Preview
PROVIDED TO TOMOM
CORREONCT ON N TITUTION
FOR MAILING BY
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL
CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA
TERRY HILL,
Petitioner,
2023 3Z1-53
v. Case No.: (To Be Assigned)
RICKY DIXON, SEC'Y FLA.
DEPT. of CORR., AND JARRED
COX, WARDEN OF TOMOKA
CORRECTION INSTITUTION
Respondent.
PETITION FOR WRIT OF MANDAMUS
Petitioner, Terry Hill, pro se, pursuant to Florida Rule of Civil
Procedure 1.630 (b) and Schmidt v. Cruesoe, 878 So.2d 361 (Fla.
2003), moves this Honorable Court to issue a writ of mandamus or
other Extraodinary Writ deemed proper for relief from a prison
disciplinary conviction in the above styled cause, and in good faith
grounds will show:
BASIS FOR INVOKING JURISDICTION
This Court has jurisdiction to issue writs of mandamus
pursuant to Florida Rules of Civil Procedure 1.630(a) and Article V,
Section 5(b) of the Florida Constitution, which states that a circuit
court "shall have the power to issue writs of mandamus ... to the
complete the exercise of its jurisdiction." Mandamus relief lies to
compel an agency, such as the Florida Department of Corrections,
to follow its own rules. See William v. Jones, 684 So.2d 868 (Fla. 2d
DCA 1996).
Florida Department of Corrections' officials have a legal duty
to follow their own rules. When they violate this duty, it results in a
due process violation under the 14th Amendment to the U.S.
Constitution. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963,
41 L. Ed. 935 (1974).
For the minimum requirements of procedural due process to
be satisfied in a state prison disciplinary hearing, prisoners must be
provided with advance written notice in order to inform them of the
charges and to enable them to marshal facts and prepare a defense.
Prison Officials must also provide prisoners with a written
statement by the fact finders as to the evidence relied on and the
reasons for the disciplinary action. Further, under procedural due
process, an inmate facing prison disciplinary proceedings should be
allowed to call witnesses and present documentary evidence in his
defense when permitting him to do so will not be unduly hazardous
2
to institutional safety or correctional goals. See Wolff.v. McDonnell,
418 U.S. 539 (1974).
Petitioner has exhausted the institutional and central office
grievance procedure and has no other available remedy. See Plymel
v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000); 2)(b), FAC.
Pro se complaints, due to lack of legal expertise that
accompanies their preparation, are to be liberally construed.
Haines v. Kerner, 404 U.S. 519, 30 L. Ed 652, 92 S. Ct. 594 (1972).
NATURE OF RELIEF SOUGHT
Petitioner requests this Honorable Court to issue a writ of
mandamus compelling the Respondent, the Department of
Corrections, to perform ministerial duties of which Petitioner has a
right or any other extraordinary writ deemed proper to vacate the
challenged Disciplinary Report (DR) and restore Petitioner to his
status prior to the incident.
SWORN STATEMENT OF FACTS
1. August 23, 2023, petitioner, Terry Hill ("Hill") was in an
authorized area and in compliance with the department rules,
sitting at a checker board table at Tomoka Correctional
3
Institution recreation yard, day dreaming, while wearing
sunglasses. TCI has an unwritten policy that Inmates are not
to look at female staff. Officer Bores, mistakenly believed that
Hill was "starring towards" her because she told him to "turn
and face the opposite, direction." According to the Disciplinary
Report Hill did "look away" but then turned back to "look" her
"way." According to the Disciplinary Report Officer Bores had
unnamed staff members to "speak to inmate Hill and he
continued to disobey orders." See Exhibit 2
2. Officer Bores put Hill into handcuffs and placed him into
confinement for violation of F.A.C. ch. (6-1)
Disobeying a Verbal or Written Order.
3. August 23, 2023, Hill was subsequently served with
Disciplinary report fOr violation F.A.C. Chapter
rules of prohibited conduct 6-1 Disobeying a verbal or written
order for looking towards Officer Bores. Hill completed a
witness statement in writing and requested video evidence.
4. August 29, 2023, Disciplinary Hearing Hill was found guilty
for violation F.A.C. ch. (6-1) Disobeying a verbal or
4
written order, based on the statement of Officer Bores, the
names of the staff witnesses were not listed in the Disciplinary
Report. Hill received 30 days loss of gain-time.
5. September 8, 2023, Hill appealed the. Disciplinary Report,
alleging among other things, that the act of looking in the
direction of an Officer is not a violation of the rules or
procedure of the department and that the Disciplinary Report
did not list the names of staff witnesses to the incident as
required by F.A.C. (Ex. 1)
6. September 28, 2023, appeal was denied. Boiler plate response.
Non-issue specific, answer-response declined to address the
Disciplinary Report proceedings, by stating, "you continued to
disobey all orders that were given to you." (Ex. 3)
7. October 4, 2023, Hill appealed the response to the Department
Secretary. In the apptal, Hill detailed, the situation, reiterated
under oath, stated that "looking or starring in an Officer's
direction is not a ch..33 rule violation duly promulgating
pursuant to 120. F.S. And that "Disciplinary Report failed to
note the names of staff witnesses to the incident." (Ex. 4) Hills
5
appeal to the Department Secretary was denied, without
contesting the non rule violation. (Ex. 5)
GROUND ONE ARGUMENT
The act of de facto promulgating of "rules" is an unlawful and
invalid exercise of delegatqd legislative authority. This de facto
application has created an atypical prison environment, beyond the
given authority of the administration and subordinate Officers of
the Florida Department of Corrections (F.D.O.C.). Chapter 33-
102.201 (1) and (2)(d) mandates any "rule" change, or one proposed
as new, be inter alia, posted at least 21 days in advance on bulletin
board of all institutions, as per chapter 120.54(3)(2) F.S.. Also, any
rule which impose any requirement of prisoner's or which confers
any right of Officer's to impose sanctions through penalty, are
statutorily mandated to be duly promulgated via chapter 120 F.S.'s
procedure and chapter 120.54(1)(a) provision. Rule making is not a
matter of agency discretion, and which by law, must operate
uniformly throughout the department. Chapter 33-208.002(1) and
(2)(d). Thus the above and below procedure directive and statutory
law implicitly recognizes that if any requirement is imposed upon
6
prisoners it must be duly promulgated through the procedure or
practice requirements of chapter 33-102.201(1) and (2)(d). See
chapter 120.52(15) and Jenkins v. State, 855 So.2d 72, 79 (Fla. 1st
DCA 2003)
"Any agency statement of policy is a "rule" that must be duly
promulgated in accordance with the A.P.A. If its effect requires
compliance, creates certain rights while adversely affecting others,
or otherwise has the direct and consistent effect of law."
Here, the petitioner submitted a meritorious grievance on such
a matter and T.C.I. Administrators denied it via some vague,
evasive, non-specific, or obscure response such as; "you were in
violation of chapter 33-601.314, rules of prohibited conduct,
Section 6-1 disobeying orders.. You must follow any order given to
you!" Yet, orders, whether written or verbal, must be based in duly
promulgated, published rules if Petitioner, as a prisoner, can be
subject to punishment for non.-compliance.
For example: Chaptey 33-602.210, use of force, implicitly
recognizes official are authorized to compel compliance only if an
order given is a lawful command. See Harris v. D.O. C., 499 So.2d 9
7
(Fla. 1st DCA 1984)(court recognizing it is unlawful to impose
disciplinary sanctions based upon written orders in inmate
handbook when it was the primary source of regulations and those
were never promulgated as rule(s). See Florida Dept. of Offender
Rehabilitation v. Walsh, 352 So.2d 575 (Fla. 1st DCA 1977)(directive
of the Fl. Dept. of Offender Rehab. Was [in fact] a "rule" under this
(chapter 120.52) section and should have been adopted as required
by this chapter and since it was not, it was void).
Thus, in regard to this written orders provision, it logically
must be confined in scope to either existing chapter 33 rules, or be
case specific written orders such as: to report to a call-out or abide
by any provision conferring upon local officials discretion (i.e. to
designate areas off limits or other such areas.) Chapter 33-601.314,
6-1 "disobeying a written order" was never intended to be extended
by interpretation to vest unbridled discretion in local prison
administrators to create local rules at whim. See Mahon v. County
of Sarasota, 177 So.2d 655 (Fla. 1955)(it is a denial of due process
and equal protection to make the execution of a law dependent
upon the unbridled discretion of a single official.)
8
The underlying premise being, that if any written or verbal
order substantially affects any rule created right, liberty interest, or
basic right, it must be first duly promulgated,and cannot be cleverly
extended by construction or interpretation in that way, were it
otherwise, then the 6-1 written order provision would run afoul of §
120.52(8)(d), where any rule that purports to bestow discretion on
an agency official that is not specifically provided for in the enabling
statute, must specifically state when and how that discretion is to
be exercised. See Cortes v. Board of Regents, 665 So.2d 132 (Fla. 1st
DCA 1985) and § 120.52(8)(d) F.S. In this regard, it is well settled
principle in Florida law that even where an official has discretion,
that discretion is not unbounded. See grimes v. Walton County, 591
So.2d 1091 (Fla. 1st DCA 1992); 120.52(8) chapter 33-102.201(1)
and (2), and procedure 101.001 (4)(5) and (8).
Engrained in our concept of due processes is the requirement
of notice, Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240,
243, 2d L.Ed. 228 (1957). Clearly, there is no duly promulgated rule
within chapter 33 that prohibits a prisoner from looking in the
direction of a female staff. As there is no duly promulgated rule that
9
supports FDOC's issuance of a D.R. For a prisoner in an authorized
recreation yard in compliance with the department rules "day
dreaming""looking in the direction" of a female staff. Petitioner's
request for mandamus relief is warranted.
GROUND TWO ARGUMENT
Petitioner established a clear legal right to have the
Department comply with its own rule that (staff) witnesses to an
incident shall be included on the disciplinary report and the DR
hearing. Failure to note and explain exclusion of evidence or (staff)
witnesses considered violates due process. Ch. 1)(g) and
(3)(i); Holcomb v. Dept. of Corrections, 609 So.2d 751 (Fla. 1st DCA
1991); Osterback v. Singletary, 679 So.2d 43 (Fla 1st DCA 1996).
Here, although (staff) witnesses were considered, the names
and statements of the (staff) witnesses were not revealed to the
Petitioner, and the failure is not explained with penological
justification in the DR worksheet, Ch. amounted to a
denial of due process, because it impaired petitioner's ability to
challenge the DOC's revocation of 30 days gain-time.
10
CONCLUSION
WHEREFORE, based upon the foregoing facts,
arguments, authorities,and attachments, Petitioner submits his
Fourteenth Amendment rights have been violated by denial of his
timely and repeated relief from a faulty D.R. For a non rule
violation.
THEREFORE, Petitioner respectfully prays for a Writ of
Mandamus to compel Respondent to perform ministerial duties of
which Petitioner has a right as described above or other
extraordinary Writ deemed proper to vacate the challenged D.R.
And restore all adversities, including 30 days gain-time.
rkit12
Terry Hill, DC # 762155
11
UNNOTARIZED OATH
Under penalties of perjury, I declare that I have read the
foregoing and that the facts stated in it are true, in accordance with
§ 92.525(2) Fla. Stat. (2022).
96
, CeP
Terry Hill, DC # 762155
CERTIFICATE OF SERVICE
I CERTIFY that I placed this document in the hands of
Tomoka C.I. Prison Officials for mailing by U.S. mail to:
Respondent, Secretary of the Florida Department of Corrections,
Ricky Dixon, 501 S. Calhoun St., Tallahassee, FL 32399-2500, on
this IS'day of No rplarr\19 -- , 2023.
VUL__
Terry Hill, DC # 762155
Tomoka Correctional Institution
3950 Tiger Bay Road
Daytona Beach, Fla. 32124
CERTIFICATE OF COMPLIANCE
I hereby certify that this petition complies with the font
requirements and word count of Florida Rule of Appellate Procedure
9.100 and 9.045 (b).
Terry Mill, DC # 762155
12
PROVIDED TO TOMOKA
CORRECTION LIFITUTION
ON
FOR MAILING B
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL
CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA
TERRY HILL,
Petitioner,
v. Case No.: (To Be Assigned)
RICKY DIXON, SEC'Y FLA.
DEPT. of CORR., AND JARRED
COX, WARDEN OF TOMOKA
CORRECTION INSTITUTION
Respondent.
EXHIBITS
Exhibits Documents Dates
1 Grievance # 9-8-23
2 Disciplinary Report 8-23-23
3 Grievance Response 9-28-23
4 Grievance Appeal # 10-3-23
5 Appeal Response 10-16-23
CERTIFICATE OF SERVICE
I CERTIFY that I placed this document in the hands of
Tomoka C.I. Prison Officials for mailing by U.S. mail to:
Respondent, Secretary of the Florida Department of Corrections,
Ricky Dixon, 501 S. Calhoun St., Tallahassee, FL 32399-2500, on
this trday of Noue.mttver 2023.
—free Ute--0
'
Terry Hill, DC # 762155
Tomoka Correctional Institution
3950 Tiger Bay Road
Daytona Beach, Fla. 32124
FLORIDA DEPARTNIENTOF CORRECTIONS
rt A REQUEST FOR ADMINISTRATIVE REMEDYOR APPEAL
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FLORIDA DEPARTMENT OF CORRECTIONS 08/29/2023
0,41 DISCIPLINARY REPORT PAGE 1
t 4 HEARINS INFORMATION
LOG 4
DC4: 762155 INMATE NAME: HILL, TERRY L.
B3101L INFRACTION
VI6LATION. CODE: 0061 TITLE: DISOBEYING ORDER DATE: 08/23/2023
FACILITY CODE: 282 NAME: TOMOKA C.I. TIME: 19.20
TEAM FINDINGS AND ACTION DATE: 08/29/2023, AT: 09.49
INMATE OFFERED STAFF ASSISTANCE: DECLINED
INMATE PLEA: NOT GUILTY FINDINGS: GUILTY
INMATE PRESENT: YES ,
POSTPONEMENT:
BASIS-FOR DECISION:
THE SUBJECT WAS FOUND GUILTY OF CHARGE VIOLATION F.A.C.
CHAPTER 33-601.314 RULES OF PROHIBITE CONDUCT 6-1;
DISOBEYING A VERBAL OR WRITTEN ORDER. BASED ON THE EYE
WITNESS STATEMENT SGT.BORES "ON 08/23/2023 AT APPROXIMATELY
1920 HRS, WHILE ASSIGNED AS KILO SERGEANT AND MONITORING THE
RECREATION FIELD INMATE HILL, TERRY DC# 762155 WHO WAS OUT
OF D DORM WAS ON THE REC. FIELD. HE WAS SITTING AT THE
CHECKERBOARD TABLE FACING ME JUST STARRING TOWARDS ME, EVERY
TIME I LOOKED HIS WAY HE WAS CONTINUING TO STARE AT ME. I
TOLD INMATE HILL TO TURN AND FACE THE OPPOSITE WAY. INMATE
HILL REFUSED AND CONTINUED TO LOOK MY WAY. INMATE HILL WAS
TOLD MULTIPLE TIMES TO LOOK AWAY. HE WOULD LOOK AWAY THEN
TURN HIMSELF BACK TO LOOK MY WAY. I THEN HAD ADDITIONAL
STAFF SPEAK TO INMATE HILL AND HE CONTINUED TO DISOBEY
ORDERS." IT SHOULD BE NOTED THAT THE TEAM READ AND
CONSIDERED ALL INVESTIGATIVE REPORTS AND WITNESS STATEMENTS.
DC6-112A (DISCIPLINARY INVESTIGATIVE REPORT),
DC6-151(DISPOSITION OF PHYSICAL EVIDANCE), WITNESS
STATEMENTS, DISPOSITION OF VIDEOTAPE EVIDENCE. BASED UPON
REVIEW OF THE IDENTIFIED TAPE OR CAPABILITIES OF THE
PARTICULAR TAPING EQUIPMENT, THE TAPE REQUESTED DOES NOT
PROVIDE EVIDENCE TO SUPPORT THE INMATE'S STATEMENT. APPEAL
THE DECISION BY COMPLETING A DC1-303 FORM AND SUBMITTING
THE FORM TO THE WARDEN. INMATE RELIEVED 30DAYS LOSS OF
GAIN TIME.
ACTIONS. TAKEN:
LOSS. OF GAIN TIME: 30; PROBATION DAYS SET: .0
DISCIPLINARY CONFINEMENT: 0000;AC CREDIT DAYS: 000; ADJUSTED DC DAYS: 000
DC PROBATION DAYS SET: 0000i
RESTITUTION: $.00; INDIV.REVIEW/COUNSEL?: N; CONFISCATE CONTRABAND?: N
TEAM CHAIRMAN: EJ06 - ECHEVARRIA, J.
TEAM MEMBERS: BJS33 - BRICE, J.S.
PART B - RESPONSE
HILL, TERRY 762155 TOMOKA C.I. B3211L
NAME NUMBER FORMAL GRIEVANCE CURRENT INMATE LOCATION HOUSING LOCATION
LOG NUMBER
Your Request for Administrative Remedy or Appeal was received and reviewed with the
following response provided:
Officer Bores gave you a direct order to turn the opposite way. You refused and continued
looking directly at Office
Bores after you were advised multiple times to look away. When additional staff ordered you
to look away you
continued to disobey all orders that were given to you. You have not provided this office with any
new information.
Therefore, your grievance is being Denied.
If you feel your grievance was not correctly resolvkl, you may obtain farther administrative
review of your complaint by
obtaining form DC1-303, Request for Administrative Remedy or Appeal, completing the form,
providing attachments as
required by paragraphs 33-103.007(3)(a) and (b), F.A.C., and forwarding your complaint to the Bureau
of Policy
Management and Inmate Appeals, 501 South Calhoun Street, Tallahassee, Florida 32399-2500.
A. Liekweg, CLS C. Driggers, AWP/Acting Warden
ce riggers
SIG TUR AND TYPED OR PRINTED NAME OF SIGNATt7RE OF WARDEN, ASST.
EMPLOYEE RESPONDING WARDEN, OR SECRETARY'S
REPRESENTATIVE
FLUXION DEPARTMENT OF CORRECTIONS RECENED+
REQUEST FOR-ADMINISTRATIVE REMEDY DR
OCT 04 2023
RaCEIVE
El Third Party Grievance Alleging Sexual Abuses OCT 1 0 2023 AsST.WARDEN PROGRAMS
TOMOKA
TO: ❑ Wardtn ❑ Assistant Warden Se,cretary, Flori4DepartmcntAgstmsctions
From or IF Alleging Sexual Abuse, on the behalf of: Inmate Grievance Appeals
14;11 "Terry L 7(4.al S.5 TOMOKA C.I.
Last First Middle Initial DC Number Institution
Part A— Inmate Grievance
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PROVIDED TO TOMOM CORREONCT ON N TITUTION FOR MAILING BY IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA TERRY HILL, Petitioner, 2023 3Z1-53 v. Case No.: (To Be Assigned) RICKY DIXON, SEC'Y FLA. DEPT. of CORR., AND JARRED COX, WARDEN OF TOMOKA CORRECTION INSTITUTION Respondent. PETITION FOR WRIT OF MANDAMUS Petitioner, Terry Hill, pro se, pursuant to Florida Rule of Civil Procedure 1.630 (b) and Schmidt v. Cruesoe, 878 So.2d 361 (Fla. 2003), moves this Honorable Court to issue a writ of mandamus or other Extraodinary Writ deemed proper for relief from a prison disciplinary conviction in the above styled cause, and in good faith grounds will show: BASIS FOR INVOKING JURISDICTION This Court has jurisdiction to issue writs of mandamus pursuant to Florida Rules of Civil Procedure 1.630(a) and Article V, Section 5(b) of the Florida Constitution, which states that a circuit court "shall have the power to issue writs of mandamus ... to the complete the exercise of its jurisdiction." Mandamus relief lies to compel an agency, such as the Florida Department of Corrections, to follow its own rules. See William v. Jones, 684 So.2d 868 (Fla. 2d DCA 1996). Florida Department of Corrections' officials have a legal duty to follow their own rules. When they violate this duty, it results in a due process violation under the 14th Amendment to the U.S. Constitution. See Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 935 (1974). For the minimum requirements of procedural due process to be satisfied in a state prison disciplinary hearing, prisoners must be provided with advance written notice in order to inform them of the charges and to enable them to marshal facts and prepare a defense. Prison Officials must also provide prisoners with a written statement by the fact finders as to the evidence relied on and the reasons for the disciplinary action. Further, under procedural due process, an inmate facing prison disciplinary proceedings should be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous 2 to institutional safety or correctional goals. See Wolff.v. McDonnell, 418 U.S. 539 (1974). Petitioner has exhausted the institutional and central office grievance procedure and has no other available remedy. See Plymel v. Moore, 770 So.2d 242 (Fla. 1st DCA 2000); 2)(b), FAC. Pro se complaints, due to lack of legal expertise that accompanies their preparation, are to be liberally construed. Haines v. Kerner, 404 U.S. 519, 30 L. Ed 652, 92 S. Ct. 594 (1972). NATURE OF RELIEF SOUGHT Petitioner requests this Honorable Court to issue a writ of mandamus compelling the Respondent, the Department of Corrections, to perform ministerial duties of which Petitioner has a right or any other extraordinary writ deemed proper to vacate the challenged Disciplinary Report (DR) and restore Petitioner to his status prior to the incident. SWORN STATEMENT OF FACTS 1. August 23, 2023, petitioner, Terry Hill ("Hill") was in an authorized area and in compliance with the department rules, sitting at a checker board table at Tomoka Correctional 3 Institution recreation yard, day dreaming, while wearing sunglasses. TCI has an unwritten policy that Inmates are not to look at female staff. Officer Bores, mistakenly believed that Hill was "starring towards" her because she told him to "turn and face the opposite, direction." According to the Disciplinary Report Hill did "look away" but then turned back to "look" her "way." According to the Disciplinary Report Officer Bores had unnamed staff members to "speak to inmate Hill and he continued to disobey orders." See Exhibit 2 2. Officer Bores put Hill into handcuffs and placed him into confinement for violation of F.A.C. ch. (6-1) Disobeying a Verbal or Written Order. 3. August 23, 2023, Hill was subsequently served with Disciplinary report fOr violation F.A.C. Chapter rules of prohibited conduct 6-1 Disobeying a verbal or written order for looking towards Officer Bores. Hill completed a witness statement in writing and requested video evidence. 4. August 29, 2023, Disciplinary Hearing Hill was found guilty for violation F.A.C. ch. (6-1) Disobeying a verbal or 4 written order, based on the statement of Officer Bores, the names of the staff witnesses were not listed in the Disciplinary Report. Hill received 30 days loss of gain-time. 5. September 8, 2023, Hill appealed the. Disciplinary Report, alleging among other things, that the act of looking in the direction of an Officer is not a violation of the rules or procedure of the department and that the Disciplinary Report did not list the names of staff witnesses to the incident as required by F.A.C. (Ex. 1) 6. September 28, 2023, appeal was denied. Boiler plate response. Non-issue specific, answer-response declined to address the Disciplinary Report proceedings, by stating, "you continued to disobey all orders that were given to you." (Ex. 3) 7. October 4, 2023, Hill appealed the response to the Department Secretary. In the apptal, Hill detailed, the situation, reiterated under oath, stated that "looking or starring in an Officer's direction is not a ch..33 rule violation duly promulgating pursuant to 120. F.S. And that "Disciplinary Report failed to note the names of staff witnesses to the incident." (Ex. 4) Hills 5 appeal to the Department Secretary was denied, without contesting the non rule violation. (Ex. 5) GROUND ONE ARGUMENT The act of de facto promulgating of "rules" is an unlawful and invalid exercise of delegatqd legislative authority. This de facto application has created an atypical prison environment, beyond the given authority of the administration and subordinate Officers of the Florida Department of Corrections (F.D.O.C.). Chapter 33- 102.201 (1) and (2)(d) mandates any "rule" change, or one proposed as new, be inter alia, posted at least 21 days in advance on bulletin board of all institutions, as per chapter 120.54(3)(2) F.S.. Also, any rule which impose any requirement of prisoner's or which confers any right of Officer's to impose sanctions through penalty, are statutorily mandated to be duly promulgated via chapter 120 F.S.'s procedure and chapter 120.54(1)(a) provision. Rule making is not a matter of agency discretion, and which by law, must operate uniformly throughout the department. Chapter 33-208.002(1) and (2)(d). Thus the above and below procedure directive and statutory law implicitly recognizes that if any requirement is imposed upon 6 prisoners it must be duly promulgated through the procedure or practice requirements of chapter 33-102.201(1) and (2)(d). See chapter 120.52(15) and Jenkins v. State, 855 So.2d 72, 79 (Fla. 1st DCA 2003) "Any agency statement of policy is a "rule" that must be duly promulgated in accordance with the A.P.A. If its effect requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law." Here, the petitioner submitted a meritorious grievance on such a matter and T.C.I. Administrators denied it via some vague, evasive, non-specific, or obscure response such as; "you were in violation of chapter 33-601.314, rules of prohibited conduct, Section 6-1 disobeying orders.. You must follow any order given to you!" Yet, orders, whether written or verbal, must be based in duly promulgated, published rules if Petitioner, as a prisoner, can be subject to punishment for non.-compliance. For example: Chaptey 33-602.210, use of force, implicitly recognizes official are authorized to compel compliance only if an order given is a lawful command. See Harris v. D.O. C., 499 So.2d 9 7 (Fla. 1st DCA 1984)(court recognizing it is unlawful to impose disciplinary sanctions based upon written orders in inmate handbook when it was the primary source of regulations and those were never promulgated as rule(s). See Florida Dept. of Offender Rehabilitation v. Walsh, 352 So.2d 575 (Fla. 1st DCA 1977)(directive of the Fl. Dept. of Offender Rehab. Was [in fact] a "rule" under this (chapter 120.52) section and should have been adopted as required by this chapter and since it was not, it was void). Thus, in regard to this written orders provision, it logically must be confined in scope to either existing chapter 33 rules, or be case specific written orders such as: to report to a call-out or abide by any provision conferring upon local officials discretion (i.e. to designate areas off limits or other such areas.) Chapter 33-601.314, 6-1 "disobeying a written order" was never intended to be extended by interpretation to vest unbridled discretion in local prison administrators to create local rules at whim. See Mahon v. County of Sarasota, 177 So.2d 655 (Fla. 1955)(it is a denial of due process and equal protection to make the execution of a law dependent upon the unbridled discretion of a single official.) 8 The underlying premise being, that if any written or verbal order substantially affects any rule created right, liberty interest, or basic right, it must be first duly promulgated,and cannot be cleverly extended by construction or interpretation in that way, were it otherwise, then the 6-1 written order provision would run afoul of § 120.52(8)(d), where any rule that purports to bestow discretion on an agency official that is not specifically provided for in the enabling statute, must specifically state when and how that discretion is to be exercised. See Cortes v. Board of Regents, 665 So.2d 132 (Fla. 1st DCA 1985) and § 120.52(8)(d) F.S. In this regard, it is well settled principle in Florida law that even where an official has discretion, that discretion is not unbounded. See grimes v. Walton County, 591 So.2d 1091 (Fla. 1st DCA 1992); 120.52(8) chapter 33-102.201(1) and (2), and procedure 101.001 (4)(5) and (8). Engrained in our concept of due processes is the requirement of notice, Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2d L.Ed. 228 (1957). Clearly, there is no duly promulgated rule within chapter 33 that prohibits a prisoner from looking in the direction of a female staff. As there is no duly promulgated rule that 9 supports FDOC's issuance of a D.R. For a prisoner in an authorized recreation yard in compliance with the department rules "day dreaming""looking in the direction" of a female staff. Petitioner's request for mandamus relief is warranted. GROUND TWO ARGUMENT Petitioner established a clear legal right to have the Department comply with its own rule that (staff) witnesses to an incident shall be included on the disciplinary report and the DR hearing. Failure to note and explain exclusion of evidence or (staff) witnesses considered violates due process. Ch. 1)(g) and (3)(i); Holcomb v. Dept. of Corrections, 609 So.2d 751 (Fla. 1st DCA 1991); Osterback v. Singletary, 679 So.2d 43 (Fla 1st DCA 1996). Here, although (staff) witnesses were considered, the names and statements of the (staff) witnesses were not revealed to the Petitioner, and the failure is not explained with penological justification in the DR worksheet, Ch. amounted to a denial of due process, because it impaired petitioner's ability to challenge the DOC's revocation of 30 days gain-time. 10 CONCLUSION WHEREFORE, based upon the foregoing facts, arguments, authorities,and attachments, Petitioner submits his Fourteenth Amendment rights have been violated by denial of his timely and repeated relief from a faulty D.R. For a non rule violation. THEREFORE, Petitioner respectfully prays for a Writ of Mandamus to compel Respondent to perform ministerial duties of which Petitioner has a right as described above or other extraordinary Writ deemed proper to vacate the challenged D.R. And restore all adversities, including 30 days gain-time. rkit12 Terry Hill, DC # 762155 11 UNNOTARIZED OATH Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true, in accordance with § 92.525(2) Fla. Stat. (2022). 96 , CeP Terry Hill, DC # 762155 CERTIFICATE OF SERVICE I CERTIFY that I placed this document in the hands of Tomoka C.I. Prison Officials for mailing by U.S. mail to: Respondent, Secretary of the Florida Department of Corrections, Ricky Dixon, 501 S. Calhoun St., Tallahassee, FL 32399-2500, on this IS'day of No rplarr\19 -- , 2023. VUL__ Terry Hill, DC # 762155 Tomoka Correctional Institution 3950 Tiger Bay Road Daytona Beach, Fla. 32124 CERTIFICATE OF COMPLIANCE I hereby certify that this petition complies with the font requirements and word count of Florida Rule of Appellate Procedure 9.100 and 9.045 (b). Terry Mill, DC # 762155 12 PROVIDED TO TOMOKA CORRECTION LIFITUTION ON FOR MAILING B IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR VOLUSIA COUNTY, FLORIDA TERRY HILL, Petitioner, v. Case No.: (To Be Assigned) RICKY DIXON, SEC'Y FLA. DEPT. of CORR., AND JARRED COX, WARDEN OF TOMOKA CORRECTION INSTITUTION Respondent. EXHIBITS Exhibits Documents Dates 1 Grievance # 9-8-23 2 Disciplinary Report 8-23-23 3 Grievance Response 9-28-23 4 Grievance Appeal # 10-3-23 5 Appeal Response 10-16-23 CERTIFICATE OF SERVICE I CERTIFY that I placed this document in the hands of Tomoka C.I. Prison Officials for mailing by U.S. mail to: Respondent, Secretary of the Florida Department of Corrections, Ricky Dixon, 501 S. Calhoun St., Tallahassee, FL 32399-2500, on this trday of Noue.mttver 2023. —free Ute--0 ' Terry Hill, DC # 762155 Tomoka Correctional Institution 3950 Tiger Bay Road Daytona Beach, Fla. 32124 FLORIDA DEPARTNIENTOF CORRECTIONS rt A REQUEST FOR ADMINISTRATIVE REMEDYOR APPEAL F❑ FFFFF FFFFF FFFFFFFFF FFFFFFFF FFFFFF FFFFF FFFFF2— TO: EWarden 0 Assistant Warden From or IF Alleging Sexual Abuse,on the behalfof: Secretary, Florida Department ofCorrections ❑ 4% I) -re-rr- I- Last SS' lEolohr4 First , Middle Initial DC Number Institntion Part A — FnmageGrlevance Grievo,o+ SeekSS ctargl KistcoifVC- rernkill V Ausu.si. a 3., 2Oaz lt° Squash res+ore 30days 94rA Iifhe pbr PciVare of ci.9eneY 4-O comply riktes -33- CC:) :303, 33- CA31-'3O4., 3 (,01-305 23-(,,,ot, (Olg),-32- 00G (.p.?),7 and aelrhirvis-iro.frve.. eke+ 1 Pre ettl‘trc F.S. Se.,, (o 0 . Repod-rn9 10!-secp I fp qt-ki (i) When qny 6bployet. or persoiN ..gupecviirr,9:intbal-es an ac4-- or has rea.socv.47, 4has-l- an 0.4 ho.s beeei corviniM-1-ed by an inn.ei-e Lovith s'' n vI 1.0-‘0A, cults ov. Proceaure3 +he_ e.mpky-ee 4-cdre -gve neCessairy 4c4,-.0n resiolv The- ac+ 0-9 Ict,kiA5, aireaiun 0.f. an o -Pacer iS nab a rul-eS oc pcoceclu.(•"X-e/2/2,6 ,-..* DATE SIGNATUREOF GRIEVANTAND D.C. # *BY SIGNATURE, INMATE AGREES TO THE FOLLOWING # OF 30-DAY EXTENSIONS: . . . . . . , . Signature This form Is used for filing a formal grieYance at.the RISTRUCRONS , .... . ‘; institution or facility level as wen isfor Florida AdmInistrathre Code. When an appeal filIng.appeals to the Office of the SecreNiy In' ismade to the Secretary, a copy of the initial response to accordancewith Rule the grlevante.must be . ittachedleircePtas stated Wow). When the inmate.feels that he may be adversely. .. . affeeted by the submlislon of a grievance at the . . 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CeS4-po- .Q, a_c_Asli.<4_,8 ai'A A-C.or‘e-, , _ FLORIDA DEPARTMENT OF CORRECTIONS 08/29/2023 0,41 DISCIPLINARY REPORT PAGE 1 t 4 HEARINS INFORMATION LOG 4 DC4: 762155 INMATE NAME: HILL, TERRY L. B3101L INFRACTION VI6LATION. CODE: 0061 TITLE: DISOBEYING ORDER DATE: 08/23/2023 FACILITY CODE: 282 NAME: TOMOKA C.I. TIME: 19.20 TEAM FINDINGS AND ACTION DATE: 08/29/2023, AT: 09.49 INMATE OFFERED STAFF ASSISTANCE: DECLINED INMATE PLEA: NOT GUILTY FINDINGS: GUILTY INMATE PRESENT: YES , POSTPONEMENT: BASIS-FOR DECISION: THE SUBJECT WAS FOUND GUILTY OF CHARGE VIOLATION F.A.C. CHAPTER 33-601.314 RULES OF PROHIBITE CONDUCT 6-1; DISOBEYING A VERBAL OR WRITTEN ORDER. BASED ON THE EYE WITNESS STATEMENT SGT.BORES "ON 08/23/2023 AT APPROXIMATELY 1920 HRS, WHILE ASSIGNED AS KILO SERGEANT AND MONITORING THE RECREATION FIELD INMATE HILL, TERRY DC# 762155 WHO WAS OUT OF D DORM WAS ON THE REC. FIELD. HE WAS SITTING AT THE CHECKERBOARD TABLE FACING ME JUST STARRING TOWARDS ME, EVERY TIME I LOOKED HIS WAY HE WAS CONTINUING TO STARE AT ME. I TOLD INMATE HILL TO TURN AND FACE THE OPPOSITE WAY. INMATE HILL REFUSED AND CONTINUED TO LOOK MY WAY. INMATE HILL WAS TOLD MULTIPLE TIMES TO LOOK AWAY. HE WOULD LOOK AWAY THEN TURN HIMSELF BACK TO LOOK MY WAY. I THEN HAD ADDITIONAL STAFF SPEAK TO INMATE HILL AND HE CONTINUED TO DISOBEY ORDERS." IT SHOULD BE NOTED THAT THE TEAM READ AND CONSIDERED ALL INVESTIGATIVE REPORTS AND WITNESS STATEMENTS. DC6-112A (DISCIPLINARY INVESTIGATIVE REPORT), DC6-151(DISPOSITION OF PHYSICAL EVIDANCE), WITNESS STATEMENTS, DISPOSITION OF VIDEOTAPE EVIDENCE. BASED UPON REVIEW OF THE IDENTIFIED TAPE OR CAPABILITIES OF THE PARTICULAR TAPING EQUIPMENT, THE TAPE REQUESTED DOES NOT PROVIDE EVIDENCE TO SUPPORT THE INMATE'S STATEMENT. APPEAL THE DECISION BY COMPLETING A DC1-303 FORM AND SUBMITTING THE FORM TO THE WARDEN. INMATE RELIEVED 30DAYS LOSS OF GAIN TIME. ACTIONS. TAKEN: LOSS. OF GAIN TIME: 30; PROBATION DAYS SET: .0 DISCIPLINARY CONFINEMENT: 0000;AC CREDIT DAYS: 000; ADJUSTED DC DAYS: 000 DC PROBATION DAYS SET: 0000i RESTITUTION: $.00; INDIV.REVIEW/COUNSEL?: N; CONFISCATE CONTRABAND?: N TEAM CHAIRMAN: EJ06 - ECHEVARRIA, J. TEAM MEMBERS: BJS33 - BRICE, J.S. PART B - RESPONSE HILL, TERRY 762155 TOMOKA C.I. B3211L NAME NUMBER FORMAL GRIEVANCE CURRENT INMATE LOCATION HOUSING LOCATION LOG NUMBER Your Request for Administrative Remedy or Appeal was received and reviewed with the following response provided: Officer Bores gave you a direct order to turn the opposite way. You refused and continued looking directly at Office Bores after you were advised multiple times to look away. When additional staff ordered you to look away you continued to disobey all orders that were given to you. You have not provided this office with any new information. Therefore, your grievance is being Denied. If you feel your grievance was not correctly resolvkl, you may obtain farther administrative review of your complaint by obtaining form DC1-303, Request for Administrative Remedy or Appeal, completing the form, providing attachments as required by paragraphs 33-103.007(3)(a) and (b), F.A.C., and forwarding your complaint to the Bureau of Policy Management and Inmate Appeals, 501 South Calhoun Street, Tallahassee, Florida 32399-2500. A. Liekweg, CLS C. Driggers, AWP/Acting Warden ce riggers SIG TUR AND TYPED OR PRINTED NAME OF SIGNATt7RE OF WARDEN, ASST. EMPLOYEE RESPONDING WARDEN, OR SECRETARY'S REPRESENTATIVE FLUXION DEPARTMENT OF CORRECTIONS RECENED+ REQUEST FOR-ADMINISTRATIVE REMEDY DR OCT 04 2023 RaCEIVE El Third Party Grievance Alleging Sexual Abuses OCT 1 0 2023 AsST.WARDEN PROGRAMS TOMOKA TO: ❑ Wardtn ❑ Assistant Warden Se,cretary, Flori4DepartmcntAgstmsctions From or IF Alleging Sexual Abuse, on the behalf of: Inmate Grievance Appeals 14;11 "Terry L 7(4.al S.5 TOMOKA C.I. Last First Middle Initial DC Number Institution Part A— Inmate Grievance - 23-G? --,?-2 l, 7 ZI 7 -efiN L. 11:11, PurSt.w4 -/-0 sec-ficw\ 232 oia (I) r/a s4a.f. (90a ) I ao heretay st-wear 4-Act.-1- 4,1,<.. -Polloczip9 complain-i- is +rite. ctna cot-rec.:l— and is rgo,d,e in good. .e.:,44, and nno.4e a rnv oun...cr-cc.. to( t, and Crorm ytyy own personal knowledge. I cx.0-1 ouerOD years of' age.. and 0-P 4goo.n.a mind (Ana. -1. cuy. comle.-Ven3r. 4 .0 YBNO.ke lthis. -moors,. cppipia.ffri; On 9/0813.0,3.3, g r f%titian+ Sou-04 4o So6uaS11 Ms6pti-tva,r\i repor+ clod. res-t-ore ios+ gain +i-r4c.- QDr a tiec.9QA y viotaAin_9 cll. n-6,0%.2)9 sec-koa c,--i ..6i, akleseaky, loolczns or r-icarctvg A-ot...3orckg 0-P-Pcce... Roves Csrievanc-C4=ta.309-Qgp -03O)..GrIevaM. atlegel -Res3,- -iboiscny or. s-learo-A3 I n an oU:c_e_t"-s airet-4-on is no4- (2% e.k. 31 ruNe_ vic,104;Dc\ At...Ny procrIt030.4-crig pu.cgo-o.r4 --i-c>telorrIp. cal,; (j sea-11,-oe 'Pro. ae.,-+ 130 F'.S." 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