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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ISAAC L. PETERSON,

Plaintiff,

vs. Case No. 4:10cv332-MP/WCS

MICHAEL R. McCOY,

Defendant.

 /

REPORT AND RECOMMENDATION

Defendants filed a motion to dismiss, doc. 22, asserting that Plaintiff had incurred

three strikes under 28 U.S.C. § 1915(g), and was not entitled to in forma pauperis status

in this case. I entered an order directing Plaintiff to respond by February 4, 2011, doc.

24, and Plaintiff objected, arguing that Defendants' motion was belated because they

should have responded to the complaint by December 31, 2010. Doc. 27, citing doc.

20. I clarified in my last order that Plaintiff's argument as to the timeliness of the motion

was incorrect, there was no prejudice in a one day delay, and the issue raised by

Defendants was appropriate and could have been raised by the Court sua sponte. Doc.

28. Plaintiff has now filed a response, doc. 29, and the motion to dismiss is ready for

ruling.
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Motion to Dismiss, doc. 22

When Plaintiff commenced this case on August 4, 2010, doc. 1, he was

incarcerated in the Florida Department of Corrections and requested leave to proceed in

forma pauperis. Doc. 2. The motion was granted on August 25, 2010. Doc. 4. 

Defendants have shown that Plaintiff has three cases dismissed for reasons

under § 1915(g) which precluded Plaintiff being granted in forma pauperis status. Doc.

22, p. 2. Plaintiff had a case dismissed in this Court as barred by Heck v. Humphrey,

case 3:09cv177. Another case Plaintiff filed in the Middle District of Florida was

dismissed for the same reason, case 3:09cv1186, and another case in that court was

dismissed for failure to exhaust state court remedies, case 3:10cv530. Id., at 2. Thus,

Defendants submit that Plaintiff has three strikes under § 1915(g) and was not entitled

to proceed without full payment of the filing fee at the time this case was initiated. Id. 

Furthermore, Defendants contend that this case should also be dismissed for

Plaintiff's lack of candor and honesty in listing his prior cases on the civil rights

complaint form. Plaintiff failed to disclose at least four cases he filed, three of which

were mentioned above, and the other case was 5:08cv24, filed in this Court and

dismissed pursuant to Plaintiff's motion to withdraw his complaint. Id., at 6-7. 

Plaintiff's Response, doc. 29

Plaintiff acknowledges having filed three prior cases. Id., at 2. He states that

case 3:09cv177 and 3:09cv1186 were civil rights cases and that each were dismissed

without prejudice and was not a strike. Plaintiff states that the third case he filed,

3:10cv530 was a habeas case filed under 28 U.S.C. § 2254. Id. Plaintiff states he "has

not incurred any qualifying dismissals of his cases under the three strike provision" of §

Case No. 4:10cv332-MP/WCS
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1915(g). Id. Plaintiff further states that he "mistakingly" completed the complaint and

amended complaint and his "unintentional error was not an attempt to lie or to mislead

the Court . . . ." Id., at 3. 

Plaintiff's prior cases

Plaintiff filed case 3:09cv177-LC/MD in the Pensacola Division of this Court on

April 21, 2009. Doc. 1.1

 Plaintiff was granted in forma pauperis status in that case, doc.

7, and on the same day that order was entered, a report and recommendation was

entered to dismiss the case without prejudice. Doc. 8. The report and recommendation

was adopted and the case dismissed on June 10, 2009. Doc. 13. It is true the case

was dismissed without prejudice, doc. 8, but dismissal was due to the fact that Plaintiff

was seeking monetary damages on claims that challenged the lawfulness of his

conviction. Such a claim is barred under Heck and Harden v. Patki, 320 F.3d 1289,

1295 (11th Cir. 2003). 

Plaintiff also filed case 3:09cv1186 in the Middle District on December 4, 2009. 

That case was a civil rights action brought under § 1983, and was dismissed on

December 18, 2009, with the order of dismissal citing Plaintiff's Pensacola Division case

(3:09cv177) and noting Plaintiff was essentially raising the same claim and it must also

be dismissed based on Heck v. Humphrey. Doc. 5 of case 3:09cv1186. The order of

dismissal was entered "without prejudice" but, as was the situation with the earlier case,

1

 Plaintiff did not acknowledge having filed any other cases in that complaint

either. Doc. 1. Plaintiff should have listed case 5:08cv24 on that complaint form as it

was filed a year earlier on January 22, 2008. Plaintiff withdrew his complaint in that

case. Doc. 6. 

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dismissal was based on the fact that Plaintiff's claims have not arisen until his conviction

is overturned in his favor pursuant to Heck.

The third case cited by Defendants, however, 3:10cv530, was filed in the

Jacksonville Division of the Middle District of Florida and does not count as a strike. 

That case, as Plaintiff correctly states, was a habeas petition filed under § 2254. Only

civil cases count as strikes under § 1915(g). Therefore, Plaintiff does not have three

strikes and the motion to dismiss should be denied.

While there might at one time have been a need to require Plaintiff to file an

amended complaint that fully, completely, and honestly disclosed all prior cases, that

need no longer exists in light of this report and recommendation. What does remain is

the need for an Answer and entry of a scheduling order. Defendant should be given ten

days after the adoption of this report and recommendation to file an Answer.

In light of the foregoing, it is respectfully RECOMMENDED that Defendant's

motion to dismiss, doc. 22, be DENIED, as Plaintiff does not have three "strike" under

28 U.S.C. § 1915(g); that Defendant be ORDERED to file an Answer within ten days of

the date this report and recommendation is adopted, and the case be REMANDED for

further proceedings.

IN CHAMBERS at Tallahassee, Florida, on February 23, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

Case No. 4:10cv332-MP/WCS
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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. 4:10cv332-MP/WCS