Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KEVIN ANTHONY MOORE, 

Plaintiff,

vs. Case No.: 5:10cv38/MW/EMT

MIKE HARRIS, Unit Manager, and

WARDEN MARK HENRY of FCI Marianna,

Defendants.

_______________________________/

ORDER and REPORT AND RECOMMENDATION

In a Report and Recommendation issued January 18, 2013, this court recommended to the

district court that Defendants’ pending Motion to Dismiss be denied (see doc. 64, Defendants’ motion;

docs. 67, 74, 75, and 80, Plaintiff’s response and supplemental responses; and doc. 82, January 18,

2013, Report and Recommendation).1 Defendants filed an objection to the Report and

Recommendation (doc. 85), following which the district court remanded the case to the undersigned

to consider Defendants’ argument in the first instance (doc. 86). Upon remand, finding Defendants’

objection to be well taken, this court shall vacate the January 18, 2012, Report and Recommendation

and in its stead enter the instant Report which recommends granting Defendants’ motion to dismiss.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff Kevin Anthony Moore is a non-prisoner proceeding pro se in this action. The

complaint currently at issue is Plaintiff’s fourth amended complaint (henceforth “complaint”) and

names as Defendants Unit Manager Mike Harris and former Warden Mark Henry of Federal

Correctional Institution Marianna (“FCI Marianna”) (doc. 42). Plaintiff was formerly incarcerated

1

 The matter was referred to the undersigned magistrate judge for a Report and

Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). 
Page 2 of 11

at FCI Marianna on drug charges, and the basis for his complaint is that he was improperly required

to register as a sex offender based on a state conviction before his release from federal custody. 

Plaintiff alleges that on or about August 2, 1999, Mike Harris presented Plaintiff with a Sex

Offender Registration Form and told him that he would need to sign it before he was released from

prison (doc. 42 at 3).2 Plaintiff did not agree that he should sign the form and showed Harris a copy

of his Pre-Sentence Investigation Report (“PSR”), which reflected that the charge allegedly giving rise

to the need to register was a simple battery (id.). Harris told Plaintiff that he could not be released

until he signed the form, which Plaintiff states that he then did “under duress,” marking “I disagree”

in three places on the form (id. at 3, exhs. at 2–3).3

 After the form was signed, it was sent to thenwarden Mark Henry for his signature and distribution to state and local authorities (id. at 3). Plaintiff

asserts that Henry should have seen that Plaintiff indicated his disagreement and looked into the reason

for this rather than signing off on the form as it was presented to him (id.). Other than noting “I

disagree” on the form, Plaintiff does not indicate that he attempted to discuss this matter with anyone

other than Defendant Harris. Plaintiff was released on September 13, 1999, but it was not until 2005

when he applied for a contractor’s license that he was arrested for his failure to register as a sex

offender (id.). He states that up until that point he “was never contacted,” and thus apparently

believed that the matter had been resolved due to his written objection on the form.4

 Plaintiff

reports that he was released from arrest after local law enforcement reviewed the charges and

determined that Plaintiff’s previous charges did not warrant sex offender registration (doc. 42 at 5). 

2

 Page references are to Plaintiff’s submission as reflected in the court’s electronic docketing

system.

3

 The attachments to Plaintiff’s complaint are neither labeled nor separated into individual

“exhibits.” Therefore, to reference these attachments the court will refer to “exhs.,” meaning the

conglomeration of exhibits to the complaint, and the page number of the referenced document as

reflected in the court’s electronic docketing system. 

4

 This conclusion as to Plaintiff’s belief is supported by other court documents. As discussed

more fully infra, Plaintiff filed an objection to this court’s recommendation of dismissal of a 2008

case in which he brought similar claims. In the objection Plaintiff suggested that he assumed for

several years following his release that he was not required to register. See Moore v. Lappin,

3:08cv344/MCR/EMT, doc. 21 at 3–4. However, the court notes that in the prior case Plaintiff

identified 2003 rather than 2005 as the year he became aware that the Federal Bureau of Prisons had

indeed submitted the Sex Offender Registration Form to state law enforcement. Id.

Case No.: 5:10cv38/MW/EMT
Page 3 of 11

The Florida Department of Law Enforcement (“FDLE”), however, continued to pursue the issue (id.). 

The FDLE sent Plaintiff a form to register every six months, warning him that if he failed to comply

he would face third degree felony charges (id.). 

Plaintiff filed a petition in state court in 2005 seeking to have the registration requirement

removed, but the court determined that it had no jurisdiction to resolve the matter (doc. 42 at 5). 

Plaintiff then filed a declaratory judgment action in federal court in 2008 seeking to have the

registration requirement removed, but this case was also dismissed (see Moore v. Lappin, Case No.

3:08cv344/MCR/EMT, doc. 22). Plaintiff visited FDLE headquarters in Tallahassee in an attempt

to resolve this issue, but he was told that FDLE could not remove the registration requirement due to

the form Plaintiff had signed—under duress, he alleges—in August of 1999 (doc. 42 at 4–5). 

Plaintiff’s name was on the sex offender website and visible to family, friends and acquaintances for

years, including five years as a fugitive who had not registered and five years as a registered offender

(id. at 5). It was not until 2010, when Plaintiff contacted the office of the United States Attorney in

Pensacola, Florida, that Assistant United States Attorney (“AUSA”) Nancy Hess called the FDLE and

spoke to Alan Moses, an analyst, that Plaintiff was finally removed from the website (id.). 

In his statement of claims, Plaintiff contends that Harris and Henry had no legal authority to

require him to sign the form or report this information to law enforcement based on his misdemeanor

battery conviction (doc. 42 at 6). He also asserts that the fact that he was required to register as a sex

offender from 1999 through 2010 violated his rights under the Due Process Clause (id. at 8). He seeks

punitive and compensatory damages in the amount of $12,000,000.00, to compensate him for

defamation of character and loss of enjoyment of life due to the torment he suffered after having been

improperly required to register as a sex offender (id.).

Plaintiff has appended numerous documents to his complaint, which are pertinent to the

undersigned’s recommendation and thus are summarized as follows. First is the first page of a Sex

Offender Release Notification form dated August 9, 1999, addressed to State and Local Law

Enforcement Officials and to the State Sex Offender Registration Official which, among other things,

describes the battery that purportedly gave rise to the requirement that Plaintiff register as a sex

offender (doc. 42, exhs. at 1).5

 Also included is the Sex Offender Registration and Treatment

5

 It is not clear whether there are additional pages to the form that have not been included.

Case No.: 5:10cv38/MW/EMT
Page 4 of 11

Notification that Plaintiff signed with the notation “I disagree” in three places on August 2, 1999 (id.

at 2–3). Plaintiff has also attached a document listing standard conditions of supervision for federal

offenders, signed by Warden Mark Henry (id. at 4). 

As evidence of his attempt to resolve this matter as long ago as 2004, Plaintiff submitted a

copy of a memo from the Clerk of Circuit Court for Escambia County, Florida, dated April 1, 2004,

confirming that the charges of felony sexual battery in case 1990-CF-002433-A had been reduced to

misdemeanor battery (id. at 5). The docket sheet in this state case is also appended, and it reflects

that Plaintiff pleaded nolo contendere to simple battery on September 10, 1990 (id. at 6–7). The same

docket sheet also reflects that on August 15, 2005, Plaintiff filed a pro se request for an order, in

which he sought a court order directing that he be removed from the FDLE Sex Offender website and

released from the requirement that he be classified as a sex offender, a copy of which is also attached

(id. at 7, 8–9). Additionally, Plaintiff submitted a copy of the “State’s Response to Court’s Order to

Show Cause,” in which the state denied that it had ever requested that Plaintiff be required to register

as a sex offender, and maintained that since this request had come from the federal government, it,

rather than the state, would be the proper respondent (id. at 10–11). The state also noted that even if

it had made such a request, the FDLE rather than the State’s Attorney’s office would be the proper

respondent, as it is the FDLE that has ultimate control over who is listed on the sex offender registry

(id.). The state court denied Plaintiff’s request for an order on November 14, 2005 (id. at 12). 

Also appended to the current complaint is a copy of the “Complaint for Declaratory Judgment”

that Plaintiff filed in this court in 2008 (doc. 42, exhs. at 14–16). In that case, Moore v. Lappin, Case

No. 3:08cv344/MCR/EMT (henceforth “Lappin”), Plaintiff asked this court to find that the Federal

Bureau of Prisons (“BOP”) had no legal authority to notify the State of Florida that Plaintiff should

register as a sex offender (id.). In October of 2008, pursuant to court order, Plaintiff filed an

amended complaint against Harley G. Lappin, Director of the BOP, based on essentially the same facts

as are alleged in this case (see Lappin, doc. 10). He asserted two claims: (1) that the BOP had no

legal authority to notify the State of Florida that he was required to register as a sex offender based

on his 1990 conviction for misdemeanor battery; and (2) that the BOP’s actions in causing him to

register as a sex offender violated, and continued to violate, his rights to due process under the Fifth

Amendment (id. at 4). Plaintiff sought no damages and merely asked for an order requiring the BOP

to notify the appropriate officials in the State of Florida that he did not have to register as a sex

Case No.: 5:10cv38/MW/EMT
Page 5 of 11

offender and that he should never have had to so register (id.). The only attachments to the Lappin

complaint were the one-page memo, dated August 9, 1999, from the BOP to State and Local Law

enforcement officials notifying them of Plaintiff’s purported registration requirement and the list of

the standard conditions of supervision for federal offenders signed by Warden Henry, both of which

are also attached to the complaint in the case at bar (id. at 5–6). Plaintiff did not attach a copy of the

form he signed or any documentation relating to the underlying conviction.

In September of 2009, this court issued a recommendation that the Lappin complaint be

dismissed prior to service (see Lappin, doc. 18). The court construed Plaintiff’s complaint as

encompassing both a constitutional claim under Bivens,

6

 and a claim pursuant to the Administrative

Procedures Act (“APA”). It determined that Plaintiff’s Bivens claim was untimely, and therefore

frivolous, declining to find that the doctrine of either equitable tolling or continuing violation applied

(id. at 4–6). A similar analysis was applied to Plaintiff’s APA claim, with the court again concluding

that there was nothing “apparent from the face of the amended complaint” to suggest that the

extraordinary remedy of equitable tolling or the continuing violation doctrine would apply (id. at

6–7).7 

Plaintiff filed an objection to the court’s recommendation in Lappin. He argued that: (1) he

had filed his complaint within the statute of limitations period; (2) equitable tolling should apply

because he had not learned that the BOP actually submitted the form to state and local law enforcement

for several years, and until then he had believed the matter was resolved; and (3) the continuing

violation doctrine should apply because each time Plaintiff was required to re-register, the injury

continued (Lappin, doc. 21 at 3–5). The district court adopted this court’s recommendation without

further discussion of Plaintiff’s objection (Lappin, doc. 22). Plaintiff appealed, but he later

abandoned his appeal, and it was dismissed in April of 2010 for want of prosecution (see Lappin,

docs. 24, 37). 

6 Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

7

 The court noted in its recommendation that the only impetus for Plaintiff’s bringing the action

at that time appeared to be his discovery of two lower court cases from other districts that would have

supported his position (Lappin, doc. 18 at 6 n.9). It is clear from the record in this case that Plaintiff

continued his efforts to have the registration requirement rescinded even after the dismissal of Lappin.

Case No.: 5:10cv38/MW/EMT
Page 6 of 11

Also included with Plaintiff’s complaint in the instant case is a copy of the judgment in

Plaintiff’s federal criminal case, a printout of his profile on the Sex Offender Registry, and a copy of

a letter Plaintiff wrote “to whom it may concern” about the situation (id. at 17–20). Finally, there is

a letter dated January 25, 2010, from Alan Moses, Government Analyst, Florida Offender Registration

and Tracking Services (id. at 21). Mr. Moses states in this letter, a copy of which was sent to AUSA

Nancy Hess, that the FDLE had determined that Plaintiff “no longer meet[s] the requirement to register

in Florida as a sexual offender” and as such FDLE had removed him from the Sexual Offender Internet

Registry Site (id.). Moses further states that the FDLE had initially required Plaintiff to register based

on the BOP’s Sexual Offender Registration and Treatment Notification form that Plaintiff signed on

August 2, 1999 (id.). However, pursuant to the passage of the Adam Walsh Act8 and further

clarification with the BOP, the FDLE determined that Plaintiff did not meet Florida’s requirements

for registration (id.). 

In their motion to dismiss, Defendants assert that, given the court’s prior determination in

Lappin, Plaintiff is collaterally estopped from bringing this claim. Alternatively, they argue that even

if collateral estoppel does not apply, the statute of limitations still precludes this case because the

initial “injury” dates back to events that occurred in conjunction with Plaintiff’s release from FCI

Marianna in 1999. Finally, Defendants assert that there is no basis for the application of equitable

tolling. In its January 18, 2013, Report and Recommendation, this court rejected Defendants’

contentions that the doctrine of collateral estoppel barred Plaintiff’s claim for damages. The court

also rejected Defendants’ argument that Plaintiff’s claim was time-barred. Stating that any claim for

damages filed before Plaintiff was removed from the sexual offender registry in 2010 was arguably

premature, the court relied on Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383

(1994), to conclude that Plaintiff’s claim for damages did not accrue until 2010 and thus his complaint

filed in February 2010 was timely. The court therefore recommended that Defendants’ motion to

dismiss be denied (doc. 82). Objecting to this recommendation, Defendants contend that the rule

announced in Heck does not apply to extend the accrual date of Plaintiff’s claim for damages and thus

8

 The Adam Walsh Child Protection and Safety Act, or the Adam Walsh Act, codified at 42

U.S.C. § 16901 et seq., establishes a comprehensive national system for the registration of sex

offenders and offenders against children.

Case No.: 5:10cv38/MW/EMT
Page 7 of 11

their motion to dismiss Plaintiff’s instant complaint should be granted because the claim is timebarred. 

ANALYSIS

 Title 18 U.S.C. § 4042(c) requires the BOP to notify state and local authorities of a person’s

release if the individual was convicted of certain crimes, including sexual offenses. In addition to the

notification requirement, the statute requires the designated sex offender to register in the place in

which he will reside. 18 U.S.C. § 4042(c)(2)–(3). The statute further provides that, “The United

States and its agencies, officers, and employees shall be immune from liability based on good faith

conduct in carrying out this subsection.” 18 U.S.C. § 4042(c)(5). 

The Congressional purpose of this statute was to supplement the states’ own sex offender

registries with persons convicted of federal sex offenses. See Fox v. Lappin, 409 F. Supp. 2d 79, 85,

86 (D. Mass. 2006). The BOP, however, cannot designate a federal prisoner as a sex offender under

§ 4042(c) based on a state sex offense. Fox, 409 F. Supp. 2d at 86; Simmons v. Nash, 361 F. Supp.

2d 452 (D. N.J. 2005). And, while the BOP is free to notify the state as to a released inmate’s prior

sex offenses, the BOP cannot require the inmate to register as a sex offender with a particular state. 

Fox, 409 F. Supp. 2d at 87. In both Fox and Simmons, the petitioners were current inmates

challenging their classifications as a sex offender. Both petitioners prevailed on their claims, and

declaratory judgments were entered in their favor.

Collateral Estoppel

Collateral estoppel, or issue preclusion, protects litigants form the burden of relitigating an

identical issue with the same party and serves to promote judicial economy by preventing needless

litigation. CSX Transp. Inc. v. Bhd. of Maint. of Way Emps., 327 F.3d 1309, 1317 (11th Cir. 2003);

see also Miller’s Ale House, Inc. v. Boynton Carolina Ale House, LLC, ___ F.3d ___, No. 10-15140,

2012 WL 6629202 (11th Cir. Dec. 20, 2012) (citing CSX). Collateral estoppel applies where the

following four prerequisites are met: (1) the issue at stake must be identical to the one involved in the

prior litigation; (2) the issue was actually litigated in the prior suit; (3) the determination of the issue

in the prior litigation was a critical and necessary part of the judgment in that action; and (4) the party

against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue in the

earlier proceeding. CSX Transp., 327 F.3d at 1317; Miller’s Ale House, 2012 WL 6629202, at *4. 

Case No.: 5:10cv38/MW/EMT
Page 8 of 11

With respect to the first prong, Defendants argue that the issue is “whether the statute of

limitations applies to bar the Plaintiff’s present lawsuit” (doc. 64 at 6). This does not go far enough

in describing the issue now at stake. In Lappin—a case that was dismissed prior to service, pursuant

to 28 U.S.C. § 1915(e)(2)(B) and due to lack of subject matter jurisdiction—the court was presented

with the question of whether Plaintiff’s request for declaratory relief aimed at the Director of the BOP

was barred by the statute of limitations. In the case at bar, the issue is whether Plaintiff’s request for

monetary damages against two individual BOP employees is similarly barred. Having framed the

issue in this way, the court concludes that the doctrine of collateral estoppel does not apply. See CSX,

327 F.3d at 1318 (court stated that it “need not further track the preclusion requirements” after

concluding that the facts in the two cases it was considering were materially different).

Statute of Limitations

To recapitulate, the initial source of Plaintiff’s injury was Defendant Harris informing Plaintiff

that his release would be delayed if he did not sign the Sex Offender Treatment and Registration Form

in August of 1999, and Defendant Henry’s approval of the form despite Plaintiff’s noted “objection.” 

If the BOP had not notified law enforcement of Plaintiff’s release or of the alleged registration

requirement (as Plaintiff apparently believed for some time was the case, despite his signature on the

form), no injury would have occurred. Plaintiff did not learn until 2005, according to the allegations

in the complaint in this case, that he was required to register as a sex offender. From 2005 through

2010, he made efforts to have this requirement removed, contacting attorneys for advice and submitting

pleadings in both state and federal court (see doc. 42; Lappin, doc. 21). Finally, in January of 2010

he contacted the United States Attorney’s office. AUSA Nancy Hess contacted Alan Moses who

authored the letter dated January 25, 2010, indicating that the sexual offender registration requirement

had been removed. Therefore it was not until 2010 that Plaintiff’s position was “vindicated.” The

question thus remaining is when Plaintiff’s cause of action for damages accrued.

In its previous Report and Recommendation, the court noted that in Heck, supra, the Supreme

Court held that an action under section 1983 that by its nature challenges the lawfulness of a conviction

or sentence is not cognizable unless and until the sentence or conviction is “reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal authorized to make such

determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28

U.S.C. § 2254.” Id. at 486–87. Such actions would include those in which the plaintiff seeks damages

Case No.: 5:10cv38/MW/EMT
Page 9 of 11

directly attributable to his conviction or confinement, the plaintiff must negate an element of the

offense of which he has been convicted in order to prevail, or the plaintiff contends that the statute

under which he was convicted is unconstitutional. Id.; Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.

2003); cf. Porter v. White, 438 F.3d 1294 (11th Cir. 2007) (plaintiff brought § 1983 action after

criminal conviction was overturned due to Brady violation). Absent such an invalidation, the section

1983 suit must be dismissed. Heck, 512 U.S. at 486–87; see also Harden v. Pataki, 320 F.3d 1289,

1295 (11th Cir. 2003); Hughes, 350 F.3d at 1160. 

In its prior Report and Recommendation this court extrapolated from Heck, applying it to the

case at bar to conclude that Plaintiff’s claim for damages accrued in 2010 and thus was timely filed. 

Upon reconsideration and review, and with the benefit of Defendants’ objection, however, the court

concludes that such an extension of Heck goes too far. As noted above, for Heck to be at issue the

claim must imply the invalidity of an underlying conviction or sentence. In the unpublished case

Eubank v. Leslie, 210 F. App’x 837, 841 (11th Cir. 2006), the Eleventh Circuit explained that Heck

“held that a cause of action for such damages accrues only when ‘the conviction or sentence has

already been invalidated,’ as by a reversal on direct appeal or a federal court’s grant of a writ of

habeas corpus. Id. On the other hand, where the suit will not demonstrate that an outstanding criminal

judgment against the plaintiff is invalid, normal rules apply and the suit is allowed to proceed.” 

Eubank, 210 F. App’x at 841. Here, as is clear from the court’s prior and instant Reports, Plaintiff’s

claim that he was injured by Defendants’ allegedly improper requirement that he register as a sexual

offender implicates no underlying sentence or conviction. Accordingly, because Plaintiff’s suit in this

case will not demonstrate the invalidity of an outstanding criminal conviction, this case is not

governed by Heck and should proceed under normal rules, including the rules involving the accrual

of claims.9

 See, generally, Spencer v. Kemna, 523 U.S. 1, 118 S. Ct. 978, 988, 140 L. Ed. 2d 43

(1998) (explaining that not every civil action by former prisoner for damages tied in some way to his

incarceration involves Heck’s application); Morrow v. Federal Bureau of Prisons, 610 F.3d 1271,

1272 (11th Cir. 2010) (allowing case to proceed because the rule in Heck did not extend to case

9

 Moreover, as noted by the district court in its order of remand, the Eleventh Circuit has

suggested that “the primary purpose of the sexual offender registration requirements is civil and

regulatory, as opposed to penal, in nature.” (doc. 86 at 3, citing United States v. W.B.H., 664 F.3d

848, 853 (11th Cir. 2011)). 

Case No.: 5:10cv38/MW/EMT
Page 10 of 11

where Plaintiff was not in custody and where Plaintiff’s action, even if decided in his favor, would

not imply the invalidity of his conviction or of the sentence imposed by his conviction). Because Heck

does not apply here it cannot be used to extend the accrual date of Plaintiff’s claim for damages to

2010. Rather, Plaintiff’s claim should be deemed to have accrued in August 1999, when Plaintiff was

required to sign the Sex Offender Registration and Treatment Notification, which he did under protest;

it was at that time that Plaintiff knew that he had been injured and he knew that Defendants had caused

his injury. Plaintiff’s claim for damages in this action therefore should be time-barred, as the court

similarly concluded in Lappin with respect to Plaintiff’s claim for declaratory relief.

 Moreover, equitable tolling should not apply here. “The doctrine of equitable tolling abates

the harsh operation of the statute of limitations under certain circumstances in which barring a

plaintiff’s potentially meritorious action would be unjust.” Justice v. United States, 6 F.3d 1474, 1475

(11th Cir. 1993). It “is an extraordinary remedy which should be extended only sparingly,” and before

a court may equitably toll a limitations period, the plaintiff must establish that tolling is warranted. 

Id. at 1479. As Defendants acknowledge, the apparent mistake about Plaintiff’s status is regrettable

and unfortunate, indeed highly so. Nevertheless, the record reflects that Plaintiff waited approximately

six years—or until 2005—to seek redress from the courts for an injury of which he had been aware

since 1999. Nothing prevented Plaintiff from acting sooner, yet he did not. Under these

circumstances, the extraordinary remedy of equitably tolling the limitations period should not be

applied. See Justice, 6 F.3d at 1475, 1479. 

In summary, this court concludes that Plaintiff’s claim for damages in the instant case is timebarred. The court therefore recommends that Defendants’ motion to dismiss be granted.

Accordingly, it is ORDERED that:

The Report and Recommendation dated January 18, 2013 (doc. 82) is VACATED.

And it is respectfully RECOMMENDED that:

1. Defendants’ Motion to Dismiss (doc. 64) be GRANTED.

2. Judgment be entered in Defendants’ favor and this case be closed. 

Case No.: 5:10cv38/MW/EMT
Page 11 of 11

At Pensacola, Florida this 1st day of March 2013.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen (14) days after being served a copy thereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

objections shall be served upon all other parties. Failure to object may limit the scope of

appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case No.: 5:10cv38/MW/EMT