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Florida Prisons and Jails Retaliate Against Prisoners Who File Lawsuits by Countersuing for Costs of Incarceration

by Dale Chappell

When 48-year-old Michelle Tierney died of an infected wound on her leg while in the custody of the Florida Department of Corrections (FDOC) in October 2014, her family filed a wrongful death suit against the FDOC and its for-profit medical provider, Corizon Health, claiming that proper care could have prevented her death. 

“Apparently, she had cysts everywhere on her body, pneumonia, and septic shock,” said her son, Ryan Tierney. “I don’t know how many competent medical professionals would have let that go.”

However, to the family’s surprise, prison officials filed a countersuit for the full cost of Tierney’s incarceration. See: Tierney v. Jones, 2018 U.S. Dist. LEXIS 151064 (N.D. Fla. July 26, 2018).

Unfortunately, this happens on a fairly regular basis: Florida prisons and jails routinely countersue prisoners who file lawsuits. Such scare tactics are intended to deter prisoners (and their families) from suing the state, and to provide a way for the state to recover any damage award it might have to pay if it loses in court. And the law is on the state’s side.

Under Florida Statutes § 960.297, the state or local authority may file a counterclaim to seek recovery of the cost of a prisoner’s incarceration. Pursuant to § 960.293, the FDOC and any local jail may sue for $50 per day of incarceration, or a flat fee of $250,000 if the prisoner received a capital or life sentence. 

Notably, the cost recovery is for the entire sentence, day for day, even though most Florida prisoners don’t serve 100 percent of their sentences. The statute provides a civil (not criminal) remedy that allows the state to file a lien against any property owned by the prisoner and suspends their driver’s license until the costs are paid.

Those costs add up quickly, and become a burden on prisoners’ ability to transition back into the community following their release. Consider that a 10-year sentence would cost a prisoner at least $182,500 if he or she filed a lawsuit and the state countersued. If the state does file a countersuit, it’s usually an automatic win even if the prisoner’s case is dismissed or loses at trial.

Florida lawmakers purposely wrote the law this way to deter prisoner lawsuits. In the legislative history of § 960.297, legislators expressly stated that the law’s purpose was to “deter frivolous filings by inmates” and “result in increased collection of [incarceration] costs.” See: Smith v. Fla. Dep’t of Corr., 27 So.3d 124 (1st DCA 2010).  

Is this constitutional? Courts point to a Florida Supreme Court decision saying that it is. But that decision, Ilkanic v. City of Ft. Lauderdale, 705 So.2d 1371 (Fla. 1998), held only that “the statute is constitutional insofar as it relates to (1) the imposition of per diem charges against convicted prisoners as reimbursement for the costs of incarceration and (2) the lien created as a result of the order imposing such charges.” Another state Supreme Court ruling held the law did not violate the ex post facto clause or due process protections. See: Goad v. Florida Department of Corrections, 845 So.2d 880 (Fla. 2003). [See: PLN, June 2004, p.13].

Other states have similar statutes that allow counterclaims against prisoners. In Missouri, under the Incarceration Reimbursement Act, the state can require a prisoner to pay for the cost of his incarceration and the prison system can withhold 90 percent of any deposits made into the prisoner’s account.

In Connecticut, the state can require a prisoner to pay for his incarceration plus the costs of convicting him and any other debts he might owe the state (such as unpaid child support). For example, when a federal jury awarded prisoner Rashid Williams $650,000 (later reduced by the court to $300,000) in 2016 for violation of his civil rights, the state seized the award to pay his incarceration costs plus the expenses to prosecute him.

Williams fought back with help from the federal district court, which held that allowing the state to keep its own money to pay for Williams’ incarceration would dilute the “deterrent and compensatory force” of the federal civil rights statute, 42 U.S.C. § 1983, and risked “discouraging its use by inmates, who may conclude that, even if they win, they will walk away with little and the wrongdoer face no financial consequences.” The district court further wrote that such a practice would tell prison guards that “the state will indemnify them for malicious civil rights violations and then utilize cost recovery statutes ... to recoup the judgment.”

While the federal court could not order state officials to pay the damages award due to Eleventh Amendment immunity, it did grant declaratory relief and prohibit the state from indemnifying the prison employee who had violated Williams’ rights. See: Williams v. Murphy, 2018 U.S. Dist. LEXIS 72833 (D. Conn. Mar. 29, 2018). [PLN, July 2018, p.48].

Unfortunately, few if any federal courts in Florida have taken such an approach with respect to the FDOC’s countersuits against prisoners who file lawsuits. More exposure of the state’s retaliatory practice of countersuing under § 960.297 to deter prisoner litigation is needed to ensure that Florida prisoners have unfettered access to the courts when their rights are violated. 

Related legal case

Williams v. Murphy