[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15174 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 24, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 08-02526-CV-JTC-1
GERARD J. PUGH,
Plaintiff-Appellant,
versus
HUGH SMITH, Warden,
JAMES DONALD, Commissioner,
L. GALE BUCKNER, Chairperson,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 24, 2009)
Before BIRCH, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Gerard J. Pugh, a Georgia state prisoner proceeding pro se and in forma
pauperis (“IFP”), appeals the district court’s sua sponte dismissal, under 28 U.S.C.
§ 1915A(b)(1), of his § 1983 action for failure to state a claim and, in construing
his complaint as writ for habeas corpus, for impermissibly filing a successive
habeas petition. On appeal, Pugh re-asserts arguments made in his complaint,
namely that he was wrongly convicted and, as a result, the Georgia parole board
should commute his sentence and immediately release him. After thorough
review, we affirm.1
We review de novo a district court’s decision to dismiss for failure to state a
claim under 28 U.S.C. § 1915A(b)(1), taking the allegations in the complaint as
true. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). Pursuant to §
1915A, a district court must dismiss a prisoner’s complaint if the complaint “is
frivolous, malicious, or fails to state a claim upon which relief may be granted.”
28 U.S.C. § 1915A(a)-(b)(1). A pro se complaint is held to a “less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
The standards that apply to dismissal under Fed. R. Civ. P. 12(b)(6) apply to
dismissal under § 1915A(b)(1). See, e.g., Mitchell v. Farcass, 112 F.3d 1483, 1490
(11th Cir. 1997) (addressing 28 U.S.C. § 1915(e)(2)(B)). That is, although the
complaint need not provide detailed factual allegations, there “must be enough to
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In addition, Pugh’s motion to waive filing fees is DENIED.
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raise a right to relief above the speculative level,” and the complaint must contain
enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56, 570 (2007); see also Watts v. Florida Int’l Univ.,
495 F.3d 1289, 1295-96 (11th Cir. 2007) (holding that a complaint is sufficient if it
identifies facts that are suggestive enough to render the necessary elements
plausible).
“In order to prevail on a civil rights action under § 1983, a plaintiff must
show that he or she 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).
A habeas petition is the exclusive remedy for a prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier release. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); see Clark v. State of Ga. Pardons & Paroles
Bd., 915 F.2d 636, 638 (11th Cir. 1990) (holding that the district court
mischaracterized a state prisoner’s § 1983 claim as a petition for writ of habeas
corpus because the prisoner did not attack his conviction, challenge the fact or
length of his confinement or seek immediate release from prison).
Furthermore, a state prisoner’s § 1983 claim is barred “no matter the relief
sought” and “no matter the target of the prisoner’s suit (state conduct leading to
conviction or internal prison proceedings)” if success in that action would
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necessarily demonstrate the invalidity of his conviction or length of confinement.
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005); Heck v. Humphrey, 512 U.S.
477, 487 (1994). If it would, the district court must dismiss the complaint, unless
the plaintiff can show 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 habeas corpus.” Heck, 512 U.S. at 487. A plaintiff seeking
relief based on the premise that he “was the victim of an unconstitutional
conspiracy to falsely convict him” is merely attempting to overturn his conviction
and is barred by Heck from proceeding. Abella v. Rubino, 63 F.3d 1063, 1064,
1065-66 (11th Cir. 1995) (involving action under Bivens v. Six Unknown Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), which is analogous to § 1983
for Heck purposes).
If the district court treats a prisoner’s § 1983 claim as a writ for habeas
corpus relief because he challenges the fact or duration of his confinement and
seeks an immediate release, it is without jurisdiction to consider it if the prisoner
has previously filed a habeas petition that was dismissed with prejudice and has not
applied to this Court for permission to file a successive application. See 28 U.S.C.
§ 2244(b)(3)(A); Fugate v. Dep’t of Corr., 301 F.3d 1287, 1288 (11th Cir. 2002).
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In this case, Pugh directly challenged his conviction and requested an
immediate release and, consequently, his complaint is Heck-barred. Wilkinson,
544 U.S. at 81-82. As a result, the district court correctly dismissed his complaint
and construed it as a writ for habeas corpus relief. Clark, 915 F.2d at 639.
Moreover, the district court properly dismissed Pugh’s habeas petition because he
previously filed a § 2254 petition that was dismissed with prejudice, and he did not
obtain our permission to file a successive petition. Fugate, 301 F.3d at 1288.
Accordingly, we affirm.
AFFIRMED.
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