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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17580
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-23973-MGC
JOHNSON CHRISTOPHER JAMERSON,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 7, 2019)
Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Johnson Jamerson, proceeding pro se, appeals the district court’s dismissal
of his civil complaint for frivolity and failure to state a viable claim under
28
U.S.C. § 1915(e)(2) and for failing to comply with the court’s orders under Fed. R.
Civ. P. 41(b). On appeal, he argues that the district court denied him due process
by failing to address an alleged issue with the jurisdiction of the state trial court
over his criminal proceedings. He contends that his claims are not barred by Heck 1
because Heck did not involve a criminal conviction with an underlying jurisdiction
issue.
We have held that a district court can dismiss a case sua sponte under
Fed. R. Civ. P. 41(b) if the plaintiff fails to comply with a court order. Betty K
Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005). We
review a district court’s dismissal under Rule 41(b) for abuse of discretion.
Id.
In general, a dismissal without prejudice is not an abuse of discretion. See
Dynes v. Army Air Force Exch. Serv.,
720 F.2d 1495, 1499 (11th Cir. 1983).
Dismissal with prejudice is reviewed more strictly than dismissal without prejudice
because dismissal with prejudice is “a sanction of last resort, applicable only in
extreme circumstances.” Zocaras v. Castro,
465 F.3d 479, 483 (11th Cir. 2006)
(quotation marks omitted). Even so, a dismissal with prejudice under Rule 41(b)
“upon disregard of an order, especially where the litigant has been forewarned,
1
Heck v. Humphrey,
512 U.S. 477 (1994).
2
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generally is not an abuse of discretion.” Moon v. Newsome,
863 F.2d 835, 837
(11th Cir. 1989).
Additionally, a court “shall dismiss” a case filed IFP if the court determines
that the complaint “is frivolous or malicious” or “fails to state a claim upon which
relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(i), (ii). A district court’s
dismissal of a complaint for failure to state a claim is reviewed de novo, “viewing
the allegations in the complaint as true.” Mitchell v. Farcass,
112 F.3d 1483, 1490
(11th Cir. 1997). An action is frivolous if it is “without arguable merit either in
law or fact.” Napier v. Preslicka,
314 F.3d 528, 531 (11th Cir. 2002) (quotation
marks omitted). Moreover, while pro se pleadings must be liberally construed,
issues not briefed on appeal are deemed abandoned. Timson v. Sampson,
518 F.3d
870, 874 (11th Cir. 2008).
Section 1983 of Title 42 of the U.S. Code creates no substantive rights, but
merely provides a remedy for deprivations of federal and constitutional rights.
Almand v. DeKalb Cty., Ga.,
103 F.3d 1510, 1512 (11th Cir. 1997). To prevail on
a civil rights action under § 1983, a plaintiff must establish that he was deprived of
a federal right by a person acting under color of state law. West v. Atkins,
487 U.S.
42, 48 (1988). A private individual also may be held liable under § 1983 when he
conspires with state actors to violate the plaintiff’s constitutional rights. Rowe v.
City of Fort Lauderdale,
279 F.3d 1271, 1283 (11th Cir. 2002). To establish a
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§ 1983 conspiracy, the plaintiff must provide some evidence of an agreement
between the defendants. Id. at 1283-84.
However, a § 1983 action cannot be used to collaterally attack a conviction
or sentence unless the underlying 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.” Heck,
512 U.S. at 486-87. Although Heck
involved a prisoner seeking money damages, the Supreme Court later clarified that
prisoners “cannot use § 1983 to obtain relief where success would necessarily
demonstrate the invalidity of confinement or its duration,” even if the prisoner is
seeking injunctive relief. Wilkinson v. Dotson,
544 U.S. 74, 74-75, 81 (2005).
Additionally, “when a state prisoner is challenging the very fact or duration
of his physical imprisonment, and the relief he seeks is a determination that he is
entitled to immediate release or a speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez,
411 U.S. 475,
500 (1973). Conversely, “a [§] 1983 action is a proper remedy for a state prisoner
who is making a constitutional challenge to the conditions of his prison life, but not
to the fact or length of his custody.” Id. at 499.
The district court did not abuse its discretion by dismissing Jamerson’s
complaint for failure to comply because none of its orders was returned
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undelivered, one of the orders warned him of the dangers of failing to comply, and
Jamerson continued to prosecute his case. See Betty K. Agencies, Ltd.,
432 F.3d at
1337; Moon,
863 F.2d at 837. Additionally, the district court properly concluded
that Jamerson’s claims were barred under Heck because Jamerson was attempting
to challenge the fact of his conviction and has not demonstrated that his conviction
has been overturned. See Heck,
512 U.S. at 486-87; Wilkinson,
544 U.S. at
74-75, 81. Accordingly, we affirm.
AFFIRMED.
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