UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-22920-CIV-ALTONAGA/Reid

NICHOLAS LINDSEY,

Plaintiff,

v.

JOSE COLON, Warden, 

Dade Correctional Institution; et al., 

Defendant.

____________________________/

ORDER

On July 9, 2020, pro se Plaintiff, Nicholas Lindsey, filed an Emergency Petition for Writ 

of Habeas Corpus under 28 U.S.C. section 2241 [ECF No. 1].1

 (See id. 1). The Court referred the

Petition to Magistrate Judge Lisette M. Reid for a report and recommendation. (See [ECF No. 2]). 

On August 17, 2020, Judge Reid filed a Report of Magistrate Judge [ECF No. 3], recommending 

the Petition “be treated as a complaint under 42 U.S.C. [section] 1983 and dismissed without 

prejudice for failure to exhaust administrative remedies.” (Report 1 (alteration added)). Plaintiff

filed objections on Sept. 22, 2020. (See Obj’s [ECF No. 6]). 

For the following reasons, the Report is adopted, and Plaintiff’s Petition is dismissed. 

I. BACKGROUND

Judge Reid succinctly summarized the allegations and Plaintiff’s claims in the Report:

Plaintiff is a state inmate housed at Dade Correctional Institution (“Dade 

CI”). He alleges that: (1) “numerous” inmates have tested positive for COVID-19 

at his prison, “several” of whom were housed in his “living Quarters”; (2) there “is 

a constant coming and going of correctional officers/staff members that [must] have 

1 “Under the ‘prison mailbox rule,’ a pro se prisoner's court filing is deemed filed on the date it is delivered 

to prison authorities for mailing.” Williams v. McNeil, 557 F.3d 1287, 1290 n.2 (11th Cir. 2009) (citations 

omitted).

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close interactions with inmates, which makes it hard for him to “safely practice 

social distancing, proper cleaning and disinfections”; (3) the prison is crowded, 

which makes social distancing impossible; (4) COVID-19 is spreading among staff 

and inmates and there is “no real or true strategy to enforce the care and control”; 

and (5) despite being 25-years old, he is “more at risk for complications due to 

Covid-19” because he “was diagnosed from birth with asthma, hypertension, and a 

heart valve defect.” 

He asserts claims for deliberate indifference to medical needs and safety 

and violation of due process. He seeks “immediate release” on home detention.

He alleges that he “has bypassed the grievance process by declaring that the

issue at hand is time sensitive.”

(Report 1–2 (quoting Pet. 3–8;2 alterations in original; footnote call number and citations 

omitted)). 

As stated, after construing the Petition as a complaint brought under 42 U.S.C. section 

1983, Judge Reid recommends the Court dismiss the Petition under the Prison Litigation Reform 

Act (“PLRA”) for failure to exhaust administrative remedies. (See generally id.). 

II. DISCUSSION

When a magistrate judge’s “disposition” has been properly objected to, district courts must 

review the disposition de novo. Fed. R. Civ. P. 72(b)(3). Because Plaintiff has objected to Judge 

Reid’s Report (see generally Objs.), the Court conducts a de novo review.

Judge Reid recommends dismissing Plaintiff’s Petition for two reasons: (1) 

notwithstanding its title, the section 2241 Petition should be construed as a section 1983 complaint, 

or as a hybrid section 1983 complaint and section 2254 petition; and (2) an affirmative defense —

failure to exhaust administrative remedies — appears on the face of the complaint, rendering 

Plaintiff’s claim for relief subject to dismissal. (See Report 3–7). Plaintiff objects, raising 

arguments the Court now addresses. (See generally Objs.). 

2 The Court relies on the pagination generated by the Case Management/Electronic Case Files system, 

which appears as a header on all filings.

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A. Plaintiff’s Pleading Should be Construed as a Section 1983 Complaint

“Federal courts must ‘look behind the label’ of an inmate’s pro se [pleading] and determine 

whether there is any framework under which his claim[s] might be cognizable.” United States v. 

Nickson, 521 F. App’x. 867, 868 (11th Cir. 2013) (alteration added; citing United States v. Jordan, 

915 F.2d 622, 624–25 (11th Cir. 1990); see also Andrews v. United States, 373 U.S. 334, 338 

(1963) (“[A]judication upon the underlying merits of claims is not hampered by reliance upon the 

titles petitioners put upon their documents.” (alteration added; quotation marks and citation 

omitted)). In this regard, “constitutional claims that merely challenge the conditions of a prisoner’s 

confinement, whether the inmate seeks monetary or injunctive relief, fall outside of th[e] core [of 

habeas corpus] and may be brought pursuant to [section] 1983 in the first instance.” Nelson v. 

Campbell, 541 U.S. 637, 643 (2004) (alterations added; citations omitted). 

Plaintiff is challenging the execution of his sentence on constitutional grounds, not the 

constitutionality or fact of his conviction or length of his sentence. (See Pet. 5).3

 If the Court were 

to treat Plaintiff’s pleading as a section 2241 petition, as Plaintiff requests (see Objs. 2), the Court 

would lack jurisdiction to consider Plaintiff’s claims — the claims fall outside the core of habeas 

corpus. See, e.g., Moore v. Colon, 20-22032-cv, 2020 WL 5868179, at *2 (S.D. Fla. July 27, 2020) 

(determining a state inmate’s request for home confinement based on claims of unsafe COVID-19 

conditions at a state correctional facility, compounded by the inmate’s asthma, were outside the 

subject matter jurisdiction of section 2241), report and recommendation adopted, 2020 WL 

5848687 (S.D. Fla. Sept. 30, 2020). 

3 Plaintiff argues he is “not seeking t[o] challenge a specific aspect of his current confinement, but the 

confinement itself.” (Objs. 3). He then contradicts himself, arguing his health is at risk because of the 

“failed policies and procedures” at Dade CI — thus challenging specific aspects of his confinement. (Id.

4). Plaintiff’s attempts to dress up his claims as something other than relating to his conditions of 

confinement are unavailing.

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Because Plaintiff’s claims are cognizable under section 1983, and Plaintiff is a pro se

inmate, the Court has an obligation to and does construe Plaintiff’s pleading as a section 1983 

complaint. See Jordan, 915 F.2d at 624 (“Federal courts have long recognized that they have an 

obligation to look behind the label of a [pleading] filed by a pro se inmate and determine whether 

the [pleading] is, in effect, cognizable under a different remedial statutory framework.” (alterations 

added; citation omitted)). 

B. Plaintiff’s Pleading Must Be Dismissed

Even construing Plaintiff’s pleading under the appropriate statutory framework, it must be 

dismissed. First, pro se plaintiffs must either pay a filing fee or submit a motion to proceed in 

forma pauperis. Compare 28 U.S.C. § 1914(a) (requiring parties instituting a civil action to pay a 

filing fee), with 28 U.S.C. § 1915(a)(1) (permitting pro se inmates to file civil actions if they are 

unable to pay filing fees).4

 Plaintiff has not paid a filing fee or submitted an in forma pauperis

motion, and thus the case must be dismissed. 

Second, the pleading fails to state a claim for which relief may be granted. Under the 

PLRA, “[a] district court may dismiss an action sua sponte . . . if an affirmative defense —

including failure to exhaust — appears on the face of the complaint.” Booth v. Allen, 758 F. App’x. 

899, 901 (11th Cir. 2019) (alterations added; citing Jones v. Bock, 549 U.S. 199, 215 (2007); 

Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011); and Alexander v. Hawk, 159 F.3d 

1321, 1328 (11th Cir. 1998)). 

4 “When a petition, motion to vacate, or complaint is submitted in forma pauperis, the 

petitioner/movant/plaintiff shall submit the form ‘Application to Proceed Without Prepayment of Fees and 

Affidavit,’ which may be obtained from the Clerk of the Court, or an affidavit which substantially follows 

the form, and shall, under oath, set forth information which establishes that he or she is unable to pay the 

fees and costs of the proceedings referenced above.” S.D. Fla. L.R. 88.2(b).

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Plaintiff admits Dade CI has a grievance process and he did not exhaust available remedies 

through that process. (See Pet. 4). Plaintiff states exhausting administrative remedies would be 

futile, because COVID-19 is “an uncontrollable infectious disease with no known cure or effective 

treatment plan[.]” (Objs. 7).5

 Even accepting this latter unsupported statement as true, this does 

not address the adequacy of the grievance process available to Plaintiff at Dade CI. Because 

Plaintiff alleges he “bypassed” his available administrative remedies, Plaintiff fails to state a claim 

for which relief may be granted, and his pleading must be dismissed.

III. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that the Report [ECF 

No. 3] is ACCEPTED in part. Plaintiff, Nicholas Lindsey’s Petition, properly construed as a 

complaint [ECF No. 1], is DISMISSED without prejudice. 

DONE AND ORDERED in Miami, Florida, this 8th day of October, 2020.

CECILIA M. ALTONAGA

UNITED STATES DISTRICT JUDGE

cc: Plaintiff, pro se

5 Plaintiff also argues the Florida Attorney General may waive the affirmative defense of exhaustion. (See

Objs. 7–8). There is no evidence the Attorney General has done so in the present case. 

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