FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3701

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DAVID CHARLES SUSSMAN,

Appellant,

v.

DEPARTMENT OF CORRECTIONS,

Appellee.

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On appeal from the Circuit Court for Leon County.

Charles W. Dodson, Judge.

October 18, 2018

PER CURIAM.

Appellant, David Charles Sussman, appeals the dismissal of 

his pleading titled “Petition for Writ of Mandamus; 42 U.S.C. § 

1983 Civil Rights Complaint; and F.S. 768.28 Tort Complaint,” in 

which he sought the reversal of his disciplinary report and return 

of lost gain time as to Claims 1 and 2 and $10,000 in nominal and 

compensatory damages as to Claims 3 through 7. The trial court 

dismissed the pleading without prejudice because of Appellant’s 

failure to comply with its prior Order on Indigence Status, wherein

it declined to adjudicate him indigent under section 57.085, Florida 

Statutes, and warned that he had thirty days to pay the filing fees 

or the matter would be dismissed without prejudice. 
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On appeal, Appellant argues that dismissal was improper

because section 57.085, Florida Statutes (2017), does not apply to 

his collateral criminal claims. Appellant’s argument is without 

merit because, as he recognizes, his pleading is a mixed claim 

petition, and mixed petitions are not exempt from section 57.085. 

See Schmidt v. McDonough, 951 So. 2d 797, 802-03 (Fla. 2006)

(concluding that “because the underlying mandamus petition in 

this case is a ‘mixed’ petition, containing both a gain time claim 

and a civil claim, the petition itself is subject to the prepayment 

and lien requirements of the prisoner indigency statute”); see also

Thomas v. Dep’t of Corr., 159 So. 3d 291, 292 (Fla. 1st DCA 2015) 

(finding that the appellant’s mandamus petition challenging his 

inability to earn gain time and loss of eligibility for a work release 

program was a mixed petition subject to section 57.085). 

Appellant’s second argument that the dismissal of his civil 

claims pursuant to section 57.085 violates treaties the United 

States has entered because it imposes on him an obligation to pay 

based solely on his status as a prisoner is likewise without merit. 

See Smith v. Fla. Dep’t of Corr., 974 So. 2d 1110, 1111-12 (Fla. 1st 

DCA 2007) (“The appellants question the constitutionality of 

section 57.085, and suggest that it violates their right of access to 

the courts. However, the supreme court has recognized that the 

legislature may address the prepayment of fees and costs as 

provided in section 57.085. See Jackson v. Florida Dep’t of 

Corrections, 790 So.2d 381 (Fla. 2000).”). 

Accordingly, we affirm. Appellant is cautioned that abusive, 

repetitive, malicious, or frivolous filings will result in sanctions 

such as a bar on pro se filing in this court or referral to prison 

officials for disciplinary proceedings, which may include forfeiture 

of gain time. See State v. Spencer, 751 So. 2d 47 (Fla. 1999); see 

also § 944.279(1), Fla. Stat. (2017).

AFFIRMED.

WOLF, LEWIS, and ROWE, JJ., concur.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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David Charles Sussman, pro se, Appellant.

Pamela Jo Bondi, Attorney General, Brett Coleman, Assistant 

Attorney General, Tallahassee, for Appellee.