admin. Code R.

33-601-800(1)(e). The record does not show how long petitioner will be held in

close management, presumably until the Department feels such segregation from



                                         40
the general population is no longer necessary. See Fla. Admin. Code R. 33-

601.800(16)(a). While risk assessments are done periodically, formal review only

takes place after 180 days (six months) of placement in close management and

every 180 days thereafter. Fla. Admin. Code R. 33-6601.800(16)(e). There is no

guarantee that an inmate will be released at the time of any formal review;

therefore, the duration of the segregation is indefinite and may be for extended

periods of time.

      While a review of Florida Administrative Code Rule 33-601.800

demonstrates that close management is not the solitary confinement as depicted in

movies like “Murder in the First” (Warner Bros. 1995) or “The Shawshank

Redemption” (Castle Rock Entertainment 1994), it still involves segregation from

the general population and significant restrictions on items associated with human

dignity which may have serious implications regarding a prisoner’s wellbeing.2


      2
        1). Close management status affects an inmate’s ability to work,
      which affects an inmate’s ability to earn gain time.            Close
      management inmates do not get credit or gain time for participating in
      the GED/education class because their work is all in-cell, which
      means their participation time is not counted. For inmates in the
      general population, gain time for education/vocation is based upon an
      inmate’s presence in the classroom and his or her participation.
      Inmates in the general population are automatically assigned to a job
      or program.

      2). Close management inmates are only guaranteed a shower three
      times per week (see Fla. Admin. Code R. 33-601.800(10)(e)), whereas
      inmates in the general population can shower seven days per week.

                                       41
See Grant Henderson, Disciplinary Segregation; How the Punitive Solitary

Confinement Policy in Federal Prisons Violates the Due Process Clause of the

Fifth Amendment in Spite of Sandin v. Conner, 99 Marq. L. Rev. 477 (Winter

2015). It is particularly significant that inmates who are placed in close

management are subject to having any of their privileges suspended or revoked

with very limited review. See Fla. Admin. Code R. 33-601.800(12).



      3). Close management inmates’ visits are restricted as follows: CMI –
      one non-contact visit for two hours, once a month; CMII – one non-
      contact visit for two hours every two weeks; and CMIII – one contact
      visit every two weeks. All visits must be scheduled by appointment.
      See Fla. Admin. Code R. 33-601.800(11)(b)6, (11)(c)1, & (11)(d)1.
      By comparison, inmates in the general population are allowed weekly
      contact visits (Saturday/Sunday) for six hours (plus the holidays).

      4). CMI inmates are only allowed to make one fifteen-minute call per
      month; CMII inmates are only allowed to make one fifteen-minute
      call every two weeks; and CMIII inmates are only allowed to make
      one fifteen-minute call every week. See Fla. Admin. Code R. 33-
      601.800(11)(b)5, (11)(c)2, and (11)(d)3. In the general population,
      during weekdays phones are turned on at 12:00 p.m. and remain on
      until 11:00 p.m., and on weekends and holidays, phones are turned on
      at 8:00 a.m. and remain on until 11:00 p.m., and inmates may make as
      many calls as they like.

      5). CMI inmates are handcuffed and shackled upon exiting their cells
      at all times, whether it is for group activities, medical or dental
      appointments or counseling. See Fla. Admin. Code R. 33-
      601.800(14)(a).

      6). Inmates who are placed in close management are also subject to
      having any of these privileges suspended or revoked with very limited
      review. Fla. Admin. Code R. 33-601.800(12).


                                       42
       Indeed, the courts of this state have consistently held that these substantial

and significant deprivations for potentially lengthy periods of time are subject to

habeas corpus review.

                             Current Status of the Law

       For almost 35 years, this court has held that an inmate is entitled to

challenge the assignment to close management status by filing a petition for writ of

habeas corpus in circuit court. Costello v. Strickland, 418 So. 2d 443 (Fla. 1st

DCA 1982).

       In Kendrick v. McNeil, 6 So. 3d 657 (Fla. 1st DCA 2009), we recognized

the consistent availability of this remedy. The Kendrick opinion noted:

       This Court has consistently held that an inmate who seeks release
       from close management back into the general prison population is
       entitled to proceed through a petition for writ of habeas corpus. See
       Ashley v. Moore, 732 So. 2d 498 (Fla. 1st DCA 1999); Norris v. Dep’t
       of Corrections, 721 So. 2d 1235 (Fla. 1st DCA 1998); Taylor v.
       Perrin, 654 So. 2d 1019 (Fla. 1st DCA 1995); Guess v. Barton, 599
       So. 2d 770 (Fla. 1st DCA 1992); Roy v. Dugger, 592 So. 2d 1235 (Fla.
       1st DCA 1992); Thompson v. Dugger, 509 So. 2d 391 (Fla. 1st DCA
       1987); see also Holland v. State, 791 So. 2d 1256 (Fla. 5th DCA
       2001).

Id. at 658. 3

       Since Kendrick, we have continued to recognize our consistent holding that

an inmate challenging close management status may do so through habeas corpus.


3
 See also Magwood v. Tucker, 98 So. 3d 725 (Fla. 1st DCA 2012); Granger v. Fla.
State Prison, 424 So. 2d 937 (Fla. 1st DCA 1983).

                                         43
Magwood v. Tucker, 98 So. 3d 725 (Fla. 1st DCA 2012). The right to challenge

“arbitrary transfers” from the general prison population to administrative

segregation is based not only on federal due process concerns, but also rights

recognized by the State of Florida. Granger v. Fla. State Prison, 424 So. 2d 937

(Fla. 1st DCA 1983). The majority and the Department urge this court to recede

from our precedent because of the holding in Sandin v. Conner, 515 U.S. 472

(1995).

                      Sandin v. Conner, 515 U.S. 472 (1995)

      We should not recede from our well-reasoned precedent in light of Sandin

because: 1) the holding in Sandin merely limits the right of federal courts to

interfere with supervisory decisions made by state prison officials; 2) the holding

in Sandin does not mandate that states no longer recognize a limited liberty interest

in remaining in the general prison population; 3) this court has recognized a state

liberty interest in remaining in the general prison population a number of times

since Sandin was decided 21 years ago; 4) the State has not presented sufficient

justification to depart from almost 35 years of precedent; 5) Sandin addressed

segregation from the general prison population for a limited period of time – here

we have confinement for an unlimited duration; 6) if both federal and state

oversight are extinguished, a prisoner faced with arbitrary confinement will be left




                                         44
with no adequate remedy; and 7) the obligation of the State to treat prisoners held

in its custody fairly and humanely implores us not to do so.

      Sandin involved review of a federal lawsuit filed by a Hawaiian prisoner

pursuant to 42 U.S.C. § 1983 to challenge his assignment to close management for

30 days. Id. at 476. He asserted that the State of Hawaii had denied him due

process guaranteed by Wolff v. McDonnell, 418 U.S. 539 (1974). Id. He sought

injunctive relief, declaratory relief and damages among other items. 4 Id.       The

holding in Sandin was that 30 days of administrative segregation did not involve

such an atypical and significant deprivation to create a federal liberty interest to

justify federal intervention into the oversight of inmates by the state. It further

stated that state rules providing inmates protection from abuses would not create

such a right. Id. at 487.

      Sandin did not mandate that the state limit its own oversight of officials that

place prisoners in administrative segregation, nor did it mandate that the state, the

entity responsible for the health, safety, and humane treatment of human beings

held in its custody, no longer provide meaningful judicial review. Sandin did not

hold that the state may not recognize a limited liberty interest in close management

decisions. Indeed, both the Florida Supreme Court and the United States Supreme


4
  The issue before us, unlike Sandin v. Conner, 515 U.S. 472 (1995), simply
involves court oversight of the decision to segregate a prisoner, not a prisoner’s
right to seek damages.

                                         45
Court have recognized that “‘state courts are absolutely free to interpret state

constitutional provisions to accord greater protection to individual rights than do

similar provisions of the United States Constitution.’” Rigterink v. State, 66 So. 3d

866, 888 (Fla. 2011) (quoting Arizona v. Evans, 514 U.S. 1, 8 (1995)). See also

State v. Horwitz, 41 Fla. L. Weekly S211, S215 (Fla. May 6, 2016) (“[T]he United

States Constitution generally sets the ‘floor’ – not the ‘ceiling’ – of personal rights

and freedoms that must be afforded to a defendant by Florida law.”).         Once the

federal system effectively withdrew from any oversight of prison officials

responsible for the classification and living conditions of inmates, it became even

more essential for the state court system to maintain meaningful review.

       Indeed, even the federal courts might not refrain from oversight of

potentially indefinite durations of administrative segregation. See Wilkinson v.

Austin, 545 U.S. 209 (2005). In Wilkinson, the United States Supreme Court held

that there were limited federal due process rights for inmates placed in “supermax”

facilities where placement was for an indefinite period. While the conditions faced

by the prisoners in Wilkinson were far more onerous than the ones outlined in our

rules regarding close management, the court was also concerned with the indefinite

period of segregation that was limited only by the length of an inmate’s sentence.5

Ohio, like Florida, had limited formal review of the duration of the segregation.


5
    This case does not involve an assignment to the maximum management

                                          46
      The federal courts, which do not have primary responsibility for an inmate’s

safety and wellbeing, have stated that they will not get involved unless an inmate’s

deprivation is atypical and substantial. See Sandin, 515 U.S. 472. State courts with

primary oversight responsibilities should not draw the same line. 6 As noted by the

majority, the Eleventh Circuit has held that 3 years in close management was not

an atypical and significant hardship. See Al-Amin v. Donald, 165 F. App’x 733,

734 (11th Cir. 2006). A standard that does not provide meaningful review for this

length of segregation is unworkable at the state level.

      In fact, to this point, we have chosen not to draw the same line. In at least

four cases since Sandin, this court has stated that a petition for writ of habeas

corpus is still the appropriate method for challenging close management

classification. See Magwood, 98 So. 3d 725; Kendrick, 6 So. 3d 657; Ashley, 732

So. 2d 498; Norris, 721 So. 2d 1235.7



classification pursuant to Florida Administrative Code Rule 33-601.820. Maximum
management may be more like the conditions outlined in Wilkinson v. Austin, 545
U.S. 209 (2005).
6
  In Toward a Standard of Meaningful Review: Examining The Actual Protections
Afforded To Prisoners In Long Term Solitary Confinement, 163 U. Pa. Law Rev.
1159 (Mar. 2015), the author Elli Marcus does a good job demonstrating how the
Sandin standard is totally inadequate in affording reasonable protections for
inmates facing administrative segregation of indefinite duration.
7
  The Fifth District held that a petition for writ of habeas corpus was properly
denied where a prisoner sought release from close management. Holland v. State,
791 So. 2d 1256 (Fla. 5th DCA 2001). The Fourth District sent a case back to trial
court to determine whether habeas or mandamus was available to challenge close
management. Lowery v. Lambdin, 687 So. 2d 55 (Fla. 4th DCA 1997).

                                         47
                           Effect of Majority’s Holding

      The majority holds that the decisions regarding a prisoner’s placement in

close management and segregation from the general prison population do not

implicate a constitutionally-protected liberty interest.   Therefore, the majority

holds that habeas corpus review is no longer available and that any request for

relief must be by petition for writ of mandamus filed in the Second Circuit for

Leon County.

      The effect of the majority’s holding is to deny any review of any assignment

to close management for any duration because this court has long held that a

prisoner must have a liberty interest in order to bring a petition for writ of

mandamus challenging the Department’s actions.

      In Plymel v. Moore, 770 So. 2d 242, 249 (Fla. 1st DCA 2000), this court

held that a prisoner was entitled to mandamus relief to require the Department to

follow its own rules and provide limited due process predicated on the substantive

liberty interest implicated by the prisoner’s loss of gain time. In a number of

recent cases, we have held that absent a showing of such a liberty interest, a

prisoner lacks even minimal due process rights, and thus is not entitled to

mandamus relief. See Williams v. Tucker, 87 So. 3d 1270, 1271 (Fla. 1st DCA

2012) (affirming the denial of a petition for writ of mandamus because the

prisoner, who was subjected to 60 days’ disciplinary confinement, “failed to



                                        48
demonstrate any liberty interest implicating the protections of the Due Process

Clause”); see also Gardener v. Fla. Dep’t of Corr., 178 So. 3d 92, 94 (Fla. 1st DCA

2015) (finding the circuit court applied the correct law in denying a prisoner’s

petition for writ of mandamus in reliance on Sandin, concluding “no liberty interest

was involved” in prison disciplinary action that resulted in disciplinary

confinement); Castillo v. State, Dep’t of Corr., 174 So. 3d 452, 453 (Fla. 1st DCA

2015) (finding a circuit court did not depart from the essential requirements of the

law in denying as “frivolous” a mandamus petition challenging a prison

disciplinary proceeding that resulted in 30-days’ disciplinary confinement because

the prisoner “failed to demonstrate any liberty interest implicating the protections

of the Due Process Clause”); John v. Crews, 149 So. 3d 149, 151 (Fla. 1st DCA

2014) (affirming the dismissal of a petition for writ of mandamus because “the

revocation of gain-time does not implicate appellant's liberty interests in this case

because appellant is serving a life sentence” and thus is “ineligible for gain-time”);

Wright v. McDonough, 958 So. 2d 1132, 1133 (Fla. 1st DCA 2007) (finding the

circuit court properly denied a petition for writ of mandamus challenging a

disciplinary proceeding which “adversely affected Petitioner’s ability to earn gain-

time,” citing Wolff and Sandin).

      Thus, the type of review available under existing law would cease to exist.

Issues such as arbitrariness (which this court said was reviewable in Granger, 424



                                         49
So. 2d 937), lack of proper notice (which this court found to be reviewable in

Thompson, 509 So. 2d 391), and even failures of the Department to follow its own

rules (see Plymel, 770 So. 2d 242) would not be reviewable by the court without

demonstrating a liberty interest, which the majority finds is not implicated by close

management. The majority’s suggestion that review is available by mandamus is

merely a dead end due to the majority’s holding that there is no liberty interest.

The majority’s suggestion that it is not creating a dead end is simply not supported

by our recent case law that requires a liberty interest in order for a prisoner to

obtain mandamus relief.        It also creates confusion regarding the scope of

mandamus review.

                Insufficient Justification for Overturning Precedent

      Absent a significant change in circumstances or a substantial policy reason,

a court should adhere to its precedent pursuant to the doctrine of stare decisis.

Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015).

      Overruling precedent is never a small matter. Stare decisis – in
      English, the idea that today’s Court should stand by yesterday’s
      decisions – is “a foundation stone of the rule of law.” Application of
      that doctrine, although “not an inexorable command,” is the
      “preferred course because it promotes the evenhanded, predictable,
      and consistent development of legal principles, fosters reliance on
      judicial decisions, and contributes to the actual and perceived integrity
      of the judicial process.”

Id. at 2409 (citations omitted).




                                         50
      In refusing to overturn precedent, the United States Supreme Court went on

to say that adhering to stare decisis means an allegation by itself that prior

decisions are wrong provides an insufficient reason to overturn precedent.

      Accordingly, an argument that we got something wrong – even a good
      argument to that effect – cannot by itself justify scrapping settled
      precedent. Or otherwise said, it is not alone sufficient that we would
      decide a case differently now than we did then. To reverse course, we
      require as well what we have termed a “special justification” – over
      and above the belief “that the precedent was wrongly decided.”

Id. (emphasis added; citations omitted).

      This court acknowledged the vital importance of precedent and stare decisis

in Westphal v. City of St. Petersburg, 122 So. 3d 440, 447 (Fla. 1st DCA 2013),

quashed on other grounds by Westphal v. City of St. Petersburg, 41 Fla. L. Weekly

S261 (Fla. June 9, 2016). We noted with approval the United States Supreme

Court case of Arizona v. Rumsey, 467 U.S. 203 (1984), which stated the rule of

law “that a Court should not depart from precedent in the absence of a special

justification.” Westphal, 122 So. 3d at 447. While the court in Westphal departed

from precedent, it did so based on two justifications not present in the existing

case: 1) that the legal argument (unconstitutional application of the statute) had not

been made in the previous cases; and 2) the prior court interpretation had spawned

unexpected and unjust results. Neither is present or argued in this case. The

precise argument made by the Department in this case was previously rejected in

Kendrick and Magwood. Further, there is no evidence that any unexpected results


                                           51
have occurred as a result of this court’s precedent. A review of the case law

demonstrates a system that is operating well with reasonable limited review of

decisions to segregate prisoners.

      The Department’s main arguments for overturning precedent are that 1) by

not confining challenges to the Leon County Circuit Court, it may receive

inconsistent decisions affecting its ability to supervise prisoners; and 2) the habeas

standard of review may lead to the courts micromanaging the prison system. Mere

speculation concerning possible inconvenience is insufficient to justify abandoning

precedent. In fact, a review of prior case law demonstrates the Department’s fears

are unrealistic.

      The Department has not cited one instance in 35 years in which there has

been an inconsistent circuit or appellate decision which has affected its ability to

manage the prison population. Our court system is designed to resolve such

conflicts should they arise. Nor is there any evidence that trial judges in circuits

other than the Second Circuit would not render well-thought-out decisions

concerning whether the Department is following its rules or providing minimal due

process in imposing administrative segregation.          Departmental convenience

concerning Leon County venue privileges is not a valid reason for limiting this

important right of inmates.




                                         52
      The majority asserts that the courts should not be involved in

micromanaging the Department in its difficult job of maintaining control within the

prison system, and therefore, we should recede from our prior case law. No one

disputes it is a difficult job to manage inmates, but the Department has failed to

demonstrate that in almost 35 years of limited court oversight, the courts have

interfered with the operation of the prison system. No specific instance concerning

micromanagement is cited. Few, if any, decisions have resulted in the

Department’s decisions being overturned.        Review even by habeas corpus is

limited in nature. The present habeas corpus review is limited and does not allow

an inmate to bring an action in circuit court until all administrative remedies have

been exhausted. See Sutton v. Strickland, 485 So. 2d 25 (Fla. 1st DCA 1986). The

Department has a full opportunity during the administrative process to demonstrate

it has met the limited due process rights afforded an inmate concerning

classification decisions. See, e.g., Plymel, 770 So. 2d at 249. Decisions of the

Department have not been second-guessed, but court oversight has served to

protect from totally arbitrary actions of the Department or substantial failure of the

Department to follow its own rules. Id.

      In those rare occurrences where the Department has been required to

respond, it has primarily been for the Department to present record evidence that it

has followed its own rules. See, e.g., Thompson, 509 So. 2d 391. Again, the



                                          53
convenience of the Department to have cases filed in Leon County does not justify

overturning our precedent.

      Reasonable oversight does not violate separation of powers principles. In

fact, it is the duty of the court to provide limited oversight to prevent arbitrary

abuses. It cannot be reasonably argued that such abuses may not occur. The courts

need to be available, even if on a limited basis, to prevent such behavior. Because

the Department has failed to demonstrate that “special justification” for

overturning our well-reasoned precedent, I would not do so.




                                        54
MAKAR, J., dissenting.

      Thirty-five years of precedent are jettisoned, replaced in part by a pastiche of

legal concepts cobbled together to create a newfound remedy, proving the adage

that a camel is a horse designed by committee. Neither constitutional text,

precedent, nor changed circumstances support the result; conflict and confusion are

created where none has existed; and unforeseen, hydra-like consequences are born.

Little commends the end product; it’s a solution for a non-existent problem.

      Let’s put this en banc case—purportedly of exceptional importance—in

context. It is one of a miniscule subcategory of inmate petitions comprising about

0.2% of our annual workload of approximately 5000 cases. About ten times a year,

an inmate put in close management (CM) seeks judicial review, claiming his

placement is so arbitrary or oppressive as to invoke judicial intervention. Relief is

usually denied, sometimes summarily, but not always. The judicial burden of

processing these few cases pales in comparison to the avalanche of prisoner

petitions processed in this Court8 and others9 for which relief is most often denied.

See Harvard v. Singletary, 733 So. 2d 1020, 1023 (Fla. 1999) (“Many prisoner



8
  In 2015, 1079 original criminal petitions were filed in this Court, the bulk of
which involve inmates seeking extraordinary writs. This number has been
approximately 1000 petitions annually since 2011.
9
  In 2015, 691 original criminal petitions were filed in the Florida Supreme Court
seeking extraordinary writs. This exceeds the 500 mentioned in its decision in
Harvard v. Singletary, 733 So. 2d 1020 (Fla. 1999).


                                         55
petitions are successive, and a large number are completely without merit.”). From

a judicial administration perspective, we face greater challenges than the

processing of this lilliputian sliver of our docket.

      For over three decades, our precedent has authorized this process, one that

has proven neither unworkable nor controversial. See, e.g., Costello v. Strickland,

418 So. 2d 443 (Fla. 1st DCA 1982) (granting relief in prisoner’s challenge to CM

status raised in a habeas petition). Now, the Department wants us to depart from

our long-standing precedent, eliminating judicial review of its CM decisions

entirely. It asks that we abandon an established constitutional remedy, the writ of

habeas corpus, which is “granted freely and without cost” and “shall never be

suspended,” article I, section 13, Florida Constitution, because using it in the CM

context is a “diminution of the Great Writ that must end.” 10 The Department says

that the status quo “may have made sense years ago when little was known about

the conditions of CM units and allegations of arbitrary placement abounded.”

Judicial review of CM challenges should be eliminated, we are told, because CM

processes have evolved and become so “modern” as to operate independently of

the judicial branch without fear that abuses in prison will occur.

10
   Sight should not be lost that the writ was originally judicially-created
specifically as “an instrument by which [judges] supervised imprisonment orders
made anywhere, by anyone, for any reason.” Paul D. Halliday, Habeas Corpus:
From England to Empire 9 (Harvard University Press 2010). It exists as the
quintessential writ by which judges are to hear the pleas of any and all who are
imprisoned.

                                           56
      The claim that judicial precedents over the past decades justify overruling

our caselaw has no support whatsoever. Nothing in the Florida or United States

constitutions has changed; no case from the United States Supreme Court or the

Florida Supreme Court in the past thirty-five years suggests that our precedents on

this topic should be abandoned; and decisions of our sibling courts are in accord

with our precedents. Indeed, no court nationwide has done what the Department

asks us to do.

      The entire linchpin of the Department’s theory is Sandin v. Conner, 515 U.S.

472 (1995), a twenty-year-old decision that limited—but did not eliminate—

judicial review of disciplinary challenges. Sandin specifically left open review

where an institution imposes an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Id. at 484. Courts nationwide have

cited Sandin 16,628 times, but none have read it as ushering in the elimination of

judicial review of CM-type assignments. The Department also cites a smattering of

cases that purportedly support the total elimination of an inmate’s liberty interest in

the CM context, but none specifically do so; and the cases are either unpublished,

non-precedential, or they merely support the general concept from Sandin that only

atypical and significant conditions create a protectable interest.




                                          57
      Moreover, though debate exists on the baseline of Sandin’s standard, 11 no

debate exists on its application; courts have routinely applied it to decide whether a

prison placement falls within its parameters. The United States Supreme Court has

done so. See, e.g., Wilkinson, 545 U.S. at 223 (concluding that “assignment to

[Supermax prison] imposes an atypical and significant hardship under any

plausible baseline”). And, indeed, we’ve applied it a number of times and found it

workable. See, e.g., John v. Crews, 149 So. 3d 149, 151 (Fla. 1st DCA 2014)

(“Based on Sandin, appellant’s placement in disciplinary confinement for forty-

three days did not present an atypical, significant deprivation implicating the

protections of the due process clause.”).

      Simply said, no precedent supports a deviation from stare decisis; no flawed

logic has been shown; and recasting the status quo in another form serves no

purpose. Our precedents have not thrust us into “improper judicial second-

guessing” of governmental actions, whether dangerous or otherwise, as the Court

believes; nor have they—as the Court claims—“encourage[d] excessive state

judicial oversight and interference with prison management, without any real

substance at stake or real benefit conferred on state prisoners while creating a risk

of diminishing state prison security and safety.” Maj. Op. at 17. Not a single

11
  Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (“In Sandin’s wake the Courts of
Appeals have not reached consistent conclusions for identifying the baseline from
which to measure what is atypical and significant in any particular prison
system.”).

                                            58
instance has been brought to our attention to support the claim that the judges of

this Court or any other have acted improperly or, through excessive oversight,

interfered with prison operations for no good reason.

      And no “changed circumstances” warrant the exercise of en banc powers to

overturn our caselaw. While it is highly laudable that Florida’s prison system has

adopted additional rules, procedures, and protocols for CM assignments, which are

said to be solely non-punitive management tools, that does not logically mean that

courts should fold up their tents and forego judicial review, particularly under

separation of powers principles. Courts exist to protect rights, and no law or

tradition exists to abdicate that responsibility absent the most compelling of

justifications. We are in the business of reviewing governmental actions that may

impinge on people’s rights; administrative deference, not judicial abdication, is

what’s due.

      What’s more, the United States Supreme Court has made clear that the

determination of an inmate’s liberty interest is not based solely on what state

regulations say (or how numerous and dense they are), but on the nature of prison

conditions imposed relative to prison life generally. The Court explained this point

as follows:

      After Sandin, it is clear that the touchstone of the inquiry into the
      existence of a protected, state-created liberty interest in avoiding
      restrictive conditions of confinement is not the language of
      regulations regarding those conditions but the nature of those


                                        59
      conditions themselves ‘in relation to the ordinary incidents of prison
      life.’
Wilkinson, 545 U.S. at 223 (citation omitted) (emphasis added). Thus, contrary to

the Department’s (and the Court’s) view that inmates “do not have a liberty interest

in their custody status while in prison,” it is clear they do, albeit more narrowly

circumscribed. We are in no position to overrule the United States Supreme Court

on this point. And the high court has clearly said that facial readings of prison

regulations are not the touchstone; instead, it is the nature of the actual conditions

imposed. This makes sense because of the improbability of a state promulgating

prison regulations that facially impose atypical, significant restrictions.

      A few final observations. First, the Court concedes that by overturning long-

standing precedent it creates conflict with our sibling courts and potentially our

supreme court. The result is a judicial outlier in a sea of precedent to the contrary;

no court anywhere has read Sandin as does this Court. We will be seen as straining

to squeeze juice from Sandin’s timeworn rind, overplaying its significance, and

altering our caselaw for no good reason. Second, the Court’s lengthy opinion and

new-fangled remedy, much like a Rube Goldberg machine, are over-engineered to

perform what has been a simple, uncomplicated, and non-controversial task; they

will likely create unnecessary confusion and have the unintended consequence of

increased prisoner litigation. It is said the new remedy specifically does not

displace existing review via a petition for a writ of habeas corpus based on prison


                                          60
conditions in the CM system. Thus, inmates will now file two petitions, one

seeking mandamus to review the CM placement decision, and another seeking a

writ of habeas corpus to review the conditions of CM. This will undoubtedly result

in more burdens on judicial administration, not fewer. And prisoners who pursue

the new remedy, if indigent, as most are, will impose further burdens due to the

process and paperwork necessary to waive filing fees in this new class of cases.

Finally, courts have a role to play in making the law understandable and efficient;

we accomplish neither in this case. If it ain’t broke, don’t fix it.




                                           61
