USCA11 Case: 21-13881 Date Filed: 09/26/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13881
Non-Argument Calendar
____________________
RICO LAMAR BALLARD,
Plaintiff-Appellant,
versus
WARDEN JOSE MORALES,
GD&CP SMU, individual and official capacity,
DEPUTY WARDEN JOSEPH POLITE,
GD&CP SMU, individual and official capacity,
WARDEN BENJAMIN FORD,
GD&CP, individual and official capacity
DEPUTY WARDEN THERESA THORNTON,
GDCP, individual and official capacity,
DEPUTY WARDEN TOMMY COFFEE,
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2 Opinion of the Court 21-13881
GDCP, individual and official capacity et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:21-cv-00138-MTT-CHW
____________________
Before LUCK, LAGOA, and BLACK, Circuit Judges.
PER CURIAM:
Rico Lamar Ballard, a state prisoner proceeding pro se, ap-
peals the district court’s dismissal of his
42 U.S.C. § 1983 complaint
against 24 defendants, all of whom worked for the Georgia Depart-
ment of Corrections (GA DOC). The district court concluded Bal-
lard’s claims were barred under Preiser v. Rodriguez,
411 U.S. 475
(1973), and Heck v. Humphrey,
512 U.S. 477 (1994), because Bal-
lard was attempting to challenge the validity of his conviction and
incarceration and sought his immediate release from state custody
but had not demonstrated that his conviction had been overturned.
Moreover, the district court found that Ballard’s allegations that
the Defendants falsely imprisoned and plotted to steal from him
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21-13881 Opinion of the Court 3
were conclusory with no factual support. After review, 1 we affirm
the district court.
Section 1915A of the Prison Litigation Reform Act (PLRA)
requires the district court to review a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or of-
ficer. 28 U.S.C. § 1915A(a). Upon review, the court should identify
cognizable claims or dismiss the complaint or portions thereof that
are frivolous, malicious, fail to state a claim upon which relief may
be granted, or seek monetary relief from a defendant who is im-
mune from such relief. Id. § 1915A(b). “A complaint is subject to
dismissal for failure to state a claim if the allegations, taken as true,
show the plaintiff is not entitled to relief.” Jones v. Bock,
549 U.S.
199, 215 (2007).
A § 1983 action cannot be used to collaterally attack a con-
viction 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 deter-
mination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Heck,
512 U.S. at 486-87. The Supreme
Court clarified that prisoners “cannot use § 1983 to obtain damages
where success would necessarily imply the unlawfulness of a (not
1 We review de novo a sua sponte dismissal for failure to state a viable claim
under 28 U.S.C. § 1915A. Leal v. Ga. Dep’t of Corr.,
254 F.3d 1276, 1278-79
(11th Cir. 2001).
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4 Opinion of the Court 21-13881
previously invalidated) conviction or sentence,” even if the pris-
oner is seeking injunctive relief. Wilkinson v. Dotson,
544 U.S. 74,
81-82 (2005). Additionally, when a state prisoner challenges the
very fact or duration of his imprisonment, and the relief he seeks is
his immediate or speedier release from that imprisonment, his sole
federal remedy is a writ of habeas corpus. Preiser,
411 U.S. at 500.
Conversely, a § 1983 action is a proper remedy for a state prisoner
making a constitutional challenge to the conditions of his impris-
onment, but not to the fact or length of his custody. Id. at 499.
The district court did not err in dismissing Ballard’s com-
plaint as barred by Preiser and Heck. Ballard argues he is falsely
imprisoned because his maximum release date has passed, and he
has expressly requested his immediate release from prison. This
claim is barred by Preiser because Ballard is seeking a determina-
tion that his sentence has maxed out and he should be immediately
released. See Preiser,
411 U.S. at 500. Thus, the district court did
not err in ruling his claim for immediate release from prison was
inappropriately sought in a § 1983 action. See id.
Next, Ballard’s claim for damages resulting from his alleged
false imprisonment is barred by Heck because for him to prevail on
this claim would require a finding his current sentence is invalid or
unlawful. See Heck,
512 U.S. at 486-87. Notwithstanding his
claims to the contrary, Ballard has not demonstrated his sentence
has been invalidated. See id.; Wilkinson,
544 U.S. at 81-82. Bal-
lard’s Sentence Computation Report showed that in 1996 he re-
ceived a life sentence for murder and noted no maximum release
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21-13881 Opinion of the Court 5
date for that sentence. Although the sentence length and serve
time reflected “0 Years, 0 Months, 0 Days,” that does not suggest
his sentence was invalid or vacated, but rather that a life sentence
does not include a calculated number of years, months, or days of
incarceration. In addition, Ballard’s claim his maximum release
date was March 21, 2020, is incorrect as to his life sentence for mur-
der but is correct as to his five-year sentence, imposed in 2015, for
aggravated assault on a peace officer.
Moreover, as the magistrate judge noted, according to the
Georgia State Board of Pardons and Paroles, Inmate Tentative Pa-
role Month website, Ballard is still under a life sentence. See
www.pap.state.ga.us/InmateTPM. Although Ballard claims his
conviction and sentence have been “discharged, vacated, com-
muted and declared null and void” in several proceedings, he does
not provide a specific cite to any case that overturned his convic-
tion or sentence, and the Georgia Supreme Court affirmed his con-
viction and life sentence in 1998. See Ballard v. State,
494 S.E.2d
644 (Ga. 1998). Thus, to the extent Ballard’s claim for damages
would imply his sentence is invalid, that claim is barred by Heck.
As to Ballard’s claim the Defendants were involved in an
elaborate plot to steal his money, property, and identity, even lib-
erally construing his complaint, he did not meet the pleading re-
quirements in Rule 8(a), which he was required to do. See Fed. R.
Civ. P. 8(a); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)
(explaining Federal Rule of Civil Procedure 8(a)(2) requires “a short
and plain statement of the claim” showing the plaintiff is entitled
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6 Opinion of the Court 21-13881
to relief, giving the defendant fair notice of what the claim is, and
the grounds upon which it rests); Moon v. Newsome,
863 F.2d 835,
837 (11th Cir. 1989) (stating pro se litigants must comply with the
Federal Rules of Civil Procedure). Ballard alleged that GA DOC
employees stole from him, allowed inmates to steal from him, and
gave legal documents, identifying information, and bank account
information to some inmates. He did not however, provide any
factual support for those allegations, such as any specific infor-
mation about how the Defendants stole his documents or money,
the amount of money stolen, from what bank account, or the
names of any of the inmates involved. Thus, his claims against the
Defendants for participating in a plot to steal his money, property,
and identity amounted to conclusory allegations and did not raise
plausible claims for relief. 2 See Bell Atl. Corp.,
550 U.S. at 556 (stat-
ing a complaint must include enough factual matter that, taken as
true, raises a reasonable expectation that discovery will reveal evi-
dence supporting the grounds for relief); Jones v. Fla. Parole
Comm’n,
787 F.3d 1105, 1107 (11th Cir. 2015) (stating pro se plead-
ings are liberally construed and held to less stringent standards than
2 Even if Ballard had stated a plausible claim for relief related to the Defend-
ants’ plot to steal from him, he has not shown any due process violation be-
cause the State of Georgia provides an adequate remedy for the loss of his
money or other property through filing a state court action. See O.C.G.A.
§ 51-10-6 (providing a remedy for willful damage to or theft of personal prop-
erty); Lindsey v. Storey,
936 F.2d 554, 561 (11th Cir. 1991) (stating there is no
procedural due process violation when there is some adequate post-depriva-
tion remedy for a loss).
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21-13881 Opinion of the Court 7
those drafted by lawyers, but they must still suggest some factual
basis for a claim).
Lastly, Ballard’s claim the Defendants failed to establish a
system for him to challenge his sentence and failed to review and
consider the fact he had maxed out his sentence is properly brought
under § 2241 because he seeks to challenge the execution of his sen-
tence, rather than its validity. See Antonelli v. Warden, U.S.P. At-
lanta,
542 F.3d 1348, 1352 (11th Cir. 2008) (explaining challenges to
the execution of a sentence, rather than to its validity, are properly
brought under
28 U.S.C. § 2241).
AFFIRMED.
