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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JOHN MICHAEL FERENC,

Plaintiff,

v. CASE NO. 4:10cv138-RH/WCS

STACEY HAYNES et al.,

Defendants.

______________________________/

ORDER REMANDING TO MAGISTRATE JUDGE

In his first amended complaint, the plaintiff John Michael Ferenc asserts that

he was held in Florida state prison too long because the defendant officials of the

Florida Department of Corrections unconstitutionally applied an amendment to the

Florida gain-time statutes that was enacted after he committed the underlying

crime. Mr. Ferenc is proceeding in forma pauperis. The first amended complaint

thus is subject to judicial review before service of process. See 28 U.S.C.

§ 1915(e)(2)(B).

The case is before the court on the magistrate judge’s report and

recommendation, ECF No. 7, and the objections, ECF No. 8. The recommendation
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Case No: 4:10cv138-RH/WCS

is for dismissal at this stage based on res judicata and the statute of limitations. 

This order concludes that dismissal is not proper.

I

From 1983 to 2009, Mr. Ferenc served five consecutive sentences in the

Department of Corrections. See ECF No. 6-1 at 28-29 of 86. Mr. Ferenc alleges

that he was held too long on the fourth sentence. That sentence was for a crime

committed in 1977. See ECF No. 6-1 at 28 of 86. He served the sentence from

1990 until 2002. See ECF No. 6-1 at 25 of 86. He says this was longer than he

should have served and that the reason for the discrepancy was the Department’s

application of gain-time-revocation standards that were in effect prior to 1976 and

after 1983—but not in 1977 when Mr. Ferenc committed the crime. 

Prior to 1976, the Department credited basic gain time in a lump sum at the

outset of a term in custody. The Department could revoke all or part of the gain

time for various reasons including a violation of disciplinary rules. Because gain

time for the entire term was credited in a lump sum at the outset, a rules violation

at any time could result in the revocation of all the gain time. But in 1976, a new

statute was adopted under which basic gain time was not credited in a lump sum at

the outset; instead, it was credited “on a monthly basis, as earned.” Fla. Stat.

§ 944.27(1) (1977). A violation thus could result in revocation of the gain time

accrued only to the time of the violation. The Department could also punish a
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Case No: 4:10cv138-RH/WCS

defendant by revoking his right to earn gain time in the future—thus

accomplishing the same result as a revocation of all gain time under the older,

lump-sum approach—but the Department could do so only by following additional

procedures that it did not follow in Mr. Ferenc’s case. See Fla. Stat. § 944.28(3)

(1977). A further statutory change in 1983 reverted to the pre-1976 approach on

this issue. 

Mr. Ferenc’s allegation is that the Department erroneously credited all his

gain time for the 1977 crime as a lump sum when he started serving the sentence in

1990. Mr. Ferenc alleges that the Department later revoked all the gain

time—including gain time that, if properly credited monthly, would not yet have

accrued. Mr. Ferenc alleges that, had the Department properly followed the law on

this as in effect in 1977, it would have revoked only the gain time accrued to the

point of the violation, and he would later have received the post-violation gain

time, shortening his time in custody.

II

The retroactive application of gain-time-revocation standards of this kind,

resulting in a longer period in custody than would have been proper under the

standards in effect when the crime was committed, may be unconstitutional. See

Knuck v. Wainwright, 759 F.2d 856, 858-59 (11th Cir. 1985). Whether Mr.

Ferenc’s factual allegations are correct, and whether his legal theory is correct on
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1

 The Florida courts’ conclusion that Mr. Ferenc did not properly raise the

retroactivity claim was wrong. His papers were not drawn with precision, but he

asserted the retroactivity claim at each stage of the process. See ECF No. 1 at 6 of

9 (alleging in a grievance that the improper lump-sum award of basic gain time

was an ex post facto violation because it allowed “more gain-time to be declared

Case No: 4:10cv138-RH/WCS

the merits, are issues not addressed in the report and recommendation or in this

order. Nor does this order address the issues of whether qualified immunity bars

any claim for damages and whether other forms of relief are available. These are

issues that will be addressed after the defendants are served with process and

afforded an opportunity to be heard. 

III

The first issue is whether the claim should be dismissed at this stage based

on res judicata. It should not.

Mr. Ferenc filed a petition for a writ of habeas corpus in the state circuit

court raising two claims—the retroactivity claim he now raises here, and an

additional claim that the Department of Corrections made an arithmetical error in

calculating his release date. The trial court rejected the arithmetical claim—Mr.

Ferenc was simply wrong—and concluded that he had not raised the retroactivity

claim in his complaint. The First District Court of Appeal denied Mr. Ferenc’s

petition for a writ of certiorari, agreeing that the arithmetical claim was unfounded

on the merits, and explicitly saying that the decision was “without prejudice” to the

retroactivity claim.1
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forfeited during the early stages of service of the sentence”); ECF No. 6-1 at 7-8 of

86 (alleging in the state petition for a writ of habeas corpus that Mr. Ferenc “could

not have earned the amount of gain-time forfeited” and emphasizing the gain-time

statute’s monthly-accrual language); ECF No. 6-1 at 63-68 of 86 (asserting the

same theory in the petition for a writ of certiorari to the First District Court of

Appeal). That the Florida courts were wrong when they concluded Mr. Ferenc had

not properly raised the issue of course makes no difference here, because under the

Rooker-Feldman doctrine, a state-court error is not reviewable in a § 1983 action in

this court. See Rooker v. Fid. Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362

(1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L.

Ed. 2d 206 (1983).

Case No: 4:10cv138-RH/WCS

A federal court must give a Florida-court judgment the preclusive effect it

would have in a Florida court. See, e.g., Migra v. Warren City Sch. Dist. Bd. of

Educ., 465 U.S. 75, 81, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984). In Florida, res

judicata—or perhaps more precisely the part of that doctrine sometimes referred to

as claim preclusion—applies “when all four of the following conditions are

present: (1) identity of the thing sued for; (2) identity of the cause of action; (3)

identity of persons and parties to the action; and (4) identity of quality in persons

for or against whom claim is made.” Fla. Bar v. Rodriguez, 959 So. 2d 150, 158

(Fla. 2007) (quotation marks omitted). Res judicata thus bars all claims that

were—or could have been—raised and determined in a prior action. See, e.g.,

Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1235

(Fla. 2006). 

But “[t]o support a defense of res judicata, it must be clear that the court in

the previous action intended that the disposition there was to be without right to
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further proceedings by the plaintiff.” Equitable Fire & Marine Ins. Co. v.

Bradford Builder, Inc., 174 So. 2d 44, 45 (Fla. 3d DCA 1965), quoted in W. Grp.

Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1358 (11th Cir. 1999). Thus an explicit

statement reserving an issue “without prejudice” means that the res judicata

defense does not apply. See Churruca v. Miami Jai-Alai, Inc., 353 So. 2d 547, 549

(Fla. 1977) (rejecting a res judicata defense for a 1969-70 tortious conspiracy claim

when the mandate dismissing a prior 1968-69 conspiracy claim was expressly

without prejudice to a similar claim for future conduct); Tilton v. Horton, 137 So.

801, 808-09 (Fla. 1931) (holding that the dismissal of an action “without prejudice

to defendant,” who had a pending counterclaim, did not support a res judicata

defense against a later action based on the counterclaim). And as the Eleventh

Circuit recently noted, a federal court must give proper effect to a state court’s

statement on the res judicata effect of its judgment. See Brown v. R.J. Reynolds

Tobacco Co., 611 F.3d 1324, 1335-36 (11th Cir. 2010). 

Because the First District Court of Appeal did not rule on Mr. Ferenc’s

retroactivity claim, and explicitly said its ruling was “without prejudice” to that

claim, res judicata does not bar this action.

IV

The statute of limitations in a § 1983 case is the personal-injury statute of

limitations of the state where the district court sits. See, e.g., Wilson v. Garcia, 471
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U.S. 261, 268-71, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), superceded by statute

on other grounds as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 379-80, 124 S. Ct. 1836, 158 L. Ed. 2d 645 (2004). In Florida, the limitations

period is four years. See, e.g., Burton v. City of Belle Glade, 178 F.3d 1175, 1188

(11th Cir. 1999). The limit applies to an ex post facto claim. See Penoyer v.

Briggs, 206 F. App’x 962, 964 (11th Cir. 2006). But while state law governs the

limitations period for a § 1983 claim, federal law governs when a claim accrues. 

See, e.g., Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). Generally, the

statute begins to run when an inmate knows, or should know, all of the facts

necessary to pursue a claim. See, e.g., Rozar v. Mullis, 85 F.3d 556, 561-62 (11th

Cir. 1996). 

But there is an exception that applies here. Under the doctrine of Heck v.

Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), a state

prisoner cannot properly pursue a § 1983 claim that, if successful, would

necessarily call into question the validity of a conviction or resulting incarceration,

unless the conviction has been vacated. The reason for the rule is that the sole

remedy for such a claim by a prisoner is a writ of habeas corpus. The same

principle applies to a prisoner’s challenge to a gain-time revocation. See Edwards

v. Balisok, 520 U.S. 641, 648-49, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). 

A corollary of the Heck principle is that the § 1983 limitations period does
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not run while Heck precludes the prisoner from filing the claim. The Eleventh

Circuit has so held, though in a different context. In Hale v. Riggins, 154 F. App’x

782 (11th Cir. 2005), a prisoner asserted a § 1983 claim based on a disciplinary

decision that was overturned in response to his grievance. The Eleventh Circuit

held that the statute of limitations began to run on the date when the disciplinary

decision was overturned—that is, on the date when the Heck bar was lifted. Hale,

154 F. App’x at 784 n.2 (citing Kelly v. Serna, 87 F.3d 1235, 1239-40 (11th Cir.

1996)). The Heck bar was lifted for Mr. Ferenc when he was released from

custody, while for Mr. Hale it was lifted when the disciplinary decision was

overturned, but this should make no difference in determining the start date for the

statute of limitations. The essential point is that the limitations period does not run

while Heck precludes the prisoner from filing the claim. 

Mr. Ferenc filed this § 1983 action soon after his release from custody and

well within the four-year limitations period running from that date. The action thus

is not barred by the § 1983 statute of limitations.

To be sure, this ruling raises two other issues. The first is whether Heck bars

a released prisoner—not just a prisoner still in custody—from filing a § 1983

action challenging a conviction or gain-time revocation that has not been set aside. 

Supreme Court decisions can be cited on both sides of the issue. Compare, e.g.,

Heck, 512 U.S. at 490 n.10 (opinion for the Court) (stating that an action is barred
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even after the plaintiff has completed service of sentence) with Spencer v. Kemna,

523 U.S. 1, 19, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998) (Souter, J., concurring for

four justices) (stating that an action is not barred if the plaintiff cannot seek relief

from the conviction through habeas because he is not in custody), and id. at 25

(Stevens, J., dissenting) (agreeing with Justice Souter on this point). The Eleventh

Circuit has not conclusively ruled on this issue in this context, but the court has put

its foot in Justice Souter’s camp in the somewhat analogous context of extradition

proceedings. See Harden v. Pataki, 320 F.3d 1289, 1298-99 (11th Cir. 2003). The

circuits are split on the issue, with some following the majority opinion in Heck,

and others following the more recent statements of five justices in Spencer. 

Compare Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002) (reviewing Heck

and Spencer and holding that a plaintiff who was no longer incarcerated could

maintain a § 1983 action), DeWalt v. Carter, 224 F.3d 607, 616-17 (7th Cir. 2000),

and Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir. 1999) (“[W]e find that to apply

the Heck rule . . . would contravene the pronouncement of five Justices that some

federal remedy—either habeas corpus or § 1983—must be available.”), with Entzi

v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007) (saying that “dicta” in Spencer did

not override Heck), Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005) (same),

Randell v. Johnson, 227 F.3d 300 (5th Cir. 2000) (per curiam) (applying Heck to a

§ 1983 plaintiff no longer in custody), and Figueroa v. Rivera, 147 F.3d 77, 81 (1st
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2 See Brown v. Barrow, 512 F.3d 1304 (11th Cir. 2008) (applying the

AEDPA statute of limitations in a challenge to the denial of parole); McAleese v.

Brennan, 483 F.3d 206, 213 n.9 (3d Cir. 2007) (agreeing with the majority view

that the AEDPA statute of limitations applies to a habeas challenge to a prison

disciplinary decision but noting a single contrary decision). 

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Cir. 1998) (same). See also Powers v. Hamilton Cnty. Pub. Defender Comm’n,

501 F.3d 592, 603 (6th Cir. 2007) (holding Heck inapplicable when the sentence

was too short to make habeas relief practicable). No ruling will be made on this

issue in this case until the defendants have an opportunity to be heard.

The second new issue is this. If a prisoner can challenge a gain-time

revocation by a habeas petition but misses the deadline for doing so, his release

from custody ought not revive the claim. Under the Antiterrorism and Effective

Death Penalty Act of 1996, the limitations period for a federal habeas claim is one

year. The limitations period—assuming, as seems likely, that it applies at

all2

—runs from one of several dates, including the date when the judgment at issue

became final by the conclusion of direct review or the time for seeking review, the

date when the factual predicate of the claim could have been discovered by due

diligence, or the effective date of the Act. And the limitations period is tolled

while “a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending.” 28 U.S.C.

§ 2244(d)(2). This record apparently does not establish—and in any event this

order does not address—whether the habeas limitations period expired before Mr.
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Ferenc was released from custody.

V

For these reasons,

IT IS ORDERED:

This case is not dismissed on initial screening. The case is remanded to the

magistrate judge for further proceedings.

SO ORDERED on November 9, 2010.

s/Robert L. Hinkle 

United States District Judge