Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ROBERT L. DAVIS,

Plaintiff,

vs. Case No. 4:10cv150-MP/WCS

WALTER A. McNEIL, et al.,

Defendants.

 /

REPORT AND RECOMMENDATION

Plaintiff, an inmate proceeding pro se, filed an in forma pauperis motion, doc. 2,

and a civil rights complaint under 42 U.S.C. § 1983. Doc. 1. The Prison Litigation

Reform Act of 1995 (PLRA), which was enacted on April 26, 1996, provides that a

prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915:

if the prisoner has, on 3 or more occasions, while incarcerated or detained

in any facility, brought an action or appeal in a court of the United States

that was dismissed on the grounds that it is frivolous, malicious, or fails to

state a claim upon which relief may be granted, unless the prisoner is

under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). 
Page 2 of 4

Plaintiff has had three or more prior prisoner actions dismissed in the Middle

District of Florida on the grounds that they were frivolous, malicious, or failed to state a

claim. The dismissed cases include case number 99-1048, dismissed on May 23, 1999,

for failing to state a claim as Plaintiff's claims were barred by Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). On January 29, 1996,

Plaintiff had case number 8:95cv661 dismissed for failure to state a claim and lack of

subject matter jurisdiction. Plaintiff appealed that dismissal and the Eleventh Circuit

dismissed his appeal as frivolous. Thus, pursuant to § 1915(g), Plaintiff is barred from

being granted in forma pauperis unless he is in danger of serious physical injury.

The complaint has been reviewed to determine whether Plaintiff can be permitted

to proceed as permitted under 28 U.S.C. § 1915(g). Plaintiff's allegations assert that

Plaintiff received a disciplinary report for violating a Department of Corrections' rule,

which is unidentified in the allegations, and for which Plaintiff was found guilty, lost gain

time, and was held in disciplinary confinement. Doc. 1. Plaintiff contends he did not

violate the rule and also asserts that Defendant Walter McNeil failed to remedy

Plaintiff's situation when it was brought to his attention through a grievance. Id. Plaintiff

also alleges that Defendant Bill McCollum, Florida Attorney General, was notified in

April of 2007 that FLA. STAT. § 57.0851

 was unconstitutional, but Plaintiff alleges he

failed to "remedy the violation" and condoned the statute.2

 Doc. 1, pp. 7-8. As relief,

1

 The statute cited by Plaintiff concerns the deferral of prepayment of court costs

and fees for indigent prisoners

2

 Plaintiff claims Defendant McCollum "allowed Plaintiff to be burdened, detering

Plaintiff's access to the courts with a filing fee . . . ." Doc. 1, p. 8. 

Case No. 4:10cv150-MP/WCS
Page 3 of 4

Plaintiff wants the disciplinary report "terminated," and to have $700 returned to him for

the filing fees, and reimbursement of all litigation costs. Id., at 9. 

Plaintiff's claims do not bring him within the "imminent danger of serious physical

injury" exception. Therefore, Plaintiff must pay the entire filing fee should he desire to

refile his claim. Should Plaintiff decide to do so, the following is provided. 

Plaintiff cannot proceed with his claim concerning the disciplinary report issued

by Defendant Hasty, and the failure to overturn the disciplinary report by Defendant

McNeil. A claim for damages that is related to a sentence or conviction that has not yet

been reversed or invalidated is not cognizable under 42 U.S.C. § 1983. Heck v.

Humphrey, supra. To recover damages for an allegedly unconstitutional conviction or

imprisonment, a plaintiff must prove that the conviction or sentence has been reversed

on appeal, expunged by an executive order, declared invalid by a state tribunal, or

called into question by a federal court's issuance of a writ of habeas corpus. Id. Until a

plaintiff's conviction or sentence has been overturned, a claim under § 1983 has not yet

arisen. Id.

Heck has been extended and made explicitly applicable in the prison disciplinary

setting. Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). 

In Edwards v. Balisok, the Supreme Court held that a "conviction" includes a finding of

guilty in a prison disciplinary proceeding that results in a loss of gaintime, thus, affecting

an inmate's period of incarceration. 117 S. Ct. at 1589. Therefore, based on Heck, the

Court concluded that a claim for money damages resulting from defects in a prison

disciplinary hearing which resulted in the loss of gaintime credits is not cognizable under

§ 1983. Plaintiff’s claims here, if proven, would "necessarily imply the invalidity" of his

Case No. 4:10cv150-MP/WCS
Page 4 of 4

term of imprisonment and, thus, are not cognizable under § 1983. Balisok, 520 U.S.

641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). Therefore, Plaintiff must delete his

claims against Defendants Hasty and McNeil.

Plaintiff's allegations do not bring him within the "imminent danger" exception. 

Therefore, because Plaintiff has had at least three prior dismissals and is not under

imminent danger of serious physical injury, his request to proceed in forma pauperis

should be denied and this action should be dismissed. The dismissal should be without

prejudice to him making the same allegations in a complaint for which he pays the full

$350.00 filing fee at the time of filing the complaint.

In light of the foregoing, it is respectfully RECOMMENDED that Plaintiff’s motion

to proceed in forma pauperis, doc. 2, be DENIED pursuant to 28 U.S.C. § 1915(g), and

Plaintiff’s complaint, doc. 1, be DISMISSED without prejudice, and the order adopting

this report and recommendation direct the Clerk of Court to note on the docket that this

cause was dismissed pursuant to 28 U.S.C. § 1915(g).

IN CHAMBERS at Tallahassee, Florida, on May 4, 2010.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:10cv150-MP/WCS