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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

RICHARD L. JOHNSON,

Petitioner,

v. CASE NO. 4:10-cv-0498-MP-GRJ

SECRETARY, DEPARTMENT

OF CORRECTIONS,1

Respondents.

_____________________________/

O R D E R

The undersigned recommended that this case be dismissed because the face of

Petitioner’s 28 U.S.C. § 2254 petition reflects that he did not pursue state court

remedies regarding the prison disciplinary conviction that is the subject of the Petition.

Doc. 12. Petitioner filed objections alleging that he did pursue state court remedies

“sometime year of 2008,” but that his disciplinary conviction was not set aside. Doc. 14. 

The district judge remanded the matter to the undersigned for a determination whether

the claims in Petitioner’s objections make a difference in the Court’s analysis. Doc. 16.

Petitioner has provided no specific information concerning his alleged exhaustion

of state court remedies. The Court’s habeas corpus petition form requires petitioners to

state whether each claim was asserted in state court, and if so to “explain how it was

raised.” Petitioner failed to provide the required information. Petitioner attached

Because Petitioner is an inmate in the custody of the Florida Department of 1

Corrections (DOC), the Secretary of the DOC is the state officer who has custody of

Petitioner, and therefore is properly named as the Respondent in this case. See Fed.

R. Civ. P. 17(d); Rule 2, Rules Governing Habeas Corpus Petitions under § 2254. The

Clerk is directed to correct the docket accordingly.
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administrative remedy documents to his petition, but no additional information

pertaining to the exhaustion of state court remedies. See Doc. 1. 

In his objections, Petitioner contends that a previous civil rights case that he filed

concerning the same disciplinary case was dismissed for failure to exhaust

administrative remedies as to his related claim for denial of medicine but was not

dismissed for failure to exhaust state court remedies. Petitioner argues that the court

in that case “would have, or should [have] stated, that the petitioner had not exhausted

the state court[‘s] remedies.” Doc. 14. Petitioner is mistaken. A prisoner must exhaust

administrative remedies prior to filing a federal civil rights case pursuant to 42 U.S.C § 

1983, but is not required to exhaust state court remedies. Petitioner’s previous civil

rights case was also dismissed pursuant to Edwards v. Balisok, 520 U.S. 641, 648-49

(1997) because Petitioner’s disciplinary case resulted in the loss of gain time and

therefore he could not pursue a § 1983 claim until such time as his disciplinary case

was set aside. The court determined that Petitioner’s disciplinary case had not been

set aside, but made no findings concerning whether Petitioner had pursued state court

remedies regarding the disciplinary case. See Johnson v. Demarais, Case No. 5:08-cv262, Doc. 78 (N.D. Fla. September 2, 2010).

As explained in the Report and Recommendation, federal habeas corpus

petitions are subject to the state-court exhaustion and other procedural requirements of

28 U.S.C. § 2254(b)(1) , thereby giving the State the “‘opportunity to pass upon and

2

 Section 2254 provides, in pertinent part, that: 2

(b) (1) An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

Case No: 4:10-cv-0498-MP-GRJ
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correct’ alleged violations of its prisoners' federal rights.” Duncan v. Henry, 513 U.S.

364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971) (citation omitted)). 

The instant Petition is also subject to the one-year limitations period of 28 U.S.C §

2244(d)(1).

In view of the sworn allegations of the Petition, which provided no information

regarding exhaustion of state court remedies, and Petitioner’s failure to provide any

specific information in his objections to the Report and Recommendation, the

undersigned is not persuaded that Petitioner has complied with the requirements of 28

U.S.C. § 2254(b)(1). Nevertheless, in view of Petitioner’s pro se status and his

allegation in his objections that he has exhausted state court remedies, out of an

abundance of caution the Court will permit Petitioner an opportunity to file an Amended

Petition. Petitioner shall complete a new petition form, marking it “Amended Petition.” 

Petitioner shall not refer to the original petition or incorporate any allegations by

reference to the original petition. Petitioner must provide all of the information required

on the petition form, including explaining how each claim was raised in state court. The

instant Petition seeks monetary damages. Monetary damages cannot be awarded in a

unless it appears that --

(A) the applicant has exhausted the remedies available in the courts of the

State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the

rights of the applicant. 

Case No: 4:10-cv-0498-MP-GRJ
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habeas corpus case, and therefore any claim for monetary damages will be stricken.

Accordingly, it is ORDERED

1. Petitioner’s motion for leave to proceed as a pauper, Doc. 2, is GRANTED.

2. The Clerk shall send Petitioner a blank state prisoner habeas corpus form.

Petitioner shall prepare an Amended Petition as directed herein, and shall file

the Amended Petition, together with two identical service copies, on or before

May 19, 2011. 

3. Failure to comply with this order within the allotted time may result in a

recommendation that this case be dismissed.3

DONE AND ORDERED this 19 day of April 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Petitioner should note that if he fails to respond to this Order and this case is 3

dismissed, any subsequently-filed habeas petition in this Court challenging the same

conviction may be barred by the one-year limitation period for filing a habeas petition in

the federal courts. See 28 U.S.C. § 2244(d)(1). Although the one-year period is tolled

during the time in which a properly filed application for state post- conviction relief is

pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is

"properly filed" under 28 U.S.C. § 2244(d)(2)), the time in which a federal habeas

petition is pending does not toll the one-year limitation period. See Duncan v. Walker,

533 U.S. 167 (2001) (holding that an application for federal habeas corpus review does

not toll the one-year limitation period under § 2244(d)(2)).

Case No: 4:10-cv-0498-MP-GRJ