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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SHAWN M KESLING,

Plaintiff,

v. CASE NO. 1:10-cv-151-MP-GRJ

LT. R JERNIGAN, et al.,

Defendants.

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on Doc. 33, Plaintiff’s pro se second amended

complaint filed pursuant to 42 U.S.C § 1983 (“complaint”). Plaintiff has been granted

leave to proceed as a pauper, and this case is before the Court for screening pursuant

to 28 U.S.C § 1915, which provides that the Court may dismiss a case at any time if the

Court determines that the allegation of poverty is untrue, or the action is frivolous,

malicious, fails to state a claim upon which relief may be granted, or seeks monetary

relief against a defendant who is immune from such relief. 28 U.S.C § 1915(e)(2).

Plaintiff’s Allegations

At the time this case was filed, Plaintiff was an inmate in the custody of the

Florida Department of Corrections serving an Alachua County sentence for convictions

of fraud, larceny, and other offenses. See State v. Kesling, Case No. 07-CF-4206 A

(3/4/08 guilty adjudication). Plaintiff was sentenced to 3 years and nine months’

imprisonment, followed by 10 years of community supervision. See id. Plaintiff

completed the incarcerative portion of his sentence on March 22, 2011, but was

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released to a detainer from Ada County, Idaho, where Plaintiff is presently incarcerated. 

See Florida DOC Inmate Locator ; Doc. 29 (Plaintiff’s notice of change of address). 1

According to the complaint and attached exhibits, Plaintiff’s claims stem from a

prison disciplinary case in which he was charged with violating a prison regulation

prohibiting inmates from establishing or attempting to establish a business relationship

with any staff member. The charges were initiated while Plaintiff was confined at

Columbia, and his disciplinary proceeding was held at Santa Fe Work Release Center

following his transfer from Columbia. Plaintiff pleaded guilty, and was sanctioned with

the loss of 180 days of gain time and 60 days’ disciplinary confinement. Plaintiff

unsuccessfully pursued administrative remedies. Plaintiff contends that the eight

named defendants – officers and officials with the DOC, Columbia Correctional

Institution, and the Santa Fe Work Release Center – violated his right to due process in

connection with the disciplinary proceeding. Specifically, Plaintiff contends that his

guilty plea to the disciplinary charge was coerced and that he should not have been

found guilty of the charged offense. See Doc. 33. Plaintiff seeks declaratory relief and

compensatory and punitive damages. 

Heck v. Humphrey

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that:

[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid, a § 1983 plaintiff must

prove that the conviction or sentence has been 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

http://www.dc.state.fl.us/InmateInfo/InmateInfoMenu.asp 1

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federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A

claim for damages bearing that relationship to a conviction or sentence

that has not been so invalidated is not cognizable under § 1983. Thus,

when a state prisoner seeks damages in a § 1983 suit, the district court

must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.

512 U.S. at 486–87 (footnote omitted).

The Supreme Court has applied Heck to prisoners' claims challenging prison

disciplinary actions, even when the prisoner does not explicitly seek reinstatement of

lost good-time credits. See Edwards v. Balisok, 520 U.S. 641, 646 (1997) (holding that

Heck bars a prisoner's complaint that “would, if established, imply the invalidity of the

deprivation of his good-time credits”). Heck is not categorically applicable to all suits

challenging prison disciplinary actions. Muhammad v. Close, 540 U.S. 749, 754

(2004). But if good-time credits have been eliminated, a prisoner's § 1983 suit

challenging a disciplinary action may be construed as seeking a judgment at odds with

his conviction or with the state's calculation of time that he must serve for the underlying

sentence. See id. at 754–55 (stating that where the magistrate judge expressly found or

assumed that no good-time credits were eliminated by the challenged prison action, the

prisoner's § 1983 suit could not be construed as seeking a judgment at odds with his

conviction or sentence).

In this case, Plaintiff’s due process claims clearly stray into Heck waters,

because Plaintiff’s contention that his guilty plea to the disciplinary charge was coerced

necessarily implies the invalidity of the disciplinary conviction. Absent expungement or

invalidation of that disciplinary action, Plaintiff’s claims are barred by Heck.

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Plaintiff’s release from the incarcerative portion of his Alachua County sentence

does not moot an action for expungement or invalidation of the disciplinary conviction

such that he should be allowed to circumvent Heck’s favorable-termination requirement,

because if his gaintime were restored it could affect the date that his community

supervision/probation is deemed to commence. See, e.g., Dawson v. Scott, 50 F.3d

884, 886 n. 2 (11th Cir.1995) (former prisoner's 28 U.S.C § 2241 habeas corpus

challenge to his sentence not moot because the petitioner was “still serving his term of

supervised release, which [was] part of his sentence and involve[d] some restrictions

upon his liberty,” and because success on the merits of his habeas petition could alter

his supervised release term).

Conclusion

For the foregoing reasons, the Court concludes that the complaint fails to state a

claim upon which relief may be granted because it is barred by Heck. It is respectfully

RECOMMENDED that this case be DISMISSED pursuant to 28 U.S.C

§ 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. Such

dismissal should be without prejudice to Plaintiff re-filing the claims in the event that his

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disciplinary conviction is expunged or invalidated. 2

IN CHAMBERS this 23 day of September 2011. rd

s/Gary R. Jones 

GARY R. JONES

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.

 If a Florida prisoner wishes to challenge a disciplinary sanction imposed by the 2

DOC, he must file a petition for habeas corpus or mandamus relief in the appropriate

state trial court and, if unsuccessful, he must file a petition for certiorari review in the

appropriate state appellate court. See Jones v. Fla. Dep’t of Corr., 615 So.2d 798 (Fla.

1st DCA 1993) (holding that appropriate remedy to seek review of order denying

administrative appeal of disciplinary report against prisoner is by petition for

extraordinary relief in circuit court, and if petition is denied, prisoner may then seek

review of final order of circuit court)

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