Filed: Jul. 19, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15422 ELEVENTH CIRCUIT JULY 19, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-02653-CV-ODE-1 GREGORY C. KAPORDELIS, as individual and as owner of Kapordelis Management Systems, Inc., Plaintiff-Appellant, versus AARON M. DANZIG, WILLIAM L. MCKINNON, JR, ROBERT C. MCBURNEY, E. VAUGHN DUNNIGAN, CORY BRANT, et al., Defendants-Appellees. _ Appeal from the United State
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15422 ELEVENTH CIRCUIT JULY 19, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 09-02653-CV-ODE-1 GREGORY C. KAPORDELIS, as individual and as owner of Kapordelis Management Systems, Inc., Plaintiff-Appellant, versus AARON M. DANZIG, WILLIAM L. MCKINNON, JR, ROBERT C. MCBURNEY, E. VAUGHN DUNNIGAN, CORY BRANT, et al., Defendants-Appellees. _ Appeal from the United States..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15422 ELEVENTH CIRCUIT
JULY 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-02653-CV-ODE-1
GREGORY C. KAPORDELIS,
as individual and as owner of
Kapordelis Management Systems, Inc.,
Plaintiff-Appellant,
versus
AARON M. DANZIG,
WILLIAM L. MCKINNON, JR,
ROBERT C. MCBURNEY,
E. VAUGHN DUNNIGAN,
CORY BRANT, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 19, 2010)
Before EDMONDSON, BIRCH and CARNES, Circuit Judges.
PER CURIAM:
Gregory C. Kapordelis, a federal prisoner proceeding pro se, appeals from
the district court’s dismissal of his Bivens civil action against several federal
prosecutors and Immigration and Customs Enforcement agents who had been
involved in his criminal case. See Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388,
91 S. Ct. 1999 (1971). Kapordelis, an
anesthesiologist, was arrested at the airport in New York and initially charged with
traveling in foreign commerce to have sex with a minor, based on complaints that
he had drugged and molested underage boys in Russia. ICE agents obtained a
warrant and searched his home in Gainesville, Georgia, and found numerous
images and videos of child pornography on his computers. Kapordelis had
produced some of this material himself, taking sexually explicit pictures of his
eleven-year-old cousin while the boy slept, and also of a fourteen-year-old patient
whom he had drugged. Charges related to the Russian allegations were later
dropped, and Kapordelis was tried and convicted only on the child pornography
counts. We affirmed his conviction and 35-year sentence on direct appeal. United
States v. Kapordelis,
569 F.3d 1291, 1319 (11th Cir. 2009).
In this Bivens action, Kapordelis argues that the government acted
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maliciously and without probable cause in arresting him, obtaining the search
warrant, and indicting him on the Russian charges, even though it supposedly
knew that the information it obtained from Russian authorities and witnesses was
unreliable. Kapordelis filed this action in the Eastern District of New York, which
sua sponte transferred the case to the Northern District of Georgia, the court in
which the criminal prosecution had taken place. That court, in turn, dismissed his
Bivens claim as barred by Heck v. Humphrey, 512 U.S. 477,
114 S. Ct. 2364
(1994). Kapordelis appeals both the transfer and the dismissal.
I.
We review a district court’s decision to dismiss or transfer a case for
improper venue for abuse of discretion. See Algodonera De Las Cabezas, S.A. v.
Am. Suisse Capital, Inc., 432 F.3d 1343, 1345 (11th Cir. 2005). When the
defendants do not all reside in the same state, venue is proper in a judicial district
“in which a substantial part of the events or omissions giving rise to the claim
occurred.” 28 U.S.C. § 1391(b). In some cases, venue will be proper in more than
one district. Jenkins Brick Co. v. Bremer,
321 F.3d 1366, 1371 (11th Cir. 2003).
“Only the events that directly give rise to a claim are relevant.”
Id. Events that
lack a close nexus with the cause of action are irrelevant.
Id. at 1372–73. If a case
is filed in the wrong district, the court must dismiss the case, or, in the interests of
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justice, transfer the case to any district in which it could have been brought. 28
U.S.C. § 1406(a).
By transferring the case pursuant to§ 1406(a), the New York court implicitly
found that venue was improper in New York. We agree with that conclusion.
Kapordelis was prosecuted and convicted in the Northern District of Georgia, and
the search warrant that led to the discovery of the child pornography was obtained
from a magistrate judge in that district and executed at his home there. If ICE
agents acted improperly in investigating the Russian allegations, they did so in
Russia, not in New York. Only three events occurred in New York: his initial
interview with ICE agents at the airport, his arrest there, and a four-day detention
before he posted bond and returned to Georgia. The arrest and detention do not
“give rise” to the claims in Kapordelis’s complaint that the government
maliciously investigated his case, fabricated evidence, and fraudulently presented
that evidence to the grand jury. The interview has relevance to those claims, but it
is not, standing alone, a “substantial” part of the events giving rise to them when
viewed alongside everything else that happened in Georgia and overseas.
Furthermore, even if venue could have been established in New York, transfer to
the Northern District of Georgia—where most of the defendants reside and where
the court is already familiar with the facts underlying the claim—was appropriate
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for the convenience of parties and witnesses and in the interest of justice. See 28
U.S.C. § 1404(a).
II.
We review de novo a district court’s decision to dismiss a prisoner’s civil
claim under 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). Section 1915A of the
Prison Litigation Reform Act requires a district court to conduct an initial review
of “a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.”
Id.
§ 1915A(a). The court must dismiss the complaint if it “is frivolous, malicious, or
fails to state a claim upon which relief may be granted.”
Id. § 1915A(b)(1).
Kapordelis’s complaint, a thinly disguised attempt to resurrect issues that were
thoroughly litigated and resolved against him in his criminal case, is all three.
A prisoner’s non-habeas civil action is barred by Heck v. Humphrey, 512
U.S. 477,
114 S. Ct. 2364 (1994), if “success in that action would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,
544 U.S. 74, 81–82,
125 S. Ct. 1242, 1248 (2005); Abella v. Rubino,
63 F.3d 1063,
1065 (11th Cir. 1995) (holding that Heck applies equally to Bivens actions by
federal prisoners). Kapordelis’s Bivens action for malicious prosecution is barred
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from the outset if the direct or indirect effect of success on that claim would be to
call into question the validity of his conviction and sentence. See Harden v. Pataki,
320 F.3d 1289, 1295 (11th Cir. 2003). Kapordelis argues that he is not directly
attacking his convictions and sentences for child pornography. Instead, he says he
is only challenging the government’s actions pertaining to other counts of child
molestation which were ultimately dismissed. He contends that this Court’s
decision in Uboh v. Reno,
141 F.3d 1000 (11th Cir. 1998), allows him to proceed
with a malicious prosecution claim based on the dismissed counts even though he
was convicted on other counts. In Uboh, the defendant was indicted on drug
charges, which were later dismissed by the government, and was ultimately
convicted for credit card fraud.
Id. at 1001. Uboh brought a Bivens action alleging
that the government knowingly used false evidence to obtain a wiretap and
prosecute him on the drug charges.
Id. We allowed his malicious prosecution
claim to proceed because the drug charges were terminated in his favor, and the
counts on which he was convicted were entirely different offenses that were tried
in a separate proceeding.
Id. at 1005–06. Uboh is distinguishable because it did
not present a Heck issue. The convictions for credit card fraud did not depend on
evidence obtained by the government’s allegedly improper actions during its drug
investigation, so success on a Bivens claim based on those actions would not have
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called Uboh’s convictions into question. See id.
Here, by contrast, the initial allegations of child abuse in Russia were the
foundation for the search warrant which led to the discovery of the child
pornography in Georgia. Kapordelis’s complaints about the government’s conduct
are the same that he made at great length in his criminal case—that the government
acted maliciously because it knew that the information from Russia was unreliable
and therefore was aware that it lacked probable cause for the arrest warrant, the
search warrant, and the subsequent grand jury indictment. On direct appeal, we
rejected that argument with regard to the search warrant, and concluded that the
government had established probable cause for it.
Kapordelis, 569 F.3d at
1311–12. The evidence offered by the government to support the arrest warrant
and the indictment was essentially the same as what it offered for the search
warrant. Success in this Bivens action would necessarily imply the invalidity of
the search warrant and therefore of the resulting child pornography convictions.
Accordingly, we affirm the dismissal of Kapordelis’s complaint as Heck-barred.
See
Harden, 320 F.3d at 1295.
AFFIRMED.
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