Abella v. Rubino

• Decision Date: 12 September 1995
• Docket Number: No. 94-4134,94-4134
• Citation: 63 F.3d 1063
• Parties: Jose ABELLA, Plaintiff-Appellant, v. Frank RUBINO, Dale Whitice, Stephen Golembe, Glen Koch, Hector Flores, in their individual capacities, Rene Palomino, Jr., Blas Duran, Fernando Duran, Magaly Duran, Rolando Alvarez, Harold Garcia, Sisinio Torres, Thomas Scott, James L. King, Judge, Allan Kaiser, David Robinson, US Customs Agent, John Doe, US Customs Agent, Mona Jerkings, DEA Agent, Louis Julianelli, US Marshal, US Marshal, John Does 1-5, Secretary Doe, Law Clerk Doe, Elaine Somma, Court Reporter, Anton B. Schwartz, Court Reporter, Barbara Medina, Court Reporter--jointly and severally, in their individual, professional and official capacities, Defendants-Appellees. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1063

63 F.3d 1063

Jose ABELLA, Plaintiff-Appellant, v. Frank RUBINO, Dale Whitice, Stephen Golembe, Glen Koch, Hector Flores, in their individual capacities, Rene

Palomino, Jr., Blas Duran, Fernando Duran, Magaly Duran,

Rolando Alvarez, Harold Garcia, Sisinio Torres, Thomas

Scott, James L. King, Judge, Allan Kaiser, David Robinson,

US Customs Agent, John Doe, US Customs Agent, Mona Jerkings,

DEA Agent, Louis Julianelli, US Marshal, US Marshal, John

Does 1-5, Secretary Doe, Law Clerk Doe, Elaine Somma, Court

Reporter, Anton B. Schwartz, Court Reporter, Barbara Medina,

Court Reporter--jointly and severally, in their individual,

professional and official capacities, Defendants-Appellees.

No. 94-4134

Non-Argument Calendar.

United States Court of Appeals,

Eleventh Circuit.

Sept. 12, 1995.

Jose Abella, Eglin, FL, pro se.

Jon May, Miami, FL, Barry L. Halpern, Coconut Grove, FL, for S. Golembe.

Glen J. Koch, North Miami, FL, pro se.

Rene Palomino, Miami, FL, pro se.

Kathleen M. Salyer, Linda Collines Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for appellees.

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

Before ANDERSON, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

Abella, a federal prisoner convicted of various narcotic offenses, filed this pro se Bivens ¹ action. His amended complaint named numerous defendants, including two federal district judges, an assistant U.S. Attorney, U.S. Customs and DEA officials, U.S. Marshals, three federal court reporters, a judicial law clerk, a secretary, and several of Abella's co-defendants and their respective attorneys. Abella claimed that the defendants knowingly and willfully conspired to convict him falsely by fabricating testimony and other evidence against him, in violation of his Fifth, Sixth and Eighth Amendment rights. Abella sought declaratory and injunctive relief, and compensatory and punitive damages. The district court dismissed the complaint, noting that Abella's claims collaterally attacked the validity of his underlying criminal convictions and therefore should be dismissed because Abella had not first exhausted federal habeas remedies under 28 U.S.C. Sec. 2255. Dees v. Murphy, 794 F.2d 1543, 1545 (11th Cir.1986).

On appeal, Abella asserts that the dismissal was unduly harsh because the statute of limitations may run on his Bivens claims before he is able to exhaust his federal habeas remedies. Abella argues that the proper disposition would have been to stay the proceedings, and toll the statute of limitations on his Bivens claims, pending resolution of his criminal appeal and 28 U.S.C. Sec. 2255 claims. At the time the district court dismissed Abella's claims, Abella may well have been correct that a stay was the appropriate disposition of some of his claims under the current Eleventh Circuit law. Cf. Prather v. Norman, 901 F.2d 915, 919 (11th Cir.1990) (Where monetary damages sought in 42 U.S.C. Sec. 1983 challenge to validity of claimant's state conviction or sentence, court should stay action pending exhaustion of state remedies if it appears dismissal will result in expiration of the statute of limitations.). However, since the district court dismissed this action, the law has changed, Heck v. Humphrey, --- U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and we are obliged to apply the new law retroactively to Abella's claims. Harper v. Virginia Dep't of Taxation, --- U.S. ----, ----, 113 S.Ct. 2510, 2517, 125 L.Ed.2d 74 (1993).

I. ABELLA'S BIVENS DAMAGES CLAIMS

In Heck, the Supreme Court held that [I]n 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 Sec. 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. Sec. 2254.

--- U.S. at ----, 114 S.Ct. at 2372. Thus, a 42 U.S.C. Sec. 1983 damages action which would demonstrate the invalidity of a conviction or sentence does not accrue until the conviction or sentence has been invalidated. Id. at ----, 114 S.Ct. at 2374. Such an action, if brought prior to invalidation of the conviction or sentence challenged, must therefore be dismissed as premature. Id. at ----, 114 S.Ct. at 2372. ²

Although Heck was a Sec. 1983 case, suits under Sec. 1983 and Bivens are very similar. A Sec. 1983 suit challenges the constitutionality of the actions of state officials; a Bivens suit challenges the constitutionality of the actions of federal officials. "The effect of Bivens was, in essence, to create a remedy against federal officers, acting under color of federal law, that was analogous to the section 1983 action against state officials." Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981). Thus, courts generally apply Sec. 1983 law to Bivens cases. E.g., Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57 L.Ed.2d 895 (1978) (A federal official sued under Bivens has the same immunity as a similar state official sued for identical violation under Sec. 1983.); Dean, 621 F.2d at 1336 (As in Sec. 1983 cases, liability in Bivens actions cannot be based upon theory of respondeat superior.). In fact, the specific pre-Heck rule requiring exhaustion of habeas remedies in Bivens cases, applied by the district court to dismiss the instant case, was borrowed from Sec. 1983 caselaw. See Dees, 794 F.2d at 1544 (borrowing exhaustion requirement from Richardson v. Fleming, 651 F.2d 366 (5th Cir.1981), a Sec. 1983 case).

There are, of course, federalism and comity concerns present when a federal court entertains a Sec. 1983 challenge to the actions of state officials that do not exist in a similar Bivens challenge. However, the Heck rule is not based upon the unique comity concerns that a Sec. 1983 claim presents. Rather, the Court's purpose was to limit the opportunities for collateral attack on state court convictions because such collateral attacks undermine the finality of criminal proceedings and may create conflicting resolutions of issues. --- U.S. at ----, 114 S.Ct. at 2371. The same rationale applies with equal force to Bivens challenges; collateral attacks on federal criminal convictions pose the same threat to the finality of federal criminal trials and have the same potential for creating inconsistent results as collateral attacks on state court proceedings. Thus, we hold that the Heck rule applies to Bivens damages claims. Accord Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.1994).

Abella's damages claims rest on the contention that the defendants unconstitutionally conspired to convict him of crimes he did not commit. Judgment in favor of Abella on these claims "would necessarily imply the invalidity of his conviction." Heck, --- U.S. at ----, 114 S.Ct. at 2372. Because Abella's convictions have not been invalidated, his Bivens damages claims are not ripe. Therefore, the district court did not err in dismissing Abella's claims. We affirm the dismissal of Abella's claims with prejudice; Abella may bring his Bivens damages claims in the future should he meet the requirements of Heck. ³

II. ABELLA'S OTHER BIVENS CLAIMS

With respect to Abella's other claims, Heck reaffirmed that, under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), "habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release." --- U.S. at ----, 114 S.Ct. at 2364. Thus, declaratory or injunctive relief claims which are in the nature of habeas corpus claims--i.e., claims which challenge the validity of the claimant's conviction or sentence and seek release--are simply not cognizable under Sec. 1983. ⁴ Id. This rule applies equally to Bivens actions. See Dees v. Murphy, 794 F.2d at 1545 (citing Preiser as support for dismissal of Bivens claim challenging validity of plaintiff's conviction). Resting on the same premise as his damages claims, that Abella was the victim of an unconstitutional conspiracy to falsely convict him, Abella's declaratory and injunctive relief claims challenge the validity of his conviction. Because these claims are not cognizable Bivens claims, the district court did not err in dismissing Abella's declaratory and injunctive relief claims.

III. STAY OR DISMISS

As Abella argues, we have said that stay rather than dismissal is the appropriate disposition of some Sec. 1983 claims. Prather, 901 F.2d at 918-19. Although the petitioner in Prather presented claims for both monetary damages and for injunctive and declaratory relief, we suggested that stay was appropriate because of our concern that the statute of limitations would run on Prather's damages...