COLE v. DIXON

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

LEMUEL L. COLE,

Petitioner,

v. Case No. 3:24cv417-TKW-HTC

RICKY DIXON,

Respondent.

___________________________/

ORDER and

REPORT AND RECOMMENDATION

Lemuel L. Cole, proceeding pro se, initiated this action by filing a handwritten

“Petition for Writ of Mandamus or in the Alternative for Writ of Habeas.” Doc. 1.

Cole has also filed a motion to proceed in forma pauperis. Doc. 6. The undersigned

screened the filing and was unable to determine whether Cole was seeking to file a

habeas action under 28 U.S.C. § 2254, an improper petition for writ of mandamus

directed at state officials, or a civil action seeking declaratory and injunctive relief

under 42 U.S.C. § 1983. Thus, the undersigned issued an Order to Cole advising

him that to the extent he was seeking to file a habeas petition, he must use the Court’s

form for habeas petitions and must file a motion to proceed in forma pauperis. Doc.

3. Despite the clear directives in the Court’s September 9, 2024 Order, however,

Cole did not submit a habeas petition on this Court’s forms. Instead, Cole filed an

“Amended Petition for Writ of Mandamus and/or Declaratory Judgment,” Doc. 5,

which, like the first filing, is not a habeas petition and continues to seek federal

mandamus relief against state officials.

As explained more fully below, the undersigned finds that this case was

improperly docketed by the clerk as a habeas matter because Cole is not seeking

habeas relief. Rather, Cole is seeking a writ of mandamus compelling action from

state officials, which is improper. Thus, the only viable construction of his case is

as an action seeking declaratory and injunctive relief under § 1983. Cole, however,

cannot file an action under § 1983 for declaratory and injunctive relief because he is

a 3-striker who did not pay the filing fee when he filed this action. Indeed, because

Cole is a 3-striker, his motion to proceed in forma pauperis, Doc. 6, should be

DENIED.

I. BACKGROUND

Cole was an inmate at Century Correctional Institution at the time he filed this

action, serving lengthy sentences imposed for aggravated battery and armed robbery

in Miami-Dade County case 1980 CF 23642. Over the years, he has filed numerous

civil actions and habeas petitions in state and federal court. In this action, Cole takes

issue with the disposition of an emergency petition for writ of habeas corpus he filed

with the First District Court of Appeals (“First DCA”). Doc. 5 at 5. Cole explains

that this emergency petition was denied per curiam on May 29, 2024, with only the

following language: “DISMISSED. See Baker v. State, 878 So. 2d 1236 (Fla.

2004).” Baker held that “a Florida prisoner may not use a state habeas petition to

collaterally attack his conviction but instead must file a 3.850 motion[.]” Kessler v.

Sec'y of Fla. Dep’t of Corr., 2022 WL 936100, at *8 (N.D. Fla. Feb. 23, 2022), report

and recommendation adopted, 2022 WL 911673 (N.D. Fla. Mar. 29, 2022). Cole

then filed a motion for rehearing and amended motion for rehearing, both of which

were denied. Doc. 5 at 6-7.

In Cole’s original petition for writ of mandamus, Doc. 1, he argued that the

First DCA’s dismissal of the emergency petition constituted a suspension of the writ

of habeas corpus in violation of the Suspension Clause.1 He, therefore, asked this

Court for “a writ of mandamus, compelling the state courts below to comply with

the federal habeas corpus due process and/or equal protection rights, to an unbiased

determination of his state and/or federal constitutional claims, of his current illegal

detention and right under the existing law to immediate release.” Doc. 1 at 1.

As stated above, the Court issued an Order directing Cole to file an amended

habeas petition on this Court’s forms if he wanted to pursue habeas relief under

§ 2254, and to file a motion to proceed in forma pauperis. The Court further noted

that, if Cole was only seeking mandamus relief against state officials, he should

1 Art. I, § 9, cl. 2 of the Constitution provides: “The Privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

voluntarily dismiss this action because it is not a habeas action, and Cole was not

entitled to the relief requested.2 Doc. 3.

In response to the Court’s Order, Cole chose not to use the § 2254 form;

instead, he filed an “Amended Petition for Writ of Mandamus and/or Declaratory

Judgment,” Doc. 5, in which he continues to seek mandamus relief rather than

federal habeas relief. He does not ask this Court to order his immediate release but

rather requests that the Court order the state courts to consider his state habeas

petition on the merits. See Doc. 5 at 23-24. Notably, Cole deleted the reference to

“habeas” in the title of the amended petition and replaced it with a request for a

“declaratory judgment.”

Because Cole’s amended petition constitutes a civil action under § 1983, see,

e.g., Allen v. Ala. Dep't of Corr., 2021 WL 11421356 at *1 n.2 (M.D. Ala. Jan. 11,

2021) (rejecting petition for writ of mandamus against state officials but informing

plaintiff that what he is really trying to do is seek relief under § 1983), rather than a

habeas petition, the Court will direct the clerk to redesignate this matter as a prisoner

civil rights action (rather than a habeas action). See e.g., Ridley v. Fla. Dep’t of Law

Enf’t, 2020 WL 2949834, at *2 (N.D. Fla. May 14, 2020), report and

2 See Lawrence v. Miami-Dade Cnty. State Att'y Off., 272 F. App’x 781 (11th Cir. 2008) (“federal

courts have no general power to issue writs of mandamus to direct state courts and their judicial

officers in the performance of their duties where mandamus is the only relief sought”) (quoting

Lamar v. 118th Judicial Dist. Court of Tex., 440 F.2d 383, 384 (5th Cir. 1971)).

recommendation adopted sub nom. Ridley v. Ford, 2020 WL 2949907 (N.D. Fla.

June 3, 2020) (construing habeas petition as civil rights action under § 1983 because

petitioner “does not seek immediate release from custody or a shortening of his

sentence” and instead “seeks declaratory and injunctive relief directed at Florida

state officials”) (citing Hall v. Marshall, 2005 WL 3479880 (E.D.N.Y. Dec. 20,

2005) (“because he is not challenging ‘the fact or duration of custody,’ the Court

construes Hall’s habeas petition as a section 1983 claim”)); Wheat v. Pub. Defenders

Office, 2015 WL 4877236, at *1 (M.D. Ga. Aug. 14, 2015) (liberally construing case

docketed as habeas petition as a § 1983 complaint for damages and injunctive or

mandamus relief”); Rodriguez v. Clipford, 2022 WL 22878026, at *1 (N.D. Fla.

Sept. 6, 2022) (“Plaintiff does not challenge the validity of his sentence or

confinement and does not appear to seek immediate or speedier release. Thus, this

court will construe the motion as a civil rights action brought under 42 U.S.C. § 1983

and not one sounding in habeas relief.”).

Cole, however, is barred from filing a § 1983 action without paying the full

filing fee because he is a three-striker under 28 U.S.C. § 1915(g).3 Title 28 U.S.C.

3 Section 1915(g) would apply even if the Court were to construe the case as a petition for writ of

mandamus. See Hernandez v. Ryan, 2010 WL 3447487, at *3 (S.D. Fla. Aug. 11, 2010)

(“Petitions for Mandamus against either federal officials or against state officials qualify as ‘civil

actions’ under 28 U.S.C. § 1915(g).”), report and recommendation adopted, 2010 WL 3447486

(S.D. Fla. Aug. 31, 2010) (citing In Re: Billy D. Jacobs, a/k/a Ya qub, 213 F.3d 289 (5th Cir.

2000)); see also, Green v. Nottingham, 90 F.3d 415, 418 (10th Cir. 1996) (holding that mandamus

petitions qualify as “civil actions” under § 1915(g), and that plaintiff with three prior strikes under

§ 1915(g) of the Prison Litigation Reform Act (“PLRA”) prohibits a prisoner from

proceeding in forma pauperis under certain circumstances:

In no event shall a prisoner bring a civil action or appeal a judgment in

a civil action or proceeding under this section if the prisoner has, on 3

or more prior occasions, while incarcerated or detained in any facility,

brought an action or appeal in a court of the United States that was

dismissed on the grounds that it is frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.

A prisoner who is barred from proceeding in forma pauperis must pay the

filing fee at the time he initiates his lawsuit, and his failure to do so warrants

dismissal of his case without prejudice. See Dupree v. Palmer, 284 F.3d 1234, 1236

(11th Cir. 2002) (holding that “the proper procedure is for the district court to

dismiss the complaint without prejudice when it denies the prisoner leave to proceed

in forma pauperis pursuant to the provisions of § 1915(g)” because the prisoner

“must pay the filing fee at the time he initiates the suit”) (emphasis omitted);

Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating that after

three meritless suits, a prisoner must pay the full filing fee at the time he initiates

suit). The only exception is if the prisoner alleges he is “under imminent danger of

the statute could not be permitted to continue filing actions by merely framing pleadings as

petitions for writs of mandamus since to do so would allow a loophole Congress surely did not

intend in its stated goal of discouraging frivolous and abusive prison lawsuits); In Re: Michael C.

Washington, 122 F.3d 1345 (10th Cir. 1997) (petitions for writ of mandamus qualify as “civil

actions” under § 1915(g)).

serious physical injury.” 28 U.S.C. § 1915(g); see also Brown v. Johnson, 387 F.3d

1344, 1349 (11th Cir. 2004).

The Court takes judicial notice that as early as 2012, the Southern District of

Florida determined that Cole was a three-striker. See Report and Recommendations,

Doc. 4, Cole v. Kebe Commissary Network, 2:12-cv-14268-KMM (S.D. Fla. July

27, 2012) (listing prior strikes and dismissing case without prejudice under 28 U.S.C.

§ 1915(g)). Because Cole has three strikes, he may not litigate this case in forma

pauperis unless he demonstrates he is “under imminent danger of serious physical

injury.” See 28 U.S.C. § 1915(g). Cole, however, does not meet this exception. As

set forth above, he complains the First DCA should have considered his state habeas

petition on the merits. Thus, he does not allege he is in imminent danger of serious

physical injury. Therefore, Cole’s failure to pay the full filing fee when he filed suit

warrants dismissal. See Dupree, 284 F.3d at 1236.

Accordingly, it is ORDERED:

1. The clerk shall redesignate this matter on the electronic docket as a

prisoner civil rights action, rather than a habeas or mandamus action.

2. Plaintiff’s motion to proceed in forma pauperis, Doc. 6, is DENIED.

And it is RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. § 1915(g) because Cole is a three-striker who did not pay the filing fee upon

filing this civil action.

2. That the clerk close the file.

At Pensacola, Florida, this 23rd day of October, 2024.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed within

fourteen (14) days of the date of the Report and Recommendation.  Any different

deadline that may appear on the electronic docket is for the court’s internal use only

and does not control.  An objecting party must serve a copy of its objections upon

all other parties.  A party who fails to object to the magistrate judge’s findings or

recommendations contained in a report and recommendation waives the right to

challenge on appeal the district court’s order based on the unobjected-to factual and

legal conclusions.  See 11th Cir. Rule 3-1.