         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D18-639
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JAMES LEVOY WATERS,

    Appellant,

    v.

MARK INCH, Secretary, Florida
Department of Corrections,
Tallahassee, Florida; and GEO
GROUP, INC., Boca Raton,
Florida,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Charles W. Dodson, Judge.

                        January 25, 2019


PER CURIAM.

     James Levoy Waters (Appellant) appeals the dismissal of his
petition for writ of mandamus. For the reasons that follow, we
reverse.

     In his mandamus petition, Appellant asserted that GEO
Group, Inc., the private company that manages the correctional
facility where he is housed, and the Secretary of the Florida
Department of Corrections (“DOC”) (collectively, Appellees) had an
indisputable legal duty to follow the rules of chapter 33 of the
Florida Administrative Code that govern the impounding,
safekeeping, and return of inmates’ personal property and the
investigation of claims of missing inmate property and that they
failed to follow those rules. Specifically, he alleged in part that
Appellees failed to list his folder containing eight depositions on
the Inmate Impounded Personal Property List when his property
was impounded upon his placement in administrative
confinement, Appellees failed to return the folder to him upon his
release from confinement, and Appellees failed to adequately
investigate his claim during the grievance proceedings. Appellant
showed he had exhausted his administrative remedies. Following
the trial court’s issuance of an order to show cause, each Appellee
filed a response to the petition, denying that they ever received or
had control over the alleged legal documents, and GEO further
asserting that a diligent search confirmed that it does not possess
the documents.

     The trial court entered an Order Dismissing Petition for Writ
of Mandamus, reasoning that (1) to the extent Appellant seeks to
compel the return of allegedly lost legal documents, mandamus
relief is unavailable because he has other adequate remedies
available; (2) mandamus is not a proper remedy because a factual
dispute exists concerning the inventorying, storing, and returning
of Appellant’s legal documents; and (3) to the extent Appellant
requests monetary reimbursement for his legal documents, he is
not entitled to relief because mandamus is not an appropriate
vehicle for seeking monetary damages. This appeal followed.

     We review the dismissal of a mandamus petition de novo.
Waters v. Dep’t of Corr., 144 So. 3d 613, 615 (Fla. 1st DCA 2014).
“In order to be entitled to a writ of mandamus, the petitioner must
have a clear legal right to the requested relief, the respondent must
have an indisputable legal duty to perform the requested action,
and the petitioner must have no other adequate remedy available.”
Fla. Agency for Health Care Admin. v. Zuckerman Spaeder, LLP,
221 So. 3d 1260, 1263 (Fla. 1st DCA 2017).

     Appellant challenges in part the trial court’s reasons for
dismissal, which we will address in turn. The trial court’s first
stated reason for dismissal was the availability of other adequate
remedies. However, mandamus may be used to compel an agency

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to follow its own rules. Waters, 144 So. 3d at 615. Rule 33-
602.201(7) governs impounded inmate property and provides in
part that when it is necessary to impound an inmate’s personal
property, “that property shall be taken, handled, processed, and
secured in a manner that will safeguard it from loss, damage,
destruction, or theft while it is under the control of the
department.” Fla. Admin. Code R. 33-602.201(7)(a). An inmate’s
property “will be inventoried according to the following procedure
on Form DC6-220, Inmate Impounded Personal Property List, and,
whenever practical, in the presence of the inmate.” Fla. Admin.
Code R. 33-602.201(7)(b). “The inventory shall specifically list and
identify each item or each group or package of personal items such
as letters, legal papers, etc. as an assortment on Form DC6-220.”
Fla. Admin. Code R. 33-602.201(7)(b)1.

     “Grievances concerning lost personal property shall be
processed according to the provisions of [chapter 33] and
paragraphs 33-602.201(14)(a) through (e), F.A.C.” Fla. Admin.
Code R. 33-103.010.        “Any request for compensation or
replacement of missing items shall be initiated via the inmate
grievance process by the inmate whose property is missing.” Fla.
Admin. Code R. 33-602.201(14)(a). “If the grievance is approved,
the assistant warden or other designee of the warden shall conduct
an investigation of the loss.”       Fla. Admin. Code R. 33-
602.201(14)(b). “The degree of investigation is determined by the
complexity of the issue and the content of the grievance.” Fla.
Admin. Code R. 33-103.007(6)(e).

     Accordingly, we, as well as other courts, have deemed
mandamus to be a proper vehicle for seeking the return of inmate
property, including legal documents. See Hill v. Crews, 109 So. 3d
267, 267-68 (Fla. 1st DCA 2013) (reversing the dismissal of claims
regarding a bank book and legal documents in a mandamus
petition seeking to compel the DOC to follow its rules governing
missing inmate property); see also Brown v. State, 913 So. 2d 27,
28 (Fla. 3d DCA 2005) (reversing the denial of the mandamus
petition that sought the return of legal documents that were lost
or misplaced by the correctional institution and remanding with
instruction to have the missing documents returned without cost
to the appellant); Tweed v. Sistrunk, 697 So. 2d 888, 889 (Fla. 5th
DCA 1997) (reversing in part the denial of the mandamus petition

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seeking the return of improperly withheld property upon
disagreeing with the appellee that “Title 33 of the Florida
Administrative Code does not afford appellant a right to his
property insofar as it is authorized and he has storage space
available”). Thus, the trial court’s first reason for dismissal was
erroneous because mandamus is the proper vehicle for seeking to
compel Appellees to follow their rules and return Appellant’s legal
documents.

     The trial court further reasoned that mandamus is not a
proper remedy because a factual dispute exists. The trial court
specifically determined that “resolution of this case would require
testimony and an evidentiary hearing to resolve questions of fact.”
As we have stated, however, if a mandamus petition and response
raise disputed issues, “the trial court must resolve those issues
upon evidence submitted by the parties” and the court “errs in
denying a petition unless there is sworn evidence refuting the
petitioner’s allegations.” Tracy v. State, 219 So. 3d 958, 959 (Fla.
1st DCA 2017); see also Williams v. State, 163 So. 3d 618, 620 (Fla.
4th DCA 2015) (explaining the same and instructing the trial court
on remand that if the response does not resolve the factual dispute,
the court should hold an evidentiary hearing). As such, the trial
court erred in dismissing the petition after determining that
questions of fact remained; instead, it should have held an
evidentiary hearing.

     The trial court’s final reason for dismissal was that to the
extent Appellant is seeking monetary reimbursement for his legal
documents, mandamus is not an appropriate vehicle for seeking
monetary damages. The court cited Newsome v. Singletary, 637
So. 2d 9 (Fla. 2d DCA 1994), receded from on other grounds, Stovall
v. Cooper, 860 So. 2d 5 (Fla. 2d DCA 2003), and Flournoy v. Moore,
752 So. 2d 35 (Fla. 1st DCA 2000), in support. Unlike the
appellants in those cases, Appellant here did not pray for relief in
the form of money damages. Additionally, Flournoy and Newsome
involved habeas petitions. As we have explained, mandamus is
the proper vehicle for seeking to compel an agency to follow its
rules and for seeking the return of inmate property. In fact, rule
33-602.201(7) governs the impounding of inmate property, and
rule 33-602.201(14) sets forth the procedures to be followed when
an inmate’s property cannot be located and specifically provides

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that “[a]ny request for compensation or replacement of missing
items shall be initiated via the inmate grievance process.” Thus,
the trial court’s third reason for dismissal was likewise invalid.

    Therefore, we reverse the order dismissing the petition and
remand for further proceedings.

    REVERSED and REMANDED.

WOLF, LEWIS, and WETHERELL, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


James Levoy Waters, pro se, Appellant.

Ashley B. Moody, Attorney General, and Kristen J. Lonergan,
Assistant Attorney General, Tallahassee, for Appellee Mark Inch,
Secretary, Florida Department of Corrections; Scott J. Seagle of
Coppins Monroe, P.A., Tallahassee, for Appellee GEO Group, Inc.




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