DERRICK ALLEN, APPELLANT,
v.
MICHAEL D. CREWS, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS ET AL., APPELLEE
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An inmate appealed the dismissal of his complaint against the Florida Department of Corrections for negligent handling of his property. The court held that failure to provide pre-suit notice to the Department of Financial Services before filing a complaint is not an incurable defect, and reversed and remanded the claim against the Secretary of DOC in his official capacity.
The trial court erred in dismissing the case based solely on Allen's failure to give notice to DFS prior to filing the complaint. Notice given after filing but within the statute of limitations period is not an incurable defect, and the complaint should not have been dismissed with prejudice.
[1] The exclusive remedy for an inmate's claim against the Department of Corrections for negligent handling of property is an action against the governmental entity or its he…
[2] Strict compliance with the notice provision for claims against governmental entities is required.
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Join FLexlaw to unlock all legal intelligence“[t]he exclusive remedy ... shall be by action against the governmental entity, or the head of such entity in her or his official capacity.”
Establishes the exclusive remedy for DOC negligent handling of inmate property claims
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Join FLexlaw to unlock all legal intelligenceDerrick Allen, an inmate, filed a complaint alleging that the Department of Corrections failed to properly inventory or preserve his collection of boo…
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This is an appeal from the trial court’s order dismissing Appellant Derrick Allen’s complaint, which alleged that the Department of Corrections (“DOC”) failed to properly inventory or preserve his collection of books. We affirm without comment the trial court’s dismissal as to all of the defendants except the Secretary of the DOC, in his official capacity. As to the Secretary, we reverse and remand.
In cases involving the DOC’s alleged negligent handling of inmate property, “[t]he exclusive remedy ... shall be by action against the governmental entity, or the head of such entity in her or his official capacity.” § 768.28(9)(a), Fla. Stat. (2012); Stephens v. Geoghegan, 702 So.2d 517, 527 (Fla. 2d DCA 1997). To pursue that claim, the law first requires notice to be filed with the Department of Financial Services (“DFS”) within three years of the alleged incident. See § 768.28(6), Fla. Stat. This Court has held that the notice provision “is strictly construed, with strict compliance being required.” Maynard v. State, Dep’t of Corr., 864 So.2d 1232, 1234 (Fla. 1st DCA 2004).
Here, the trial court found that Appellant did not comply with the notice requirement because he “failed to present his claim in writing to [DFS] prior to filing his complaint.” But prior notice has not been strictly required. The fact that Appellant apparently gave notice after the filing of the complaint1 was not an incurable defect. As the Fourth DCA has noted:
[N]otice is a temporary procedural bar to a lawsuit against the State or one of its subdivisions.... [But] this court permitted the amendment of a complaint to allege compliance with section 768.28(6) where notice to governmental agencies was given subsequent to the filing of the *760lawsuit but within the statute of limitations period.
Villa Maria Nursing & Rehab. Ctr., Inc. v. S. Broward Hosp. Dist., 8 So.3d 1167, 1171 (Fla. 4th DCA 2009) (internal quotation marks and citations omitted). See also Hamide v. State Dept, of Corr., 548 So.2d 877, 880 (Fla. 1st DCA 1989) (reversing a dismissal with prejudice; directing the trial court to “entertain appellant’s motion to amend the complaint to allege timely compliance with the notice provisions of section 768.28, if in fact appellant is able to do so”).
For this reason, the trial court erred by dismissing this case on the basis that Appellant failed to give notice to DFS prior to filing his complaint. Accordingly, we REVERSE with respect to Appellant’s claim against the Secretary in his official capacity and REMAND for proceedings in accordance with this opinion. As to all other defendants, we AFFIRM.
BENTON, SWANSON, and OSTERHAUS, JJ., concur.
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Citator
Authorities Cited
- Stephens v. Geoghegan, 702 So. 2d 517 (Fla. 2d DCA 1997)
- Hamide v. State of Fla. Dep't OF Corr., 548 So. 2d 877 (Fla. 1st DCA 1989)
- Villa Maria Nursing & Rehab. Ctr., Inc. v. S. Broward Hosp. Dist., 8 So. 3d 1167 (Fla. 4th DCA 2009)
- Kejricvajal Griffin v. Fla. Dep't OF Corr., 864 So. 2d 1232 (Fla. 1st DCA 2004)