BLACKBURN v. FLORIDA DEPARTMENT OF CORRECTIONS et al

Filing 29

ORDER REQUIRING A RESPONSE TO, AND DIRECTING THE CLERK TO SET A HEARING ON, THE MOTION FOR RECONSIDERATION: Plaintiff may file a memorandum in response to 26 MOTION for Reconsideration. Clerk must set a hearing on the motion for the first available date on or after March 21, 2013. (Internal deadline for referral to judge if response not filed earlier: 3/11/2013).). Signed by JUDGE ROBERT L HINKLE on 2/26/2013. (jws)

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

EDWARD BLACKBURN,
Plaintiff,
v.

CASE NO. 4:12cv626-RH/GRJ

FLORIDA DEPARTMENT OF
CORRECTIONS et al.,
Defendants.
_______________________________/

ORDER REQUIRING A RESPONSE TO, AND
DIRECTING THE CLERK TO SET A HEARING
ON, THE MOTION FOR RECONSIDERATION
The defendants moved to dismiss the plaintiff’s state-law claims based in
part on the one-year statute of limitations for a claim “brought by or on behalf of a
prisoner, as defined in s. 57.085, relating to the conditions of the prisoner’s
confinement.” Fla. Stat. § 95.11(5)(g). In support, the defendants cited a single
decision, Nicarry v. Eslinger, 990 So. 2d 61 (Fla. 5th DCA 2008).
I denied the motion by an order entered on February 12, 2013. ECF No. 22.
The order distinguished Nicarry primarily on its facts. A federal court of course
must follow a Florida intermediate appellate decision on a state-law issue absent a
Case No. 4:12cv626-RH/GRJ

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basis for concluding the Florida Supreme Court would rule otherwise, but the
Nicarry reasoning—dictum, one might conclude—seemed a stretch. I declined to
extend Nicarry beyond its factual context.
The defendant Department of Corrections now has moved to reconsider. In
support, the Department cites not only Nicarry but now, for the first time, an
Eleventh Circuit decision that relied on Nicarry. See Rogers v. Judd, 389 F. App’x
983 (11th Cir. 2010). Rogers is unpublished and thus nonbinding, but it is a recent
Eleventh Circuit decision that accepts Nicarry and indeed extends it to a factual
context not easily distinguished from the case at bar.
This order gives the plaintiff an opportunity to respond. A response
challenging the failure to cite Rogers originally or asserting the issue ought not be
addressed de novo on the merits will carry little weight. My intention is to get the
issue right on its merits.
If, under Nicarry and Rogers, the statute of limitations for a claim of this
kind is one year, it will be necessary to decide whether the one-year statute applies
to a claim by a plaintiff who was a prisoner when the claim arose but was released
before filing the lawsuit. That issue was reserved in the original order.
For these reasons,
IT IS ORDERED:

Case No. 4:12cv626-RH/GRJ

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1.

The plaintiff may file a memorandum in response to the motion to

reconsider by March 11, 2013.
2.

The clerk must set a hearing on the motion for the first available date

on or after March 21, 2013.
SO ORDERED on February 26, 2013.
s/Robert L. Hinkle
United States District Judge

Case No. 4:12cv626-RH/GRJ