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 IN T H E U N IT E D STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

KEVIN M. TAYLOR

Plaintiff,

vs. Case No. 5:09cv304/RS/MD

B. GORDAN, et al.,

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, proceeding pro se and in forma pauperis, has filed a civil rights

complaint pursuant to 42 U.S.C. § 1983. (Doc. 1). The initial partial filing fee has

been paid. (Doc. 20). Upon review of the complaint, the court concludes that

plaintiff has failed to present an actionable claim, and that dismissal of this case is

warranted.

Since plaintiff is proceeding in forma pauperis, the court must review his

complaint to determine if it is “(i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(B). The court must read

plaintiff’s pro se allegations in a liberal fashion. Haines v. Kerner, 404 U.S. 519, 92

S.Ct. 594, 30 L.Ed.2d 652 (1972). A complaint is frivolous under section 1915(d)

“where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490

U.S. 319, 325, 109 S.Ct. 1827, 1833, 104 L.Ed.2d 338 (1989). Dismissals on this

ground should only be ordered when the legal theories are “indisputably meritless,”

Id. at 327, 109 S.Ct. at 1833, or when the claims rely on factual allegations that are

“clearly baseless.” Denton v. Hernandez, 504 U.S. 25, 31, 112 S.Ct. 1728, 1733, 118
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L.Ed.2d 340 (1992). Dismissals for failure to state a claim are governed by the same

standard as Federal Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d

1483, 1485 (11 Cir. 1997). In determining whether the complaint states a claim upon th

which relief may be granted, the court accepts all the factual allegations in the

complaint as true and evaluates all inferences derived from those facts in the light

most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11 Cir. th

1994). The complaint may be dismissed if the facts as pleaded do not state a claim

to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

127 S.Ct. 1955, 1968-69, 1974, 167 L.Ed.2d 929 (2007) (retiring the negatively-glossed

“no set of facts” language previously used to describe the motion to dismiss

standard and determining that because plaintiffs had “not nudged their claims

across the line from conceivable to plausible, their complaint must be dismissed”

for failure to state a claim). A complaint is also subject to dismissal under Rule

12(b)(6) “when its allegations, on their face, show that an affirmative defense bars

recovery on the claim.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11 Cir. 2003); Marsh th

v. Butler County, Ala., 268 F.3d 1014, 1022 (11 Cir. 2001). th

Plaintiff is an inmate of the Florida penal system currently confined at Liberty

Correctional Institution. (Doc. 23). He was confined at Graceville Correctional

Institution at the time he filed his complaint. (Doc. 1). His complaint names six

defendants, all prison officials within the Florida Department of Corrections: B.

Gordan, John Hagans, Mark Henry, Walter McNeil, Sam Bowden and Mr. Davis. The

essence of plaintiff’s claim is that he is entitled, under Rule 33-601.105 of the Florida

Administrative Code, to the restoration of forfeited gaintime for the period October

10, 1998 to April 28, 2007, due to his having remained “clean” for one year since his

last disciplinary infraction. As relief, he seeks restoration of the forfeited gaintime.

Although plaintiff filed his complaint under 42 U.S.C. § 1983, he seeks relief

in the nature of habeas corpus – he claims he is being deprived unlawfully of

gaintime and seeks immediate, or speedier release. The Supreme Court stated in

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Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), that

“Congress has determined that habeas corpus is the appropriate remedy for state

prisoners attacking the validity of the fact or length of their confinement, and that

specific determination must override the general terms of § 1983.” Thus, when a

prisoner, though asserting jurisdiction under the Civil Rights Act, is challenging the

very fact or duration of his physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or speedier release from such

imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser, 411 U.S.

at 500, 93 S.Ct. at 1841. Regardless of the label plaintiff may place on this action, in

order to challenge the validity of his incarceration on the grounds that his

constitutional rights have been violated, he must pursue his claims through habeas

corpus. Prather v. Norman, 901 F.2d 915, 918-19 n.4 (11 Cir. 1990) (per curiam); th

McKinnis v. Mosley, 693 F.2d 1054, 1057 (11 Cir. 1982). th

In that regard, 28 U.S.C. § 2254(b) requires that before a federal court may

consider a petition for writ of habeas corpus, a state prisoner must first present to

the state courts for consideration each issue upon which the petitioner seeks review

in federal court. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982);

Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In Florida,

judicial review of agency action by the Department of Corrections involving gaintime

credits and calculation of a release date is available by petition for extraordinary

relief in the circuit court. See Williams v. Moore, 752 So.2d 574, 575 (Fla. 2000);

Harvard v. Singletary, 733 So.2d 1020, 1021-22 (Fla. 1999). Review of the circuit

court’s decision is available by petition for a writ of certiorari in the district court of

appeal. See Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla. 1998); see

also FLA.R.APP.P. 9.030(b)(2); FLA.R.APP.P. 9.100. The plaintiff here indicates that he

has not initiated any state court actions with regard to the gaintime issue raised

here. (Doc. 1, p. 4 in ECF). Therefore, this case should be dismissed without

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prejudice to plaintiff pursuing his claim in habeas corpus after exhausting his state

court remedies.

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. §

1915(e)(2)(B)(ii) for plaintiff’s failure to state a claim upon which relief can be

granted.

2. That the clerk be directed to close the file.

At Pensacola, Florida this 24 day of November, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy hereof. 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 any objections shall be served upon any 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 (11 Cir. 1988). th

Case No: 5:09cv304/RS/MD