Michael Trupei v. United States

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 18, 2008
No. 07-15240 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-60216-CV-MGC

MICHAEL TRUPEI,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA,
U.S. DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT ADMINISTRATION,
U.S. PAROLE COMMISSION,
CITY OF FT. LAUDERDALE POLICE DEPARTMENT, et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(December 18, 2008)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
 Michael Trupei, a federal prisoner proceeding pro se, appeals the dismissal

of his civil rights complaint, brought pursuant to the Federal Tort Claims Act

(“FTCA”), 28 U.S.C. §§ 1346(b), 2671 et seq. and Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d

619 (1971), for failure to state a claim upon which relief could be granted, pursuant

to 28 U.S.C. § 1915(e)(2)(B)(ii). On appeal, Trupei argues that the district court

erred in dismissing his complaint without first issuing a summons under

Fed.R.Civ.P. 4 because his initial motion to proceed in forma pauperis (“IFP”) was

granted and he paid part of the filing fee. In his brief on appeal, Trupei asserts that

false testimony was given in his grand jury proceedings. Trupei also submits that

former U.S. Attorney Dexter W. Lehtinen was unconstitutionally appointed,

Assistant U.S. Attorneys (“AUSAs”), Robert J. Lehner and James M. Lord, were

not appointed by their superiors at the Department of Justice (“DOJ”), and AUSA

Michael Walleisa was unlawfully sworn in by Lehtinen. Because these

appointments were invalid, Trupei argues, the trial court did not have jurisdiction

over his case. In the conclusion of his brief, Trupei submits that his complaint did

not otherwise fail to state a claim. For the reasons set forth below, we affirm.

I.

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A jury convicted Trupei in Florida on one count of conspiracy to possess

phenylacetone, a controlled substance, with intent to distribute and to manufacture

and distribute methamphetamine. United States v. Hogan, 986 F.2d 1364, 1367

(11th Cir. 1993). On appeal, we affirmed Trupei’s conviction. Id. at 1375-76.

In late 2006, Trupei submitted a pro se civil complaint, which is at issue in

this case, under the FTCA and Bivens against: (1) the United States; (2) the DOJ;

(3) the Drug Enforcement Administration; (4) the U.S. Parole Commission; (5) the

City of Fort Lauderdale Police Department; (6) Lehtinen, former U.S. Attorney;

(7) Lehner, AUSA; (8) Lord, AUSA; (9) Mark J. Bumar, DEA agent; (10) Alfred

J. Scotti, Fort Lauderdale police detective; and (11) Cherry L. McBrayer, U.S.

Probation Officer.

Trupei generally alleged that the defendants falsely caused him to be

indicted, tried, convicted, and imprisoned. Specifically, he alleged that (1) he was

falsely arrested; (2) he was falsely imprisoned; (3) the defendants violated his due

process rights by withholding exculpatory evidence; (4) the defendants committed

fraud by providing the grand jury with false information; (5) the defendants

withheld exculpatory evidence in breach of contract; (6) the defendants negligently

withheld exculpatory evidence; (7) the defendants recklessly withheld exculpatory

evidence; (8) the defendants appeared before the grand jury without the required

3
authorization; (9) Lehtinen, Lehner, and Lord engaged in abuse of process by

prosecuting Trupei without authorization; and (10) the defendants were in

dereliction of duty by failing to produce exculpatory evidence. Trupei sought,

inter alia, an order dismissing the indictment, $100 million in actual damages, and

other punitive damages.

In conjunction with his complaint, Trupei moved to proceed IFP. The

district court granted Trupei’s motion to proceed IFP to the extent that he was not

required to prepay the costs and fees of the case, but it ordered him to pay a portion

of the filing fee and to continue to make payments until he had paid the entire fee.

A magistrate judge then issued a report and recommendation (“R&R”) and

recommended dismissing Trupei’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii)

for failure to state a claim upon which relief could be granted. The magistrate

found that Trupei had raised no cognizable FTCA or Bivens claims. With respect

to the FTCA, the magistrate first found that the FTCA permits claims only against

the United States and provides individual federal employees with immunity from

personal tort liability. The magistrate set out that the United States generally has

waived its sovereign immunity for tort liability under the FTCA, but noted that, in

28 U.S.C. § 2680(h), the FTCA contains exceptions where the United States retains

its sovereign immunity for claims arising out of assault, battery, false

4
imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,

misrepresentation, deceit, or interference with contract rights. The magistrate

concluded that all of Trupei’s claims were essentially claims that arose out of the

torts listed in 28 U.S.C. § 2680(h). In addition, the magistrate noted that 28 U.S.C.

§ 2680(a) exempts the government from liability for acts of prosecutorial

discretion, and it concluded that the decision to prosecute Trupei, the appointment

of prosecutors, and the decision to disclose exculpatory material were acts of

prosecutorial discretion. Therefore, the magistrate found that Trupei’s claims that

were based on acts of prosecutorial discretion were barred under 28 U.S.C.

§ 2680(a). Accordingly, the magistrate recommended that Trupei’s claims brought

under the FTCA be dismissed for lack of subject matter jurisdiction.

With respect to Trupei’s Bivens claims, the magistrate found that the claims

arising out of Trupei’s conviction and sentence attacked the legality of his

conviction and sentence, such that they were foreclosed under Heck v. Humphrey,

512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) and its progeny.

Accordingly, the magistrate recommended dismissing Trupei’s complaint for

failing to state a claim upon which relief could be granted, pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii).

Trupei filed objections to the magistrate’s R&R, arguing that the magistrate

5
improperly ruled against him without first ordering the summons and complaint to

be served on the defendants. He argued that, because the court granted his motion

to proceed IFP, the court should have directed the clerk of court to issue the

summons and complaint on the defendants.

The district court affirmed and adopted the magistrate’s R&R and dismissed

Trupei’s complaint for failure to state a claim upon which relief could be granted.

Trupei filed a motion for reconsideration, pursuant to Fed.R.Civ.P. 59(e),

arguing that the magistrate should have judged the sufficiency of his complaint in

considering his IFP motion and should not have ordered him to pay a partial filing

fee if the complaint failed to state a claim. He also argued that his claims were

meritorious, and he realleged that the defendants violated and continued to violate

his substantial rights. Trupei argued that the magistrate violated Fed.R.Civ.P. 4(a)

by failing to issue the summons, and he sought to have the summons and the

complaint served on the defendants to allow them to respond before the court

evaluated his complaint.

The district court denied the motion for reconsideration, again finding that

the dismissal of Trupei’s complaint was proper for the reasons set out in the

magistrate’s R&R. Thereafter, Trupei filed a notice of appeal, identifying only the

denial of his motion for reconsideration.

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 II.

As an initial matter, even though Trupei’s notice of appeal referenced only

the denial of his motion for reconsideration, we will construe the notice of appeal

to appeal the dismissal of his complaint as well. See Kicklighter v. Nails by

Jannee, Inc., 616 F.2d 734, 738-39 n.1 (5th Cir. 1980) (indicating that a notice of

appeal stating that it appeals an order on a tolling post-judgment motion should be

construed as an appeal from the underlying order and not merely from the denial of

a post-trial motion).

We review the dismissal of a complaint for failure to state a claim under 28

U.S.C. § 1915(e)(2)(B)(ii) de novo. Bilal v. Driver, 251 F.3d 1346, 1348-49 (11th

Cir. 2001). “The standards governing dismissals under Rule 12(b)(6) apply to

§ 1915(e)(2)(B)(ii).” Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir.), petition

for cert. filed, (U.S. Sept. 19, 2008) (No. 08-6426). We view the allegations in the

complaint as true and construe pro se complaints liberally. Douglas v. Yates, 535

F.3d 1316, 1319-20 (11th Cir. 2008). “We review the denial of a motion to alter or

amend a judgment under Rule 59(e) for abuse of discretion.” Shuford v. Fidelity

Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007).

A. Dismissal Despite Trupei’s IFP Status and Partial Payment of the Filing
Fee

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 In Herrick v. Collins, 914 F.2d 228 (11th Cir. 1990), we considered a

situation where a district court sua sponte dismissed a civil rights complaint as

frivolous, after requiring the plaintiffs, who were prisoners proceeding pro se, to

pay a partial filing fee. 914 F.2d at 229. We concluded that the district court

should have determined whether the complaint was frivolous before it ordered the

plaintiffs to pay a partial filing fee and held that, under 28 U.S.C. § 1915(d), “when

the district court has granted an in forma pauperis motion and required payment of

a partial filing fee, the court must issue the summons.” Id. at 229-30. We reasoned

that Fed.R.Civ.P. 4(a) required the summons to be issued as soon as the filing fee

was paid when an ordinary complaint was filed and that nothing in § 1915(d)

required a different result when a plaintiff proceeding IFP paid a partial filing fee.

Id. at 230. Accordingly, we vacated the district court’s order and instructed the

court to reinstate the action and to direct the issuance of a summons on the

defendants. Id. We offered no opinion as to the merits of the complaint. Id. at

229.

Here, the district court did not err in dismissing Trupei’s complaint, despite

the fact that he was granted leave to proceed IFP and had been required to pay a

partial filing fee. Under the current version of 28 U.S.C. § 1915, such a practice is

permitted. Trupei’s reliance on Herrick is misplaced because both 28 U.S.C.

8
§ 1915 and Fed.R.Civ.P. 4 have been significantly altered since the opinion was

issued. In 1990, the year Herrick was decided, 28 U.S.C. § 1915 provided, “The

court . . . may dismiss the case if the allegation of poverty is untrue, or if satisfied

that the action is frivolous or malicious.” 28 U.S.C. § 1915(d) (1990). Subsection

(a) allowed the authorization of a civil suit “without prepayment of fees and costs

or security therefor, by a person who makes affidavit that he is unable to pay such

costs or give security therefor.” 28 U.S.C. § 1915(a).

However, the current version of 28 U.S.C. § 1915, which became effective

in 1996, provides, “Notwithstanding any filing fee, or any portion thereof, that may

have been paid, the court shall dismiss the case at any time if the court determines

that . . . (B) the action . . . (ii) fails to state a claim on which relief may be granted

. . . .” 28 U.S.C. § 1915(e)(2) (2008); Pub. L. No. 104-134, § 804(a)(5), 110 Stat.

1321, 1321-74 (1996) (amending the statute to include the language requiring a

court to dismiss a case “at any time” for failure to state a claim, “[n]otwithstanding

any filing fee, or any portion thereof, that may have been paid”).

Furthermore, the 1990 verison of Fed.R.Civ.P. 4 stated, “Upon the filing of

the complaint the clerk shall forthwith issue a summons and deliver the summons

to the plaintiff or the plaintiff’s attorney, who shall be responsible for prompt

service of the summons and a copy of the complaint.” Fed.R.Civ.P. 4(a) (1990).

9
However, the current version of Fed.R.Civ.P. 4 provides, “On or after filing the

complaint, the plaintiff may present a summons to the clerk for signature and seal.

If the summons is properly completed, the clerk must sign, seal, and issue it to the

plaintiff for service on the defendant.” Fed.R.Civ.P. 4(b) (2008). Therefore, at the

time of the Herrick decision, Fed.R.Civ.P. 4(a) required the clerk to issue a

summons upon the filing of a complaint, but under the current version of the rule,

Fed.R.Civ.P. 4(b), the plaintiff is responsible for presenting the summons to the

clerk and serving it on the defendants.

Given that both 28 U.S.C. § 1915 and Fed.R.Civ.P. 4 have been

substantively changed since 1990, the Herrick decision does not control the

outcome of this case. Under the current version of 28 U.S.C. § 1915(e)(2), the

district court properly dismissed Trupei’s complaint, despite the fact that he was

proceeding IFP and had been ordered to pay part of the filing fee. See 28 U.S.C.

§ 1915(e)(2) (requiring a court, acting sua sponte, to dismiss a case “at any time”

and “[n]otwithstanding any filing fee, or any portion thereof, that may have been

paid” if the action fails to state a claim on which relief may be granted). The

current version of the statute recognizes that a court may grant a plaintiff’s motion

to proceed IFP, yet thereafter, determine that a case should be dismissed due to

deficiencies in the complaint, whether or not the summons has issued. See id.;

10
Fed.R.Civ.P. 4(b). Accordingly, the district court committed no error in this

regard.

B. Dismissal for Failure to State a Claim

As to the district court’s finding that Trupei’s complaint failed to state a

claim upon which relief could be granted, Trupei did not explicitly challenge this

finding in his brief on appeal. However, his brief discusses that defendants

Lehtinen, Lehner, and Lord did not have authorization to prosecute him, such that

the court did not have jurisdiction over his case, and we will liberally construe his

brief to raise this jurisdictional argument. Furthermore, we will liberally construe

his statement – that he learned that false testimony was given before the grand jury

– as raising an argument that his complaint stated a claim that Lehtinen, Lehner,

and Lord gave false testimony before the grand jury. We do not address Trupei’s

argument with respect to Walleisa because Walleisa was not named as a defendant

in the complaint. Finally, as discussed in section II.B.ii of this opinion, Trupei

abandoned any challenge to the district court’s findings as to the other defendants.

i. Defendants Lehtinen, Lehner, and Lord

a. Appointment and Jurisdiction

Federal Rule of Criminal Procedure 12 provides that certain motions must be

made before trial, including “a motion alleging a defect in instituting the

11
prosecution” and “a motion alleging a defect in the indictment or information.”

Fed.R.Crim.P. 12(b)(3)(A), (B). Subsection (e) provides, “A party waives any

Rule 12(b)(3) defense, objection, or request not raised by the deadline the court

sets under Rule 12(c) or by any extension the court provides. For good cause, the

court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). In any event, the

court must rule on pretrial motions before trial unless it finds good cause to defer a

ruling. Fed.R.Crim.P. 12(d).

In United States v. Suescun, the appellant argued, inter alia, that: (1) the

indictment was a nullity because it was obtained by a U.S. Attorney who had not

been properly appointed under U.S. Const. art. II, § 2, cl. 2; and (2) his convictions

were a nullity because the Appointments Clause and the Separation of Powers

principle prevented the district court from appointing the interim U.S. Attorney.

237 F.3d 1284, 1286 (11th Cir. 2001). We concluded that the appellant alleged a

defect in the proceedings, such that he was required to present his objections prior

to trial or at the time set by the court, pursuant to Fed.R.Crim.P. 12(f), and we

noted that he failed to do so. Id. at 1286-87. Accordingly, we concluded that he

waived his challenges and that he had not sought relief from the waiver. Id. at

1287. In analyzing whether a jurisdictional exception to the waiver applied, we

concluded that “[a]n appointment of a United States Attorney that is not made as

provided by the Appointments Clause does not affect the Government’s power to

12
prosecute,” such that, even if the appointment of the temporary U.S. Attorney was

invalid, the district court had jurisdiction to entertain the case and adjudicate the

appellant guilty of the offenses. Id. at 1287-88.

Here, like the appellant in Suescun, Trupei challenges his conviction on the

basis that Lehtinen, Lehner, and Lord, as a former U.S. Attorney and AUSAs, were

not properly appointed. However, as in Suescun, Trupei should have raised this

alleged defect in the proceedings in a pre-trial motion made under Fed.R.Crim.P.

12(b)(3). His failure to do so means that he has waived any challenge to his

conviction on this ground. See Fed.R.Crim.P. 12(e) (2008)1 ; Suescun, 237 F.3d at

1286-87. Trupei has not sought relief from the waiver for good cause with the

district court or this Court. See id. Furthermore, Trupei’s argument – that the trial

court did not have jurisdiction over him because Lehtinen, Lehner, and Lord had

not been properly appointed – is foreclosed by Suescun, where we held that even if

the U.S. Attorney’s appointment was invalid, the court still retained jurisdiction to

entertain the case and adjudicate the appellant guilty. See Suescun, 237 F.3d at

1286-87. Accordingly, Trupei has waived his argument that the proceedings were

defective, and his claim that the trial court was without jurisdiction is without

merit.

1
Federal Rule of Criminal Procedure 12 was amended in 2002, when subsection (f) was
changed to subsection (e). See Fed.R.Crim.P. 12 at 2002 Amendments. The Amendment provides,
“Although amended Rule 12(e) is a revised version of current Rule 12(f), the Committee intends to
make no change in the current law regarding waivers of motions or defenses.” Id.

13
 b. False Testimony before the Grand Jury

Federal Tort Claims Act

As an initial matter, the FTCA authorizes claims only against the United

States. See 28 U.S.C. § 2679(b)(1) (providing that the remedy against the United

States for injuries resulting from the acts of government employees acting in the

scope of their employment is “exclusive of any other civil action or proceeding for

money damages by reason of the same subject matter against the employee whose

act or omission gave rise to the claim”); see also Galvin v. Occupational Safety and

Health Admin., 860 F.2d 181, 183 (5th Cir. 1988) (“It is beyond dispute that the

United States, and not the responsible agency or employee, is the proper party

defendant in a Federal Tort Claims Act suit.”). Accordingly, the district court

correctly determined that Trupei’s complaint failed to state a claim against any of

the defendants other than the United States under the FTCA, as they were all either

federal or state employees or agencies.

Under the FTCA, the United States has waived sovereign immunity in 28

U.S.C. § 1346(b)(1), which provides that

the district courts . . . shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages . . . for injury
or loss of property, or personal injury or death 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.

14
28 U.S.C. § 1346(b)(1); see also Nguyen v. United States, No. 07-12874,

manuscript op. at 12 (11th Cir. Oct. 21, 2008). However, an exception to the

waiver of sovereign immunity lies in 28 U.S.C. § 2680(a), which provides that the

waiver in § 1346(b) “shall not apply to”:

[a]ny claim based upon an act or omission of an employee of the
Government, exercising due care, in the execution of a statute or
regulation, whether or not such statute or regulation be valid, or based
upon the exercise or performance or the failure to exercise or perform
a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved
be abused.

28 U.S.C. § 2680(a); see also Nguyen, No. 07-12874, manuscript op. at 12.

It initially appears that the United States has retained its sovereign immunity

with respect to Trupei’s claims that Lehtinen, Lehner, and Lord gave false

testimony before the grand jury because, as a U.S. Attorney and AUSAs, the act of

giving testimony was a discretionary act made in the scope of their job

responsibilities. See Nguyen, No. 07-12874, manuscript op. at 13-15 (determining

that 28 U.S.C. § 2680(a) applies when a government employee makes decisions

that are part of the employee’s “job-related powers and responsibilities”); Smith v.

United States, 375 F.2d 243, 248 (5th Cir. 1967) (holding that Ҥ 2680(a) exempts

the government from liability for exercising the discretion inherent in the

prosecutorial function of the Attorney General, no matter whether these decisions

are made during the investigation or prosecution of offenses”); see also Moore v.

15
United States, 213 F.3d 705, 713 n.7 (D.C. Cir. 2000) (stating that “the

presentation of evidence to the grand jury [] is a discretionary function immune

from suit under the FTCA”). Accordingly, these defendants’ acts with respect to

testimony before the grand jury fall within the exception in 28 U.S.C. § 2680(a),

pursuant to which the United States has retained its sovereign immunity. However,

for certain torts, a plaintiff may still proceed against the United States, despite the

government employee’s actions being covered by § 2680(a).

Section 2680(h) of Title 28 sets out exceptions to the general waiver of

sovereign immunity and provides,

[a]ny claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights:
Provided, That, with regard to acts or omissions of investigative or
law enforcement officers of the United States Government, the
provisions of this chapter and section 1346(b) of this title shall apply
to any claim arising, on or after the date of the enactment of this
proviso, out of assault, battery, false imprisonment, false arrest, abuse
of process, or malicious prosecution. For the purpose of this
subsection, “investigative or law enforcement officer” means any
officer of the United States who is empowered by law to execute
searches, to seize evidence, or to make arrests for violations of Federal
law.

28 U.S.C. § 2680(h). We recently concluded that, while the first part of § 2680(h)

discusses specific exceptions to the waiver of immunity and “reinforces what

paragraph (a) provides” in the context of the listed claims, “[t]he proviso in

§ 2680(h) takes the claims it specifies out of the exceptions and makes the general

16
waiver applicable to them. It is an exception to the exceptions to the waiver of

sovereign immunity.” Nguyen, No. 07-12874, manuscript op. at 15-16.

Accordingly, we held that “the United States has waived its sovereign immunity

for the claims listed in the § 2680(h) proviso,” and that “a lawsuit against the

United States is permitted insofar as it asserts those claims.” Id. at 16.

Here, the district court mistakenly concluded that the United States retained

immunity over Trupei’s false arrest, false imprisonment, abuse of process, and

malicious prosecution claims to the extent that he raised them against investigative

or law enforcement officers. See id. at 15-16; 28 U.S.C. § 2680(h). Nevertheless,

Trupei’s complaint still failed to state a claim against Lehtinen, Lehner, and Lord

as to those specific torts because, as prosecutors, they do not qualify as

“investigative or law enforcement officer[s]” within the meaning of 28 U.S.C.

§ 2680(h), as they were not empowered to execute searches, seize evidence, and

make arrests. See 28 U.S.C. § 2680(h); 28 U.S.C. § 547 (setting out the duties of

U.S. Attorneys and not listing the execution of searches, seizure of evidence, or

making of arrests); Moore, 213 F.3d at 710 (holding that “none of [the

prosecutor’s] conduct can be the basis for a malicious prosecution claim against the

government because he is not an investigative or law enforcement officer” (citing

28 U.S.C. § 2680(h)); Bernard v. United States, 25 F.3d 98, 104 (2d Cir. 1994)

(“The FTCA authorizes suits for abuse of process based only on the actions of

17
federal investigative or law enforcement officers, not on the actions of government

prosecutors.”). Accordingly, because the United States retained immunity over the

discretionary acts with respect to grand jury testimony as to Lehtinen, Lehner, and

Lord under 28 U.S.C. § 2680(a) and because they did not qualify under the proviso

in § 2680(h), the district court correctly concluded that Trupei’s complaint failed to

state a claim under the FTCA as to these defendants.

Bivens

“Because of the similarity in the causes of action, a Bivens case challenges

the constitutionality of federal officials’ conduct, while § 1983 challenges the

constitutionality of state officials’ conduct, we generally apply § 1983 law to

Bivens cases.” Wilson v. Blankenship, 163 F.3d 1284, 1288 (11th Cir. 1998)

(quotation omitted). “To prevail on a claim under § 1983, a plaintiff must

demonstrate both (1) that the defendant deprived [him] of a right secured under the

Constitution or federal law and (2) that such a deprivation occurred under color of

state law.” Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir. 1998).

Although § 1983 authorizes actions only against state officials, the Supreme Court

has held that the same type of action may be pursued against federal officials when

a plaintiff has suffered a deprivation of a constitutional right. Bivens, 403 U.S. at

389, 91 S.Ct. at 2001.

In Heck, the Supreme Court held that,

18
 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. A claim for damages bearing that relationship to a
conviction or sentence that has not been so invalidated is not
cognizable under § 1983.

512 U.S. at 486-87, 114 S.Ct. at 2372 (footnote omitted); see also Abella v.

Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (holding that “the Heck rule applies

to Bivens damages claims”).

Here, the district court correctly determined that Trupei’s claims attacked the

legality of his conviction and sentence. In his complaint, Trupei’s overall

contention is that Lehtinen, Lehner, and Lord improperly or unlawfully caused him

to indicted, tried, convicted, and sentenced. Trupei’s Bivens claims essentially

sought to invalidate his conviction and sentence, and, as such, they are barred

under Heck. See Heck, 512 U.S. at 486-87, 114 S.Ct. at 2372. Accordingly, the

district court correctly dismissed his Bivens claims as to Lehtinen, Lehner, and

Lord.

ii. Other Defendants

With respect to the remaining defendants, Trupei has abandoned any

challenge to the district court’s finding – that his complaint failed to state a claim

upon which relief could be granted – by failing to argue it on appeal. In his brief,

19
apart from his discussion relating to Lehtinen, Lehner, and Lord, Trupei argues

only that the court erred in dismissing his complaint because the court did not issue

the summons despite the fact that he was allowed to proceed IFP and had paid a

partial filing fee. Trupei does not mention or cite to the FTCA or Bivens in his

brief, and he makes a single conclusory statement that his complaint did not fail to

state a claim. This conclusory statement, without any supporting argument, is

insufficient to raise the issue that the court erred in determining that his complaint

failed to state a claim upon which relief could be granted as to the remaining

defendants. See Fed.R.App.P. 28(a)(9)(A) (requiring an appellant’s brief to

include an argument containing “appellant’s contentions and the reasons for them,

with citations to the authorities and parts of the record on which the appellant

relies”); Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.) (noting that, while we

read pro se briefs liberally, “issues not briefed on appeal by a pro se litigant are

deemed abandoned”), cert. denied, 129 S.Ct. 74 (2008).

III.

Based on the reasons set forth above, we conclude that the district court

properly dismissed Trupei’s complaint despite his IFP status and partial payment

of the filing fee because such a practice is permitted under 28 U.S.C. § 1915(e)(2).

With respect to Lehtinen, Lehner, and Lord, the court properly dismissed Trupei’s

complaint because he waived his challenge that the proceedings were defective and

20
raised no cognizable claims under the FTCA or Bivens. As to the other

defendants, Trupei abandoned any challenge to the court’s findings. Accordingly,

we affirm the district court’s dismissal of Trupei’s complaint. We also affirm the

denial of his Rule 59(e) motion for reconsideration because Trupei presented the

identical arguments in his motion as he did in his objections to the R&R. Michael

Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)

(noting that a litigant cannot use a Rule 59(e) motion to relitigate old matters).

AFFIRMED.

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