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

DONALD WATERS,                         NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D13-3483

DEPT. OF CORRECTIONS,

      Appellee.

_____________________________/

Opinion filed August 1, 2014.

An appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.

Donald Waters, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney
General, Tallahassee, for Appellee.




WOLF, J.

      Appellant appeals an order dismissing his petition for writ of mandamus for

failure to state a cause of action. We reverse that portion of the order which

determined that appellant did not have a clear legal right to the consideration of the

merits of his grievance appeal on the basis that his grievance appeal was untimely.
      Appellant filed a petition for writ of mandamus with the circuit court

seeking to compel the Department of Corrections (Department) to consider the

merits of his grievance appeal that had been filed pursuant to Florida

Administrative Code Rule 33-103.007, “Appeals and Direct Grievances to the

Office of the Secretary.” Appellant alleged that the Department returned his

grievance appeal without action because it was received more than fifteen calendar

days after the institutional response giving rise to the appeal. See Fla. Admin. Code

R. 33-103.011(1)(c) (“Grievance Appeals to the Office of the Secretary – Must be

received within 15 calendar days from the date the response to the formal

grievance is returned to the inmate.”). In its order returning the appeal, the

Department speculated that appellant’s failure to utilize the institution’s grievance

log/tracking process as outlined in Rule 33-103.006(8) of the Code, may have

contributed to its untimeliness.

      In his petition, appellant asserted that his grievance appeal was timely

because he turned his appeal over to officials at his institution for mailing within

the 15 day deadline. 1 As such, he argues the “Prison Mailbox Rule” adopted in


      1
         Appellant’s formal grievance was denied on September 19, 2012. The
deadline for the Department to receive the appeal was 15 days later on October 4,
2012. Appellant dated his appeal September 28, obtained an institutional “legal
mail” stamp dated September 28, had the appeal notarized September 28, and sent
a follow-up letter to the Secretary on October 3 asserting an original mailing date
of September 28. The Department marked the appeal received on October 5, one
day late.
                                         2
Haag v. State, 591 So. 2d 614 (Fla. 1992), and made applicable to inmate

grievance appeals in Gonzalez v. State, 604 So. 2d 874 (Fla. 1st DCA 1992),

should apply. 2

      In response to the circuit court’s order to show cause why relief should not

be granted, the Department argued that the rule establishing a procedure for

mailing of grievances was set up so an inmate could comply with the mailbox rule

and have the mail stamped as received at the institution rather than when it is

actually received at the central office in Tallahassee.3 The Department asserts that

if an inmate chooses to bypass the grievance logging/tracking procedure and send

it through the mail instead, the appeal is not deemed received until receipt at the

central office. Finally, the Department argues that because inmates are not

“required” to use the U.S. mail to submit a grievance appeal, Gonzalez does not

apply and the grievance appeal would be untimely. Therefore, the Department

argues, appellant did not have a “clear legal right” for the grievance appeal to be



      2
         Of the myriad of issues raised in both the petition and in this appeal, only
the timeliness issue is properly before the court on mandamus.
       3
         The Department also argues that appellant lacked standing to challenge the
process that found his appeal to be untimely. We find this argument wholly
without merit. An inmate has a due process right to the agency complying with its
own rules. A petition for writ of mandamus filed in the circuit court is the correct
manner for an inmate to challenge a determination by the Department that a
grievance appeal is untimely. See, e.g., Whitfield v. Dep’t of Corrections, 107 So.
3d 1210 (Fla. 1st DCA 2013); Gonzalez v. State, 604 So. 2d 874 (Fla. 1st DCA
1992).
                                           3
considered by the Department. Adopting the Department’s arguments, the circuit

court dismissed appellant’s petition.

      An appeal from an order dismissing a petition for writ of mandamus is

reviewed by this court de novo. Johnson v. McNeil, 978 So. 2d 847 (Fla. 1st DCA

2008). “One seeking a writ of mandamus must establish the existence of ‘a clear

legal right to the performance of a clear legal duty by a public officer and that ... no

other legal remedies [are] available.’” Rivera v. Moore, 825 So. 2d 505, 506 (Fla.

1st DCA 2002) (quoting Hatten v. State, 561 So. 2d 562, 563 (Fla. 1990)).

“‘[A]lthough [a writ of mandamus] cannot be used to compel a public agency to

exercise its discretionary powers in a given manner, it may be used to compel the

agency to follow its own rules.’” Rivera, 825 So. 2d at 506 (quoting Williams v.

James, 684 So. 2d 868, 869 (Fla. 2d DCA 1996)). This includes ensuring the

Department complies with inmate grievance rules. Id.

      In Crews v. Malara, 123 So. 3d 144 (Fla. 1st DCA 2013), this court

reviewed the history of the prison mailbox rule in Florida:

      In Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245
      (1988), the United States Supreme Court adopted the “mailbox rule”
      for incarcerated litigants and held that a petition or notice of appeal
      filed by pro se inmate was deemed filed at the moment in time when
      the inmate lost control over the document by entrusting its further
      delivery or processing to agents of the state. In Haag v. State, 591
      So.2d 614 (Fla.1992), the Florida Supreme Court adopted the
      “mailbox rule.” In Thompson v. State, 761 So. 2d 324 (Fla. 2000), the
      inmate was housed at a correctional institution which did not maintain
      outgoing mail logs. The Florida Supreme Court held that the
                                           4
      presumption of timely filing by inmate existed if the legal document
      contained a certificate of service showing that the pleading was
      placed in the hands of prison or jail officials for mailing on a
      particular date and that the presumption shifted to the state the
      burden to prove that the document was not timely placed in prison
      officials’ hands for mailing. The Thompson court stated that,
      “[s]hould the State wish to have a means of verifying or objecting to
      an inmate’s assertion that his or her pleading was actually placed in
      the hands of prison or jail officials on a particular date, we leave it to
      the State to create and implement the mechanism for doing so.”
      Thompson, 761 So.2d at 326. The “mailbox rule” for inmate filings is
      now codified in rule 9.420(a)(2), Florida Rules of Appellate
      Procedure.

Malara, 123 So. 3d at 146 (emphasis added).

      In Gonzalez, 604 So. 2d 874, this court applied the prison mailbox rule to

inmate grievance appeals, holding:

      For similar reasons predicated on the notions of simplicity and
      fairness [as stated in Haag], it is our opinion that the mailbox rule
      should not be limited solely to the filing of petitions or notices of
      appeal in court, but should instead be uniformly applied whenever a
      pro se inmate is required to use the U.S. mail to file documents within
      a limited jurisdictional time frame. Accordingly, in this particular
      instance, where an appeal from a grievance procedure must be
      received by the Department within 15 calendar days of the date of the
      institutional response, under the mailbox rule the appeal is deemed
      ‘received’ by the Department “at the moment in time when the inmate
      loses control over the document by entrusting its further delivery or
      processing to agents of the state.”

Id. at 875-6 (quoting Haag, 591 So. 2d at 617).

      Subsequent to Gonzalez, the Department promulgated Rule 33-103.006(8)

(emphasis added):


                                          5
     (8) Mailing Procedures. The warden or person designated in Rule 33-
     103.002, F.A.C., shall establish a procedure in the institution or
     facility under his supervision for processing those grievances that
     require mailing. Inmates who are filing grievances that require
     mailing shall be required to utilize the procedure set forth in this rule
     when processing their grievances or appeals to the reviewing
     authority of community facilities or the Bureau of Policy Management
     and Inmate Appeals in central office. The institution or facility shall
     provide postage for grievances submitted through this process.
     Procedures implemented shall include, at a minimum, the following:
     (a) The establishment of an office through which grievances shall be
     processed.
     (b) The establishment of a logging and tracking system to record and
     document receipt and mailing of inmate grievances.
     (c) A requirement that the staff person designated to accept the
     grievance to be mailed shall:
     1. Complete the receipt portion of Form DC1-303 for appeals being
     forwarded to central office by entering a log/tracking number and date
     of receipt and sign as the recipient.
     2. Record receipt of the grievance in the institutional log. The staff
     person shall not read or classify the grievance.
     3. Place the grievance in the mail through the institution or facility
     mail service within one workday.
     (d) The inmate shall have his grievance ready for mailing at the time
     he turns it over to staff for processing as described in paragraph (c)
     above. Once this process has been completed, the grievance will not
     be returned to the inmate. If the inmate desires his grievance to be
     forwarded in a sealed envelope, the inmate shall provide to the staff a
     properly addressed envelope so that once the grievance is processed
     by staff, the grievance can be placed into the envelope and sealed for
     forwarding.
     (e) If the inmate elects to mail the grievance to central office directly
     and bypass the logging/tracking process, the inmate may submit his or
     her grievance in a sealed envelope to be placed in the institutional
     bulk mail that is to be mailed daily to central office.

     The Department argues that this rule effectively supplants the prison

mailbox rule developed by Florida courts in the context of inmate grievance

                                        6
appeals. The Department asserts that because the logging/tracking process avoids

the vagaries of the U.S. mail, inmates are not “required” to utilize the U.S. mail,

and Gonzalez is no longer good law. We must disagree.

      In Malara, this court pointed out that because the Department had

established a procedure for legal mail to track the date it changes hands for

purposes of establishing jurisdictional timeframes as suggested in Thompson,

“DOC has a mechanism to rebut the presumption that the inmate’s assertion that

his pleading was actually placed in the hands of prison or jail officials on a

particular date.” Malara, 123 So. 3d at 146.

      Notably, the rule for legal mail prohibits the use of mail drop boxes for

outgoing legal mail. Fla. Admin. Code. R. 33-210.102(8)(g). Because of this

prohibition, there should always be an institutional date stamp on the inmate’s

legal mail if the inmate complies with the rule. However, it is not the existence of

the rule or mechanism that rebuts the presumption that the document was placed in

the mail on the date the inmate asserts, but the institutional stamp itself which the

Department has taken steps to ensure is always in place. In Malara, it was the

institutional date stamp that rebutted the presumption of an earlier date asserted in

the certificate of service, not the mere fact that the Department had instituted the

procedure. 123 So. 3d at 147.




                                         7
      Furthermore, the use of mail drop boxes is not prohibited for grievance

appeals and other direct grievances. It is completely possible for an inmate to

comply with the rule and still have a document that has not been date stamped by

the institution. Unlike the procedure for legal mail, the Department has not created

a procedure to ensure the application of a date stamp that could rebut the

presumption of an inmate’s assertion that a grievance appeal was timely placed

into the hands of prison officials for mailing. There is a reason the Department

allows inmates to bypass staff of the local institution in order to bring a grievance

appeal or other direct filing to the Secretary’s attention. In certain situations, an

inmate may feel compelled to use U.S. mail. If an inmate exercises this option

available in the rule, “notions of simplicity and fairness” should still apply and the

inmate should have the benefit of the presumption.

      In this case, appellant presented several pieces of evidence that he turned his

appeal over to prison officials within the 15-day deadline. Appellant dated the

appeal himself and obtained an institutional “legal mail” stamp. 4 Appellant

followed up with a timely letter to the Secretary asserting the date on which he

turned his appeal over to officials. Furthermore, it can be logically assumed that if


      4
        Inexplicably, the Department and the circuit court ignored this date stamp,
focusing instead on a notary stamp which only certifies the appellant’s signature,
not that he mailed the document on the asserted day. However, we do not wish to
imply such a date stamp is the only way an inmate can “prove” the date of mailing
in order to obtain the benefit of the presumption.
                                           8
the Department received the grievance appeal in the U.S. mail one day after the

deadline, appellant must have placed the appeal in the mail no later than the day

before which was the last day of the deadline.5 The only evidence the Department

presented in rebuttal was that appellant did not take advantage of the

logging/tracking procedure.

      Having failed to present evidence that would rebut the presumption created

by appellant’s evidence, the Department failed to show cause why the petition

should not be granted to compel consideration of appellant’s grievance appeal on

the merits. We, therefore, reverse the circuit court’s dismissal of the petition and

remand for entry of the writ.

      However, appellant also challenges the circuit court’s refusal to appoint

counsel, grant an injunction against retaliation, or otherwise address constitutional

arguments raised in the petition, and the court’s adoption of the Department’s draft

order. Other than as discussed above, we find no error in the circuit court’s actions,

agree that mandamus is not the proper remedy to address constitutional issues, and

otherwise affirm the circuit court’s orders.

      REVERSED IN PART and REMANDED with directions.

PADOVANO and RAY, JJ., CONCUR.

      5
        Notably absent in this case is a copy of the envelope in which appellant
mailed his appeal to the Department. An envelope with an untimely U.S. mail
postmark may be evidence that would decrease the presumption that an inmate
turned his appeal over to officials on the date he asserts.
                                           9
