[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-11918

Non-Argument Calendar

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D.C. Docket No. 3:18-cv-00390-MMH-JRK

GERRARD D. JONES,

 Petitioner – Appellant,

versus

SECRETARY FLORIDA DEPARTMENT OF CORRECTIONS, 

FLORIDA ATTORNEY GENERAL, 

 Respondents – Appellees.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 8, 2019)

Before MARCUS, JORDAN, and ROSENBAUM, Circuit Judges.

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PER CURIAM:

Gerrard Jones appeals pro se the district court’s order dismissing his 28 U.S.C. 

§ 2254 petition and later motion to reopen under Federal Rule of Civil Procedure 

59(e). Because the district court did not consider whether dismissing Mr. Jones’ 

§ 2254 petition without prejudice would in fact preclude his ability to later seek 

habeas relief, we vacate the court’s dismissal order and remand. 

I

In March 2018, Mr. Jones filed a § 2254 petition challenging, among other 

things, a disciplinary report that was used to justify confining him in close 

management isolation. He claimed that the Florida Department of Corrections failed 

to comply with the American with Disabilities Act, and policies of the prison, in 

violation of his due process rights. In particular, he asserted that the prison requires 

a mental health staff member to be consulted before any disciplinary action against 

a mentally impaired inmate can be taken. 

The district court sua sponte dismissed the petition without prejudice because 

it found that Mr. Jones had filed a similar habeas petition that was still pending. 

Because the district court found that the pending petition appeared to challenge the 

same disciplinary report and his continued close management confinement, the court 

“dismiss[ed] this case without prejudice to his right to challenge the [discplinary 

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report] and his continued [close management] confinement in [the pending] case.” 

D.E. 5 at 1–2. 

Mr. Jones filed a motion to reinstate his § 2254 petition, asserting that the 

district court erred in dismissing his claims because the two pending petitions in fact 

challenged separate disciplinary reports. The disciplinary report in the pending 

habeas case was written on August 18, 2015, and charged that Mr. Jones had lied to 

the prison staff. But his second petition challenged a disciplinary report authored on 

July 13, 2015, that charged that Mr. Jones had disobeyed a verbal order. He 

supported his motion by attaching two decisions affirming the state court’s denials 

of separate challenges to each disciplinary report. 

The district court denied Mr. Jones’ motion to reinstate his § 2254 petition, 

which it construed as a Rule 59(e) motion. The court noted that “[w]ith [Mr.] Jones’s 

clarification, the Court finds that [Mr.] Jones should have the opportunity to 

challenge the July 13, 2015 [disciplinary report] in a separate habeas petition in this 

Court.” D.E. 8 at 2. But some of Mr. Jones’ claims were asserted on behalf of “other 

mentally impaired inmates.” Id. Thus, the court “den[ied] his Motion without 

prejudice to his right to refile a habeas corpus petition form in this Court to challenge 

the July 13, 2015” disciplinary report. Id. at 2–3.

Mr. Jones filed for a certificate of appealability on the denial of his motion to 

reinstate, which the district court denied. He then sought a certificate before this 

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court, which we granted on the following issue: “Whether the District Court erred 

by dismissing Mr. Jones’s § 2254 petition and denying his subsequent motion to 

reopen, without prejudice, after acknowledging that it made a mistake of fact in 

determining that his claim was duplicative of claims raised in a separate 

proceeding?” 

II

We review de novo a district court’s dismissal of a § 2254 petition. See Clark 

v. Crosby, 335 F.3d 1303, 1307 (11th Cir. 2003). And we review for abuse of 

discretion the district court’s denial of a Rule 59(e) motion to alter or amend the 

judgment. See Lambert v. Fulton Cty., Ga., 253 F.3d 588, 598 (11th Cir. 2001). 

We agree with Mr. Jones that the district court erred by dismissing his § 2254 

petition. A district court may sua sponte dismiss a case without prejudice. See Moon 

v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). But even when the dismissal order 

expressly states that the dismissal is without prejudice, if “such an order has the 

effect of precluding [the] plaintiff from refiling his claim due to the running of the 

statute of limitations[, then] the dismissal is tantamount to a dismissal with 

prejudice.” Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993)

(cleaned up). Dismissals with prejudice are “drastic remedies that are to be used 

only where a lesser sanction would not better serve the interests of justice.” Id. 

Thus, such dismissals are “not proper unless the district court finds a clear record of 

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delay or willful conduct and that lesser sanctions are inadequate to correct such 

conduct.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). 

Mr. Jones’ § 2254 petition was dismissed without prejudice. But any 

subsequent petition challenging the July 13 disciplinary report may be time-barred. 

See Duncan v. Walker, 533 U.S. 167, 181–82 (2001) (holding that the filing of a 

§ 2254 petition does not toll § 2254(d)’s one-year statute of limitations). The 

mandate for Mr. Jones’s state judgment was entered on January 2, 2018, so unless 

he is entitled to equitable tolling of the statute of limitations, any dismissal is now 

tantamount to a dismissal with prejudice. Absent an opportunity for him to amend 

his petition—which Federal Rule of Civil Procedure 15(a)(2) suggests courts 

“should freely give”—the district court’s decision to dismiss his petition was an 

abuse of discretion. See Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 

470 F.3d 1036, 1041 (11th Cir. 2006) (“Unless a substantial reason exists to deny 

leave to amend, the discretion of the District Court is not broad enough to permit 

denial.”) To the extent that Mr. Jones’ § 2254 petition improperly contained claims 

on behalf of other inmates, the district court can dismiss those claims and let Mr. 

Jones litigate the claim concerning the July 13 report. 

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III

For the foregoing reasons, we reverse the district court’s order dismissing Mr. 

Jones’s § 2254 petition and remand for further proceedings consistent with this 

opinion.

REVERSED AND REMANDED.

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