Appellant James Pesci, a civil detainee at the Florida Civil Commitment Center (FCCC), is involuntarily committed pursuant to Fla. Stat. § 394.910 et seq., the “Involuntary Civil Commitment of Sexually Violent Predators Act,” commonly referred to as the “Jimmy Ryce Act.” The Act provides for involuntary civil commitment of a sex offender who is determined to be a sexually violent predator for the purposes of safeguarding the general public and rehabilitating the detainee. Pesci and some 600 other residents of the FCCC are not prisoners; rather they are civil detainees who have already served their terms of incarceration.
For some years, Pesci has published a newsletter called “Duck Soup” at the FCCC that is highly critical of the center, its policies, and its personnel. In April 2009, Timothy Budz, the facility director at the center, promulgated a policy barring all residents from copying Duck Soup in order to limit its circulation, on the rationale that Duck Soup had disrupted order and discipline at the FCCC as well as had a powerful adverse effect on the facility’s capacity to rehabilitate its civil detainees.
Pro se, Pesci filed a § 1983 civil rights action against Budz in the United States District Court for the Middle District of Florida. He claimed the policy violated his expressive freedoms under the First and Fourteenth Amendments and therefore sought both monetary and injunctive relief. In November 2010, after the litigation had begun but notably before the district court entered summary judgment for Budz, the facility director adopted a new, different, and stricter policy treating the newsletter as “contraband” and banning outright its possession or distribution.
In February 2012, the district court granted final summary judgment in favor of the facility director, but only considered Pesci’s First Amendment claim as to the April 2009 policy, offering no view about the replacement policy banning Duck Soup. Pesci timely appealed, initially pro se, but now with the assistance of appointed counsel.
After thorough review, we vacate and remand for further proceedings consistent with this opinion. In view of the peculiar posture of this case, we believe the wiser course would be for the district court to consider the constitutionality of the November 2010 policy banning Duck Soup along with the April 2009 policy.
The district court never had occasion to review the constitutionality of this more restrictive policy -- a policy that mooted out any possibility of injunctive relief based on the April 2009 policy. Moreover, the record is limited and the plaintiff was uncounseled throughout the proceedings in the district court.
Accordingly, we remand the entire matter back to the district court to engage in the necessarily fact-intensive review of the facility director’s policies in the first instance. This course will avoid piecemeal adjudication of the constitutionality of the two policies. ..continued.. by Pesci v Budz, 11th Circuit Court of Appeals (Case: No. 12-11144)
See also: Civil Detainee's Free Speech Case Revived by JACK BOUBOUSHIAN, Courthouse News
