MOORE v. FEDERAL BUREAU OF PRISONS

Filing 90

ORDER ACCEPTNG AND ADOPTING 88 REPORT AND RECOMMENDATION - 64 Motion to Dismiss is GRANTED and the Clerk is directed enter Judgment in favor of the Defendants and to close the file; signed by JUDGE MARK E WALKER on 3/19/13. (tss)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION

KEVIN ANTHONY MOORE,
Plaintiff,
v.

CASE NO. 5:10-cv-38/MW/EMT

MIKE HARRIS and
WARDEN MARK HENRY,
Defendants.
____________________________/
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION

The Court has considered the Magistrate’s Report and Recommendation,
ECF No.88, filed March 1, 2013.

The Court has also reviewed de novo Plaintiff’s

Objection to Report and Recommendation of Magistrate, ECF No.89, filed March
15, 2013.

Upon consideration,

IT IS ORDERED:
The report and recommendation is accepted and adopted as the court’s
opinion and this Court notes the following.
Plaintiff attempts to avoid the application of the statute of limitations by
seeking shelter under the Heck accrual rule. See Heck v. Humphrey, 512 U.S. 477,
489-90 (1994). Heck, however, does not apply. Heck prohibits an action under §

42 U.S.C. 1983 if “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” “unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Id. at 487.
Here, neither the conviction nor sentence is implicated.

The thrust of

Plaintiff’s argument is that the status of being a sex offender and the associated
registration requirements implicate his “sentence” for purposes of Heck. Contrary
to Plaintiff’s view, the Supreme Court has made clear that the word “sentence” as
used in Heck refers to “substantive determinations as to the length of
confinement.” Wilkinson v. Dotson, 544 U.S. 74, 83 (2005). It is for this reason
that Heck’s application has logically extended to cases involving deprivation of
gain time as a result of disciplinary proceedings. See, e.g., Edwards v. Balisok,
520 U.S. 641, 645-48 (1997). Inasmuch the length of Plaintiff’s confinement is not
implicated, Heck has no application in this case.
The Clerk shall enter judgment stating, “Defendants’ motion to dismiss is
GRANTED; judgment is entered in favor of Defendants.” The Clerk shall close
the file.
SO ORDERED on March 19, 2013.
s/Mark E. Walker
United States District Judge