BROWN v. FLORIDA DEPARTMENT OF CORRECTIONS (2021)

Donald A. Brown seeks review of the trial court's dismissal of his complaint for a writ of mandamus. In that complaint, Brown challenged the results of disciplinary proceedings conducted by the Florida Department of Corrections regarding both his open masturbation in front of and directed at a corrections officer (sometimes referred to as “gunning” in prison argot), and his subsequent effort to justify that conduct with his expression of romantic interest in the officer. Brown made no effort to present evidence to refute the allegations in those proceedings, and he was disciplined for his conduct. He filed various grievances that argued technicalities about the disciplinary process. Several times, he attempted administrative appeals, but they were returned without action based on Brown's repeated failures to follow procedural rules. He does not appear to ever have perfected an administrative appeal before filing his mandamus complaint.

The trial court dismissed Brown's complaint because he failed to plead and demonstrate that he exhausted his administrative remedies. Brown filed this certiorari petition, ostensibly seeking second-tier appellate review. See Sheley v. Florida Parole Comm'n, 720 So. 2d 216, 218 (Fla. 1998) (holding that an inmate “is not entitled to a second plenary appeal of [an administrative] order in the district court” after he “has had a full review on the merits” in the circuit court, and that inmate then could only obtain review under the more limited certiorari standard).

Because the trial court did not dispose of Brown's complaint on the merits of his underlying allegations, Brown is entitled to plenary appellate review. See Green v. Moore, 777 So. 2d 425, 426 (Fla. 1st DCA 2000). We in turn treat Brown's petition as seeking such review. See id.; Fla. R. App. P. 9.040(c). Even so, the legal arguments that Brown sets out in his petition fail to demonstrate a preliminary basis for reversal of the trial court's dismissal, and we summarily affirm the order on review. See Fla. R. App. P. 9.315(a).

Affirmed.

Per Curiam.

B.L. Thomas and Tanenbaum, JJ., concur; Kelsey, J., dissents without opinion.