KEVIN OWENS, APPELLANT,
v.
MICHAEL D. CREWS, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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The court held that the circuit court's dismissal of the petitions was erroneous because a disputed issue of fact exists regarding whether the Department timely provided inmate responses to grievances.
Appellant, an inmate, sought review of prison disciplinary proceedings via petitions for writ of mandamus. The circuit court dismissed these petitions…
The full statement of facts, procedural history, and disposition for this case are member content.
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ON MOTION FOR REHEARING EN BANC
The Department of Corrections filed a Motion for Rehearing En Banc of our original opinion in this case. We deny the motion. On our own motion and for the purpose of clarification, we withdraw our previous opinion and substitute the following in its place.
Kevin Owens, Appellant, seeks review of a final order dismissing four petitions for writ of mandamus challenging the outcomes of prison disciplinary proceedings. Because the circuit court disposed of the petitions on procedural grounds, our review is by appeal. See Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000).
The circuit court dismissed Appellant’s petitions for failure to exhaust his administrative remedies by complying with the Department’s rule requiring inmates to attach responses to their formal grievances when appealing to the Secretary of the Department concerning the handling of such grievances. See Fla. Admin. Code R. 33-103.007(5)(a). This dismissal was erroneous because a disputed issue of fact exists concerning whether Department officials timely provided the responses to *800Appellant, and the court did not take competent, substantial evidence to reach its determination that the door to review in the circuit court is closed. Cf. Austin v. McDonough, 948 So.2d 970, 970 (Fla. 1st DCA 2007) (affirming a circuit court’s determination that administrative remedies were not exhausted where competent, substantial evidence supported the circuit court’s finding that the appellant did not timely place his administrative appeals into the hands of prison officials). Accordingly, we reverse and remand for the circuit court to either take evidence to resolve the disputed issue concerning Appellant’s exhaustion of administrative remedies as a prerequisite to review of the Department’s actions or to proceed to appellate review of the underlying responses from the Secretary.
REVERSED and REMANDED.
BENTON, RAY, and MAKAR, JJ., concur.
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Green v. Cottrell, 204 So. 3d 22 (Fla. 2016)…medies available .to a prisoner, - and if so, whether he exhausted them. The district courts have- reversed dismissals for failure to exhaust administrative remedies where factual questions as to such matters existed. For example, in Owens v. Crews, 131 So. 3d 799, 799-800 (Fla. 1st DCA 2013), the First District reversed a circuit court’s dismissal for failure to exhaust administrative remedies where “a disputed issue of fact exist[ed] concerning whether Department officials timely provided the responses to […
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Stephens v. Fla. Dep't of Corr., 282 So. 3d 940 (Fla. 1st DCA 2019)…g on the issue of whether Stephens received the response to his grievance appeal (it appears to have been sent to the incorrect facility). Because a disputed issue of fact exists, the dismissal of Stephens’ petition is erroneous, see Owens v. Crews, 131 So. 3d 799 (Fla. 1st DCA 2013), and we remand for an evidentiary hearing. REVERSE and REMAND for further proceedings. MAKAR, OSTERHAUS, and BILBREY, JJ., concur. _____________________________ Not final until disposition of any timel…
Authorities Cited
- Green v. Moore, 777 So. 2d 425 (Fla. 1st DCA 2000)
- Austin v. McDONOUGH, 948 So. 2d 970 (Fla. 1st DCA 2007)