Keneth L. Inman v. State Bar of Georgia, eta l , 611 F. App'x 579 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13229
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00202-HL-MSH
KENNETH L INMAN,
Plaintiff-Appellant,
versus
STATE BAR OF GEORGIA,
WILLIAM P. SMITH, III,
Attorney,
ROBERT E. MCCORMACK,
Attorney,
PAULA J. FREDERICK,
Attorney,
CHRISTINA PETRIG,
Attorney, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 15, 2015)
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Before MARCUS, JULIE CARNES and FAY, Circuit Judges.
PER CURIAM:
Kenneth Inman, a Georgia state prisoner serving a total life sentence for
felony murder and other offenses, appeals pro se the district court’s dismissal of
his civil rights Section 1983 complaint against the State Bar of Georgia (“State
Bar”), William P. Smith, III, Robert E. McCormack, Paula J. Frederick, Christina
Petrig, Howard Simms, Cliffton Woody, Joe Maccione, Paul Christian, Ray H.
Shouse, Terry Deese, and Laurens C. Lee. The case arises out of Inman’s claims
that his former defense attorneys, through an unlicensed investigator who
burglarized his house, leaked information to the district attorney’s office that lead
to Inman’s prosecution. He also claims that the State Bar held a hearing based on
his complaints about his counsel, but the State Bar’s counsel did not notify the
court in which his criminal case was pending about the alleged misconduct. The
district court dismissed the complaint for failure to state a claim, pursuant to the
Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(b)(1). On appeal,
Inman argues that: (1) the State Bar’s counsel violated his constitutional rights by
not reporting what they learned in its disciplinary hearing; (2) the state violated his
due process rights by using privileged information against him at trial, and
vindictively sought the death penalty against him; and (3) the state failed to
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prosecute the investigator in violation of his due process rights. After thorough
review, we affirm.
A district court’s decision to dismiss for failure to state a claim under §
1915A is reviewed de novo, taking the allegations in the complaint as true. Boxer
X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006). If a pro se appellant fails to
raise and develop an issue in an initial brief, he abandons that issue on appeal. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (noting that although
pleadings filed by a pro se litigant are construed liberally, any issues not
meaningfully addressed in the initial brief are abandoned). We will not consider a
claim not raised before the district court, even where the appellant was proceeding
pro se below. See Miller v. King, 449 F.3d 1149, 1150 n.1 (11th Cir. 2006).
The PLRA provides that “[t]he court shall review, before docketing, if
feasible or, in any event, as soon as practicable after docketing, a complaint in a
civil action in which a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity.” 28 U.S.C. § 1915A(a). Upon review, the
court must identify cognizable claims, or dismiss the complaint or any portions of
it that are frivolous, are malicious, fail to state a claim upon which relief may be
granted, or seek monetary relief from a defendant who is immune 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.
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Bock, 549 U.S. 199, 215 (2007). The standards that apply to a dismissal under
Fed.R.Civ.P. 12(b)(6) apply to a dismissal under § 1915A(b)(1). See id. at 215-16.
Section 1983 does not contain a statute of limitations; therefore courts must
select and apply the most analogous state statute of limitations to § 1983 claims.
Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986). In Georgia, the
proper limitations period for all § 1983 claims is the two-year period set forth in
O.C.G.A. § 9-3-33 for personal injuries. Id. The statute of limitations does not
begin to run until the facts which would support a cause of action are apparent or
should be apparent to a person with a reasonably prudent regard for his rights.
Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996).
The Supreme Court has held that:
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.
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Thus, “the district court must
consider whether a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence; if it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” Id.
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A private citizen has no judicially cognizable interest in the prosecution or
non-prosecution of another. Otero v. U.S. Att’y Gen., 832 F.2d 141, 141 (11th Cir.
1987). A complaint fails to state a claim if it does not state with minimal
particularity how overt acts of a defendant caused a legal wrong. Douglas v.
Yates, 535 F.3d 1316, 1322 (11th Cir. 2008).
In this appeal, Inman’s brief abandons his claims against his defense
attorneys, Maccione and Christian, and their investigator, Shouse. Timson, 518
F.3d at 874. He also asserts a vindictive prosecution argument that he did not
make below, but we will not entertain a claim brought for the first time on appeal.
See Miller, 449 F.3d at 1150 n.1.
As for Inman’s claims arising from the State Bar disciplinary hearing and his
subsequent criminal trial, those events occurred in 2007 and 2008, so the district
court correctly determined that the claims were time-barred. Inman filed his
complaint in 2014, long after the expiration of the relevant two-year statute of
limitations. Williams, 794 F.2d at 626. While Inman’s complaint made a passing
reference to newly discovered evidence, he did not describe the evidence or
explain why he could not have discovered it acting as a person with reasonably
prudent regard for his rights -- especially since the new evidence was apparently
the transcript of the State Bar disciplinary hearing, which was caused by Inman’s
own Bar complaint. Rozar, 85 F.3d at 561-62. In any event, as the district court
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concluded, even if his claim that prosecutors violated his constitutional rights by
engaging in prosecutorial misconduct was not time-barred, it was barred by Heck,
because the claim would necessarily imply the invalidity of his criminal
convictions, which have not been set aside. Heck, 512 U.S. at 486-87.
Nor did the district court err in dismissing Inman’s claim that the failure to
prosecute the investigator violated his due process rights. As we’ve well
established, Inman does not have a judicially cognizable interest in the prosecution
or non-prosecution of another. Otero, 832 F.2d at 141. Finally, as for his
argument about Assistant District Attorney Bobbit, Inman did not make any actual
allegations against her, so he did not state a claim against her. Douglas, 535 F.3d
at 1322. Even if we were to liberally construe the pleading to allege the same facts
against her as those alleged against the other defendants, his claim still fails for the
reasons we’ve already discussed.
AFFIRMED.
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