KADARRELL L. JOHNSON, APPELLANT,
v.
WALTER A. MCNEIL, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, APPELLEE
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Kadarrell Johnson appealed the dismissal of his mandamus petition against the Florida Department of Corrections. The appellate court reversed the lower court's dismissal with prejudice, finding that Johnson's amended petition was timely filed and that any deficiency regarding exhaustion of remedies did not warrant final dismissal.
The amended petition was timely filed because it was placed in the hands of prison authorities within the period allowed by the first dismissal order. Although the petition remained deficient regarding exhaustion of remedies, this defect did not warrant final adjudication with prejudice; dismissal should have been without prejudice.
“the amended petition was placed in the hands of prison authorities and therefore timely filed within the period of time allowed by the first order of dismissal”
Establishes that timeliness is measured from when the petition is placed in prison authorities' hands, not when it reaches the court
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Join FLexlaw to unlock all legal intelligenceJohnson filed a petition for writ of mandamus, which was initially dismissed without prejudice, giving him 30 days to file documentation of exhausted …
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PER CURIAM.
Kadarrell Johnson appeals an order dismissing his petition for writ of mandamus with prejudice. After de novo review, we reverse and remand for further proceedings. See Fla. Pub. Employees Council 79, AFSCME v. Dep’t of Children & Families, 745 So. 2d 487 (Fla. 1st DCA 1999); Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th DCA 2002).
The lower court initially dismissed Johnson’s petition for writ of mandamus without prejudice, allowing him 30 days in which to file documentation showing that he had exhausted administrative remedies. Johnson promptly began a grievance proceeding, but could not complete the process within the time for amending his petition. He filed an amended petition but the lower court dismissed the case with prejudice on the ground that his petition was untimely.
Contrary to the lower court’s determination on this point, the amended petition was placed in the hands of prison authorities and therefore timely filed within the period of time allowed by the first order of dismissal. The amended petition is still deficient in the respect that the petitioner has not shown that he exhausted his remedies, but this defect does not warrant a final adjudication of the claim. The dismissal should have been without prejudice.
Reversed and remanded.
ALLEN, WEBSTER, and PADOVANO, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Waters v. Dept. OF Corrections, 144 So. 3d 613 (Fla. 1st DCA 2014)…peal to be considered by the Department. Adopting the Department’s arguments, the circuit court dismissed appellant’s petition. An appeal from an order dismissing a petition for writ of mandamus is reviewed by this court de novo. Johnson v. McNeil, 978 So. 2d 847 (Fla. 1st DCA 2008). “One seeking a writ of mandamus must establish the existence of ‘a clear legal right to the performance of a clear legal duty by a public officer and that ... no other legal remedies [are] available.’ ” Rivera v. Moore, 825 So.…
Authorities Cited
- Mazer v. Orange Cnty., 811 So. 2d 857 (Fla. 5th DCA 2002)
- Fla. Pub. Emps. Council 79 v. Dep't OF Child. & Families & Jeb Bush, 745 So. 2d 487 (Fla. 1st DCA 1999)