BOYER v. DESANTIS ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION SHAWN MICHAEL BOYER, Petitioner, v. Case No. 5:21-cv-208-AW-MJF RON DESANTIS, Respondent. _______________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION Petitioner Shawn Michael Boyer initiated this case under 28 U.S.C. § 2241, contending Governor DeSantis wrongfully denied him due process in the context of his clemency proceeding. ECF No. 1. The magistrate judge issued a report and recommendation, concluding the relief sought was cognizable under § 1983—not habeas. ECF No. 8. Accordingly, the magistrate judge recommended dismissal. Boyer has objected. ECF No. 9. He “yields to the fact his habeas corpus petition under 28 U.S.C. § 2241 should have been file[d] under a § 1983 civil rights action,” id. at 1, but he asks that the case be converted to a § 1983 action rather than dismissed. He points to Wilwording v. Swenson, 404 U.S. 249, 251 (1971), which he contends supports his position. But that case came before the PLRA introduced an administrative exhaustion requirement for prisoner litigation. See Woodford v. Ngo, 548 U.S. 81, 84 (2006) (“Before 1980, prisoners asserting constitutional claims had no obligation to exhaust administrative remedies.” (citing Wilwording)). And since that time, the Eleventh Circuit has affirmed dismissals of habeas cases that theoretically could have been recast as § 1983 claims. See McNabb v. Comm’r Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013) (affirming dismissal of habeas petition and noting that the “avenue of relief is still available to [petitioner] in a § 1983 action”); see also Kerlin v. Barnard, 742 Fed. App’x 488, 489 (11th Cir. 2018) (“[T]he district court should dismiss a habeas petition raising a claim available under § 1983.”). In light of this, and having carefully considered de novo Boyer’s objection, I conclude dismissal is appropriate. The dismissal will be without prejudice, and Boyer may initiate a new § 1983 case. See McNabb, 727 F.3d at 1344. The report and recommendation (ECF No. 8) is adopted and incorporated into this order. The clerk will enter a judgment that says, “This case is dismissed without prejudice and a certificate of appealability is denied.” The clerk will then close the file. SO ORDERED on December 28, 2021. s/ Allen Winsor United States District Judge