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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION

PAUL ALMER BRANCH,

Plaintiff,
vs. Case No. 4:10cv516-RH/WCS
KURT S. BROWNING, CHARLIE CRIST,

Defendants.

SECOND REPORT AND RECOMMENDATION

The pro se Plaintiff initiated this case on November 23, 2010, by filing a
complaint, doc. 1, and an in forma pauperis motion, doc. 2, which was granted by court
order entered on December 6, 2010. Doc. 4. Within that order, | noted Plaintiffs case
could not go forward as Defendants have Eleventh Amendment immunity against
Plaintiff's claim for monetary damages based on his assertion that he was wrongfully
incarcerated. /d., at 2. However, | noted that if | had not interpreted Plaintiff's claims
correctly, he could file an amended complaint. /d., at 3. | pointed out that if Plaintiff was
seeking compensation for a wrongful period of incarceration, Plaintiffs only avenue of

recourse was through the filing of a special claims bill. /d. Plaintiffs deadline for


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responding to the order was January 5, 2011. /d. When nothing had not been received
by Plaintiff, | entered an Report and Recommendation on January 14, 2011,
recommending the case be dismissed for Plaintiff's failure to comply with a court order.
Doc. 5.

Plaintiff has filed a belated response to the December order asserting that the
"court misinterpreted his claim." Doc. 6. Plaintiff states the "claim is against the state
and not an individual." fd. It remains, however, that Plaintiff is still seeking monetary
compensation for what he contends is a wrongful period of incarceration based on a
change in the law which occurred approximately five years after he was released from
prison. See docs. 1, 6.’

Whether Plaintiffs claim is against the State of Florida or against the Governor
and Secretary of State for the State, it is the same - Plaintiff seeks monetary damages
from the State or from an Official representing the State. Such a claim is barred by the
Eleventh Amendment. Plaintiff cannot use this civil rights action to obtain money for an
unlawful period of incarceration. Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39
L. Ed. 2d 662 (1974); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed.2d 90

(1974). This case should be dismissed as no relief may be provided to Plaintiff.

' Plaintiff was convicted in November, 1997, and sentenced on January 26, 1998,
as a "prison releasee reoffender" designation which carried a mandatory sentence for
the qualifying offense of battery on a law enforcement officer. Doc. 6, pp. 4-5. Plaintiff
was released from prison on November 22, 2002. Plaintiff contends without the
designation, he would have been released earlier. /d. Plaintiff state that on April 26,
2007, the Florida Supreme Court held that battery on a law enforcement officer is not a
qualifying offense for the reoffender designation. That opinion, State v. Hearns 961
So.2d 211 (Fla.,2007), disapproved of Plaintiffs criminal appeal before the First District
Court of Appeal, Branch v. State, 790 So.2d 437 (Fla. ist DCA, 2000).

Case No. 4:10cv516-RH/WCS


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In light of the foregoing, it is respectfully RECOMMENDED that Plaintiffs
complaint, doc. 1, be DISMISSED because Plaintiffs claim for relief is barred by the
Eleventh Amendment.

IN CHAMBERS at Tallahassee, Florida, on January 24, 2011.

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, 4:10cv516-RH/WCS,