Filed: May 16, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 16, 2008 THOMAS K. KAHN No. 07-12931 CLERK Non-Argument Calendar _ D. C. Docket No. 06-04662-CV-AR-S-TMP JIMMY DOYLE HINDMAN, Plaintiff-Appellant, versus PAUL HEALY, F.B.I. Agent in official capacity, JEFFERY DOWDY, F.B.I. Agent in official capacity, HEATHER SEUBERT, F.B.I. Agent in official capacity, RANDY KING, Deputy, JOHN SHROPSHIRE, et al., Defendants-Appellees.
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MAY 16, 2008 THOMAS K. KAHN No. 07-12931 CLERK Non-Argument Calendar _ D. C. Docket No. 06-04662-CV-AR-S-TMP JIMMY DOYLE HINDMAN, Plaintiff-Appellant, versus PAUL HEALY, F.B.I. Agent in official capacity, JEFFERY DOWDY, F.B.I. Agent in official capacity, HEATHER SEUBERT, F.B.I. Agent in official capacity, RANDY KING, Deputy, JOHN SHROPSHIRE, et al., Defendants-Appellees. ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 16, 2008
THOMAS K. KAHN
No. 07-12931
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 06-04662-CV-AR-S-TMP
JIMMY DOYLE HINDMAN,
Plaintiff-Appellant,
versus
PAUL HEALY,
F.B.I. Agent in official capacity,
JEFFERY DOWDY,
F.B.I. Agent in official capacity,
HEATHER SEUBERT,
F.B.I. Agent in official capacity,
RANDY KING,
Deputy,
JOHN SHROPSHIRE,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(May 16, 2008)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Appellant Jimmy Doyle Hindman appeals the district court’s dismissal of his
pro se complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983
and 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). He brought suit against Federal
Bureau of Investigation (“FBI”) agent Paul Healy, FBI agent Jeffery Dowdy, FBI
Analyst Heather Seubert, Deputy Randy King of the Limestone Co. Police
Department, Court Reporter Christina Decker, and five other individuals alleging
violations of his First, Fourth, Fifth, Sixth, and Fourteenth Amendment rights.
Hindman alleged that the defendants engaged in activities designed to elicit
fraudulent statements in order to obtain search warrants for his house and person,
to arrest him, and to use at his criminal trial.
I.
We review de novo the district court’s order of dismissal pursuant to 28
U.S.C. § 1915A, taking the allegations in the complaint as true. Boxer X v. Harris,
437 F.3d 1107, 1110 (11th Cir. 2006), cert. denied,
127 S. Ct. 1908 (2007).
The standards that apply to a dismissal under Fed.R.Civ.P. 12(b)(6) apply to
a dismissal under § 1915A(b)(1). Jones v. Bock, 549 U.S. 199, ___,
127 S. Ct.
2
910, 920-21,
166 L. Ed. 2d 798 (2007); see also Leal v. Georgia Dep't of Corr.,
254 F.3d 1276, 1278-79 (11th Cir. 2001) (finding that the language in §
1915A(b)(1) "mirrors" the language in dismissals under 28 U.S.C. §
1915(e)(2)(B)(ii) which "tracks" the language in Fed.R.Civ.P. 12(b)(6)). "A
complaint is subject to dismissal for failure to state a claim if the allegations, taken
as true, show the plaintiff is not entitled to relief." Jones, 549 U.S. at __, 127 S.
Ct. at 920. A plaintiff's factual allegations, when assumed to be true, "must be
enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v.
Twombly, __ U.S. __,
127 S. Ct. 1955, 1965,
167 L. Ed. 2d 929 (2007). An
allegation must plausibly suggest, and not merely be consistent with, a violation of
the law. Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 974 n.43 (11th
Cir. 2008) (quoting
Twombly, 127 S. Ct. at 1966).
We hold pro se pleadings to a less stringent standard than pleadings drafted
by attorneys, however, and construe them liberally. Boxer X, 437 F.3d at 1110.
We may affirm a decision of the district court on any ground supported by the
record. Bircoll v. Miami-Dade County,
480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
Every person who, under color of any statute of any state subjects or causes
to be subjected a citizen of the United States to the deprivation of any rights,
privileges or immunities secured by the Constitution and laws, shall be liable to the
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injured party. 42 U.S.C. § 1983. Section 1983 does not apply to federal actors
acting under color of federal law. District of Columbia v. Carter, 409 U.S. 418,
424-25,
93 S. Ct. 602, 606,
34 L. Ed. 2d 613 (1973). Bivens provides a remedy for
constitutional violations when federal actors are involved, but not federal agencies.
Bivens, 403 U.S. at 397, 91 S. Ct. at 2005; F.D.I.C. v. Meyer,
510 U.S. 471, 486,
114 S. Ct. 996, 1006,
127 L. Ed. 2d 308 (1994). Bivens actions are brought
directly under the Constitution where no alternative methods of obtaining redress
exist. Hardison v. Cohen,
375 F.3d 1262, 1264 (11th Cir. 2004). We have stated
that “[a] Bivens action is analogous to § 1983 suits against state and local officers.”
Smith ex rel. Smith v. Siegelman,
322 F.3d 1290, 1297 n.15 (11th Cir. 2003).
The Supreme Court has held that a claim for damages under § 1983 is not
cognizable where success on the claim would render the underlying conviction or
sentence invalid. Heck v. Humphrey, 512 U.S. 477, 486-87,
114 S. Ct. 2364, 2372,
129 L. Ed. 2d 383 (1994). The same holds true of actions brought under Bivens.
Abella v. Rubino,
63 F.3d 1063, 1065 (11th Cir. 1995). Heck does not generally
bar claims under the Fourth Amendment for an illegal search, but it can bar a suit
where the Fourth Amendment claim would negate an element of the offense.
Hughes v. Lott,
350 F.3d 1157, 1161, 1160 n.2 (11th Cir. 2003).
In Heck, the Supreme Court noted that § 1983 created a species of tort
4
liability and that analyzing a claim is similar to analyzing the underlying tort.
Heck, 512 U.S. at 483, 114 S. Ct. at 2370-71. In Heck, the Supreme Court likened
the suit at issue in that case to one for malicious prosecution, and noted that
permitting a convicted criminal defendant to proceed with a malicious prosecution
claim would permit a collateral attack on the conviction through a civil suit.
Id. at
484, 114 S.Ct. at 2371. In the interest of finality and consistency, the Supreme
Court has generally declined to expand opportunities for collateral attack.
Id.
In Abella, the plaintiff brought a suit under Bivens against various
defendants including federal judges, U.S. Customs and DEA officials, court
reporters and others and alleged that the defendants conspired to convict him
falsely by fabricating testimony and other evidence against him in violation of his
Fifth, Sixth and Eighth Amendment Rights.
Abella, 63 F.3d at 1064. We held that
Abella’s claims rested on the contention that the defendants unconstitutionally
conspired to convict him of crimes he did not commit and judgment in favor of
him on these claims would necessarily imply the invalidity of his conviction.
Id. at
1065.
Because success on Hindman’s claims would necessarily result in the
invalidity of his conviction, we conclude that the district court properly dismissed
as barred by Heck claims 1 - 25 and 27 - 40.
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II.
“We review standing determinations de novo.” Tanner Adver. Group,
L.L.C. v. Fayette County, Georgia, 451 F.3d 777, 784 (11th Cir. 2006) (en banc).
“A plaintiff who invokes the jurisdiction of a federal court bears the burden
to show [the Constitutional limitations on standing:] ‘(1) an injury in fact, meaning
an injury that is concrete and particularized, and actual or imminent, (2) a causal
connection between the injury and the causal conduct, and (3) a likelihood that the
injury will be redressed by a favorable decision.'" Tanner Adver. Group, 451 F.3d
at 791 (citation omitted).
Because Hindman did not assert a violation of his constitutional rights, we
conclude that he did not have standing to bring claim 26 for a violation of his
acquaintance’s right to privacy.
III.
Hindman argues that the district court failed to consider his claim that
Decker, the court reporter, defrauded him out of $89.00 and intentionally delivered
a false transcript of the April 2006 hearing.
Under the Court Reporter Act, 28 U.S.C. § 753(b), all proceedings in
criminal cases must be recorded verbatim. 28 U.S.C. § 753(b). Prisoners have a
right of access to the court files of their underlying criminal proceedings but this
6
right does not attach until a prisoner has made a showing that such files are
necessary to the resolution of an issue or issues he has presented in a non-frivolous
pending collateral proceeding. Hansen v. U.S., 956 F.2d 245, 248 (11th Cir. 1992).
The normal remedy for a violation of 753(b) is reversal and a new trial if there is a
showing of a prejudicial effect on appeal. See White v. State of Fla. Dept. of
Corrections,
939 F.2d 912, 914 n. 4 (11th Cir. 1991).
The Federal Torts Claim Act (“FTCA”) provides a limited waiver of
sovereign immunity making the United States liable for injury “caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment,” under circumstances where
the United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b).
Under § 2680(h), however, a number of claims are exempted from the waiver of
sovereign immunity including those arising out of misrepresentation, deceit, or
interference with contract rights. JBP Acquisitions, LP v. U.S. ex rel. F.D.I.C., 224
F.3d 1260, 1264 (11th Cir. 2000).
Regardless of whether the district court explicitly or implicitly considered
this claim, the claim is due to be dismissed because Hindman failed to state a
claim. Neither of Hindman’s claims regarding Decker support a federal cause of
7
action. Without a basis for a constitutional violation, Hindman cannot state a claim
under Bivens. Moreover, Hindman cannot support a claim under § 1983 because
he alleged that Decker was a federal actor, not a state actor. Accordingly, the
district court properly dismissed this claim.
IV.
“We review de novo questions concerning jurisdiction.” Williams v.
Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). We are “obligated to inquire into
subject matter jurisdiction sua sponte whenever it may be lacking.” Bochese v.
Town of Ponce Inlet,
405 F.3d 964, 975 (11th Cir. 2005). We generally review the
denial of a motion to amend a complaint for an abuse of discretion but review
questions of law de novo. Williams v. Board of Regents of Univ. Sys. of Georgia,
477 F.3d 1282, 1291 (11th Cir. 2007).
Fed.R.App.P. 3(c) requires that a notice of appeal “designate the judgment,
order or part thereof appealed from” and ordinarily the failure to abide by this
requirement “will preclude the appellate court from reviewing any judgment or
order not so specified.” McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir.
1986). We have liberally allowed appeals from orders not expressly designated in
the notice of appeal at least where the order was entered prior to or
contemporaneously with the order(s) properly designated in the notice of appeal.
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Id. Appellate Rule 3(c) “requires that a notice of appeal designate an existent
judgment or order, not one that is merely expected or that is, or should be, within
the appellant’s contemplation when the notice of appeal is filed.” Bogle v. Orange
County Bd. of County Comm’rs,
162 F.3d 653, 661 (11th Cir. 1998).
Because the notice of appeal failed to include the order denying the second
motion to amend, we conclude that we lack jurisdiction to consider the order on
appeal.
For the aforementioned reasons, we affirm the judgment of dismissal.
AFFIRMED.
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