Guillermo Sanchez Salazar v. U.S. Attorney General , 476 F. App'x 383 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11877 MAY 7, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 1:11-cv-20280-CMA
GUILLERMO SANCHEZ SALAZAR,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
U.S. ATTORNEY GENERAL,
D.E.A.,
F.B.I.,
U.S. COAST GUARD,
U.S. CUSTOMS,
et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 7, 2012)
Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
PER CURIAM:
Guillermo Salazar, proceeding pro se, appeals the district court’s dismissal
of his complaint asserting a claim under Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
On appeal, Salazar argues that the government withheld exculpatory evidence
from him. For the reasons set forth below, we affirm the district court’s dismissal
of Salazar’s complaint.
I.
In a 42 U.S.C. § 1983 complaint filed against a number of government
agencies, three Assistant United States Attorneys, three Assistant Federal Public
Defenders, and an investigator, Salazar alleged that the government intentionally
and maliciously failed to provide discovery and exculpatory evidence regarding a
confidential informant. Salazar further alleged that the government may have
entrapped him. The entrapment and lack of discovery led to an unconstitutional
sentence. Finally, he asserted that, if he could obtain the withheld evidence, he
would be able to show that he received ineffective assistance of counsel. Salazar
demanded discovery, an investigative report, an investigation of the new evidence,
money damages for the damage and prejudice he suffered, and a jury trial under
the Seventh Amendment.
Salazar was permitted to proceed in forma pauperis. The magistrate judge
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reviewed Salazar’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) and
recommended that the complaint be dismissed for failing to state a claim. The
magistrate construed the complaint as a Bivens action and concluded that Salazar
was attempting to collaterally attack his criminal conviction. Claims attacking
“the fact or duration of a criminal defendant’s confinement” were to be brought in
a petition for habeas corpus, not in a civil rights action. When a prisoner brought
a claim attacking his confinement in a civil rights action, the complaint had to be
dismissed unless the conviction was reversed, expunged, or questioned in a writ of
habeas corpus. After de novo review, the district court accepted the report and
recommendation and dismissed the complaint for failure to state a claim upon
which relief could be granted.
II.
We review “a dismissal for failure to state a claim under [28 U.S.C.]
§ 1915(e)(2)(B)(ii) de novo.” Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir.
2002). When a plaintiff proceeds in forma pauperis, “the court shall dismiss the
case at any time if the court determines that the action or appeal fails to state a
claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Because
this language tracks the language in Federal Rule of Civil Procedure 12(b)(6), we
apply the standards of Rule 12(b)(6) in reviewing § 1915(e)(2)(B)(ii) dismissals.
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Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). In reviewing a
dismissal for failure to state a claim, we construe “the complaint in the light most
favorable to the plaintiff and accept[s] as true all facts which the plaintiff alleges.”
Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005) (reviewing a dismissal under
Rule 12(b)(6)). A complaint should be dismissed only where “the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.” Id.(quotation omitted).
A plaintiff asserts a Bivens claim when he alleges that “federal officers,
acting under color of federal law,” acted unconstitutionally. Abella v. Rubino, 63
F.3d 1063, 1065 (11th Cir. 1995) (quotation omitted). A Bivens action is
analogous to complaints brought against state actors under 42 U.S.C. § 1983, and
courts generally apply § 1983 law in Bivens actions. Id. In a § 1983 suit, the
Supreme Court held
that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, 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, 28 U.S.C. § 2254.
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 3834
(1994). Under this rule, if “a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence,” the complaint is to be
dismissed unless “the conviction or sentence has already been invalidated.” Id. at
487, 114 S.Ct. at 2372. On the other hand, if judgment in favor of the plaintiff
“will not demonstrate the invalidity of any outstanding criminal judgment,” the
action may proceed. Id. Heck applies to Bivens claims. Abella, 63 F.3d at 1065.
The Supreme Court has noted that a Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963), claim cannot be brought in a § 1983 suit.
Skinner v. Switzer, 562 U.S. ___, 131 S.Ct. 1289, 1300, 179 L.Ed.2d 233 (2011).
To prove a Brady claim, a petitioner must show: (1) that the state suppressed
evidence (2) that was favorable to the petitioner and (3) that the petitioner was
prejudiced. Skinner, 562 U.S. at ___, 131 S.Ct. at 1300. Such evidence
necessarily undermines the petitioner’s conviction because the “evidence is, by
definition, always favorable to the defendant and material to his guilt or
punishment.” Id. Thus, Brady claims are to be brought in a petition for habeas
corpus, not in a § 1983 suit. Id.
In contrast, a prisoner may seek physical evidence to test the evidence for
DNA through a § 1983 suit because success on the plaintiff’s part would not show
that his conviction or sentence was invalid. Skinner, 562 U.S. at ___, 131 S.Ct. at
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1293; Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002). Rather, judgment
in the plaintiff’s favor would merely give him access to the evidence. Skinner,
562 U.S. at ___, 131 S.Ct. at 1293; Bradley, 305 F.3d at 1290. The evidence
obtained “may prove exculpatory, inculpatory, or inconclusive,” but simply
obtaining access to that evidence would “[i]n no event . . . necessarily impl[y] the
unlawfulness of the [s]tate’s custody.” Skinner, 562 U.S. at ___, 131 S.Ct. at 1293(quotation omitted).
Here, the district court properly dismissed Salazar’s complaint.1 Success on
Salazar’s part would necessarily imply that his conviction was invalid. See Heck,
512 at 487, 114 S.Ct. at 2372. In his complaint, Salazar asserted the essential
elements of a Brady claim: he asserted that the prosecution intentionally and
maliciously withheld exculpatory evidence from him, which prejudiced him. See
Skinner, 562 U.S. at ___, 131 S.Ct. at 1300. This exculpatory evidence would
necessarily undermine his conviction. See Skinner, 562 U.S. at ___, 131 S.Ct. at
1300. Accordingly, Salazar failed to state a claim cognizable in a Bivens action.
For the foregoing reasons, we affirm the district court’s dismissal of
Salazar’s complaint.
1
The district court was also correct that Salazar has actually asserted a Bivens claim, not a
§ 1983 claim, because Salazar sued federal, not state, officials. See Abella, 63 F.3d at 1065.
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AFFIRMED.
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