CROOK v. CUNNINGHAM

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
TAMMY CROOK
a/k/a RONNY H. CROOK,
D.O.C. # 275129,
Plaintiff,
vs. 	Case No. 5:26cv57-TKW-MAF
M. CUNNINGHAM,
Defendant.
___________________________/
REPORT AND RECOMMENDATION
Plaintiff, proceeding pro se, initiated this case by submitting a
pleading entitled as a “petition for writ of habeas corpus.” ECF No. 1.
There are, however, three problems with the initiation of this case.
First, Plaintiff did not submit a motion for in forma pauperis status or
pay the filing fee at the time of case initiation. That violates Local Rule 5.3
which requires a party to “simultaneously either pay any fee required under
28 U.S.C. § 1914 or move for leave to proceed in forma pauperis under 28
U.S.C. § 1915.” N.D. Fla. Loc. R. 5.3. Plaintiff did not do either one.
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Second, Plaintiff’s petition has been reviewed. Although Plaintiff
titled the pleading as a habeas petition, that is not the relief he seeks. The
petition makes clear that Plaintiff believes “mandamus is the proper
remedy” as he is requesting this Court order a state court “to issue a
certificate of taxable costs under section 939.06, Florida Statutes.” ECF
No. 1 at 1. Despite that assertion, Plaintiff then contends that his state
Classification Officer, Ms. Cunningham, has refused to issue a “shower
pass, and pronoun pass.” 1 Id. at 2. Plaintiff requests issuance of a writ of
mandamus to compel “the classification officer to give” Plaintiff the passes
sought. 	Id.
In light of that clarification, it appears that Plaintiff titled the “petition”
as one for habeas relief 2 to be afforded the benefit of a lower filing fee. A
habeas petition has only a $5.00 filing fee. 28 U.S.C. § 1914. However, a
civil case, including a petition for writ of mandamus, would be subject to a
$405.00 filing fee.
1 Plaintiff has gender dysphoria and identifies as transgender. ECF No. 1 at 5-6.
Plaintiff has been permitted to shower separately and is allowed “female only pat
search.” Id. at 6.
2 An action that seeks release from custody or otherwise challenges the length of
time a prisoner is incarcerated is properly filed as a habeas petition. 28 U.S.C. § 2241;
28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439
(1973).
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In this case, there is no need to delay this case to provide Plaintiff an
opportunity to file an in forma pauperis motion because Plaintiff is not
entitled to proceed with in forma pauperis status under 28 U.S.C. § 1915.
The Court takes judicial notice of the fact that Plaintiff is a “three striker”
under 28 U.S.C. § 1915(g) and Plaintiff has previously been denied leave
to proceed with in forma pauperis status in this Court. 	See case #
4:22cv170-MW-MAF. That statute prohibits a prisoner from bringing a civil
action “if the prisoner has, on 3 or more prior occasions, while incarcerated
or detained in any facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted, unless
the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.
§ 1915(g). As clarified above, Plaintiff’s “petition” does not allege that
Plaintiff faces physical injury.
When a “three strikes” prisoner does not pay the filing fee at the
outset, the proper remedy is to dismiss the case. Dupree v. Palmer, 284
F.3d 1234, 1236 (11th Cir. 2002) (rejecting a three-strikes prisoner’s
assertion that upon denial of leave to proceed in forma pauperis he should
have been allowed to pay the fee and avoid dismissal). That remedy
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should be employed here - this case should be dismissed because Plaintiff
did not pay the filing fee at the time of case initiation and because Plaintiff
has “three strikes” under 28 U.S.C. § 1915(g).
There is also another reason this case should be dismissed. As
noted above, Plaintiff is seeking a petition for “writ of mandamus.” ECF No.
1. This Court lacks authority to issue a writ of mandamus against state
officials. The mandamus statute provides that federal district courts “have
original jurisdiction of any action in the nature of mandamus to compel an
officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff.” 28 U.S.C. § 1361. Thus, Plaintiff is not entitled
to the relief sought. For all the foregoing reasons, this case should be
summarily dismissed.
RECOMMENDATION
It is respectfully RECOMMENDED that this case be DISMISSED
because Plaintiff is not seeking habeas relief but, instead, seeks to
improperly mandamus state officials, and because Plaintiff is not entitled to
proceed without payment of the filing fee. It is further RECOMMENDED
that the Clerk of Court be required to note on the docket that this cause
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was dismissed pursuant to the “three strikes” provision of 28 U.S.C. §
1915(g).
IN CHAMBERS at Tallahassee, Florida, on February 27, 2026.
S/ 	Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific written
objections to these proposed findings and recommendations. 	Fed. R.
Civ. P. 72(b)(2). A copy of the objections shall be served upon all other
parties. 	A party may respond to another party’s objections within
fourteen (14) days after being served with a copy thereof. Fed. R. Civ.
P. 72(b)(2). 	Any different deadline that may appear on the electronic
docket is for the Court’s internal use only and does not control. 	If a
party 	fails 	to 	object 	to 	the 	Magistrate 	Judge’s 	findings 	or
recommendations as to any particular claim or issue contained in this
Report and Recommendation, that party waives the right to challenge on
appeal the District Court’s order based on the unobjected-to factual and
legal conclusions. 	See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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