[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-12896 DECEMBER 14, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 1:10-cv-21575-JAL
STEVEN LEONARD,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF INVESTIGATION (FBI), U.S. DEPARTMENT OF JUSTICE, STATE OF FLORIDA KATHERINE FERNANDEZ-RUNDELL, in her official capacity as Miami Dade County State Attorney,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 14, 2010)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
PER CURIAM: Proceeding pro se, Appellant Steven Leonard appeals the district court’s
dismissal of his complaint under 42 U.S.C. § 1983 against the Federal Bureau of
Investigation (“FBI”), the U.S. Department of Justice (“DOJ”), the State of
Florida, and the state attorney for Miami-Dade County, Florida. Construing his
brief and his complaint liberally, Leonard argues that the defendants maliciously
prosecuted him for exercising his First Amendment right of access to public
records, his right to request information under the Freedom of Information Act
(“FOIA”), and his right under 18 U.S.C. § 245 to freedom from intimidation for
exercising his federally protected rights. Additionally, Leonard argues that the
district court failed to construe the complaint liberally and that the dismissal of the
complaint deprived Leonard of his First Amendment right to petition the
government to redress his grievance.
We review de novo the district court’s order of dismissal under 28 U.S.C. §
1915(e)(2)(B)(ii) of an in forma pauperis complaint, and we accept as true the
complaint’s well-pleaded factual allegations. Mitchell v. Farcass, 112 F.3d 1483,
1489-90 (11th Cir. 1997). We may affirm on any ground supported in the record
even if that ground was not relied upon or considered by the district court.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Finally,
“[p]ro se pleadings are held to a less stringent standard than pleadings drafted by
2 attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The district court must dismiss an in forma pauperis complaint that “fails to
state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as a
dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mitchell,
112 F.3d at 1490. Dismissal for failure to state a claim is appropriate if the facts
as pleaded fail to state a claim for relief that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (Rule
12(b)(6) dismissal). The “plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)
(alteration and citation omitted).
Section 1983 requires the plaintiff to show that he “was deprived of a
federal right by a person acting under color of state law.” Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001); see 42 U.S.C. § 1983. “Section
1983 creates no substantive rights; it merely provides a remedy for deprivations of
federal statutory and constitutional rights.” Almand v. DeKalb County, Ga., 103
3 F.3d 1510, 1512 (11th Cir. 1997). Although Section 1983 applies only to state
officials, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29
L. Ed. 2d 619 (1971), provides a parallel remedy for the deprivation of rights by a
federal official. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). We
generally apply the same law to both Bivens and Section 1983 cases. Id. Liberally
construed, the complaint alleges a Bivens claim against the federal defendants and
a Section 1983 claim against the Florida defendants. The complaint also alleges
that the defendants were acting under color of state law; thus, the sole issue is
whether the defendants deprived Leonard of a federally protected right.
Despite the existence of the § 1983 remedy, “habeas corpus [rather than
§ 1983] is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release.” Bradley v.
Pryor, 305 F.3d 1287, 1289 (11th Cir. 2002) (citing Preiser v. Rodriguez, 411
U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)). This rule applies to an action
for damages under § 1983 if a judgment in the plaintiff’s favor “would necessarily
imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S.
477, 487, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). In either
circumstance, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has been “reversed on direct appeal,
4 expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Id. However, this rule necessarily applies only if “there
exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an
‘outstanding criminal judgment.’” Wallace v. Kato, 549 U.S. 384, 393, 127 S. Ct.
1091, 1097-98, 166 L. Ed. 2d 973 (2007). Stated differently, Heck does not bar
“an action which would impugn an anticipated future conviction.” Id.
Although Leonard asserts an array of constitutional and statutory violations
by the defendants, the substance of Leonard's complaint alleges that the
defendants violated the Fourth Amendment by maliciously prosecuting Leonard
for attempting to exercise his federal rights. To prove malicious prosecution under
§ 1983, Leonard must allege “(1) the elements of the common law tort of
malicious prosecution, and (2) a violation of [his] Fourth Amendment right to be
free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220,
1234 (11th Cir. 2004).
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-12896 DECEMBER 14, 2010 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 1:10-cv-21575-JAL
STEVEN LEONARD,
Plaintiff-Appellant,
versus
FEDERAL BUREAU OF INVESTIGATION (FBI), U.S. DEPARTMENT OF JUSTICE, STATE OF FLORIDA KATHERINE FERNANDEZ-RUNDELL, in her official capacity as Miami Dade County State Attorney,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(December 14, 2010)
Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.
PER CURIAM: Proceeding pro se, Appellant Steven Leonard appeals the district court’s
dismissal of his complaint under 42 U.S.C. § 1983 against the Federal Bureau of
Investigation (“FBI”), the U.S. Department of Justice (“DOJ”), the State of
Florida, and the state attorney for Miami-Dade County, Florida. Construing his
brief and his complaint liberally, Leonard argues that the defendants maliciously
prosecuted him for exercising his First Amendment right of access to public
records, his right to request information under the Freedom of Information Act
(“FOIA”), and his right under 18 U.S.C. § 245 to freedom from intimidation for
exercising his federally protected rights. Additionally, Leonard argues that the
district court failed to construe the complaint liberally and that the dismissal of the
complaint deprived Leonard of his First Amendment right to petition the
government to redress his grievance.
We review de novo the district court’s order of dismissal under 28 U.S.C. §
1915(e)(2)(B)(ii) of an in forma pauperis complaint, and we accept as true the
complaint’s well-pleaded factual allegations. Mitchell v. Farcass, 112 F.3d 1483,
1489-90 (11th Cir. 1997). We may affirm on any ground supported in the record
even if that ground was not relied upon or considered by the district court.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Finally,
“[p]ro se pleadings are held to a less stringent standard than pleadings drafted by
2 attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The district court must dismiss an in forma pauperis complaint that “fails to
state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).
Dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as a
dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mitchell,
112 F.3d at 1490. Dismissal for failure to state a claim is appropriate if the facts
as pleaded fail to state a claim for relief that is “plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (Rule
12(b)(6) dismissal). The “plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)
(alteration and citation omitted).
Section 1983 requires the plaintiff to show that he “was deprived of a
federal right by a person acting under color of state law.” Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001); see 42 U.S.C. § 1983. “Section
1983 creates no substantive rights; it merely provides a remedy for deprivations of
federal statutory and constitutional rights.” Almand v. DeKalb County, Ga., 103
3 F.3d 1510, 1512 (11th Cir. 1997). Although Section 1983 applies only to state
officials, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29
L. Ed. 2d 619 (1971), provides a parallel remedy for the deprivation of rights by a
federal official. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). We
generally apply the same law to both Bivens and Section 1983 cases. Id. Liberally
construed, the complaint alleges a Bivens claim against the federal defendants and
a Section 1983 claim against the Florida defendants. The complaint also alleges
that the defendants were acting under color of state law; thus, the sole issue is
whether the defendants deprived Leonard of a federally protected right.
Despite the existence of the § 1983 remedy, “habeas corpus [rather than
§ 1983] is the exclusive remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release.” Bradley v.
Pryor, 305 F.3d 1287, 1289 (11th Cir. 2002) (citing Preiser v. Rodriguez, 411
U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)). This rule applies to an action
for damages under § 1983 if a judgment in the plaintiff’s favor “would necessarily
imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S.
477, 487, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). In either
circumstance, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has been “reversed on direct appeal,
4 expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Id. However, this rule necessarily applies only if “there
exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an
‘outstanding criminal judgment.’” Wallace v. Kato, 549 U.S. 384, 393, 127 S. Ct.
1091, 1097-98, 166 L. Ed. 2d 973 (2007). Stated differently, Heck does not bar
“an action which would impugn an anticipated future conviction.” Id.
Although Leonard asserts an array of constitutional and statutory violations
by the defendants, the substance of Leonard's complaint alleges that the
defendants violated the Fourth Amendment by maliciously prosecuting Leonard
for attempting to exercise his federal rights. To prove malicious prosecution under
§ 1983, Leonard must allege “(1) the elements of the common law tort of
malicious prosecution, and (2) a violation of [his] Fourth Amendment right to be
free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220,
1234 (11th Cir. 2004). To establish the common law tort of malicious prosecution
under Florida law, Leonard must allege that (1) a judicial proceeding was
commenced or continued against him; (2) the defendants were the legal cause of
the original proceeding; (3) the termination of the original proceeding constituted
a bona fide termination of that proceeding in Leonard’s favor; (4) no probable
5 cause existed for the original proceeding; (5) the defendants acted with malice;
and (6) Leonard suffered damage as a result of the proceeding. Id.
Because Leonard’s state-court criminal prosecution is ongoing, we conclude
from the record that the district court erred by dismissing the complaint based on
Heck, which bars a § 1983 claim based on an extant conviction but has no
application to an anticipated future conviction. See Wallace, 549 U.S. at 393, 127
S. Ct. at 1098. Nevertheless, we conclude that the district court properly
dismissed the complaint in this case because Leonard’s malicious prosecution
claim ripens only if the state-court criminal proceeding is terminated in his favor.
See Heck, 512 U.S. at 484, 114 S. Ct. at 2371 (“One element that must be alleged
and proved in a malicious prosecution action is termination of the prior criminal
proceeding in favor of the accused.”). In other words, because Leonard failed to
allege the termination in his favor of the state-court criminal prosecution, Leonard
failed to state a claim for malicious prosecution. Accordingly, we affirm the
district court’s dismissal of Leonard’s complaint.
AFFIRMED.