Chester Weaver, Sr. v. Ray Geiger , 294 F. App'x 529 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-10479 SEPT 24, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-01205-CV-J-33-MCR
CHESTER WEAVER, SR.,
Plaintiff-Appellant,
CHESTER WEAVER, JR.,
Plaintiff,
versus
RAY GEIGER,
Sheriff, sued in his/her individual and official
capacities,
W.J. O'LEARY,
sued in his/her individual and official
capacities,
C. WATE,
Sgt., sued in his/her individual and official
capacities,
B.E. TURNER,
sued in his/her individual and official
capacities,
GRANVILLE BURGESS,
sued in his/her individual and official
capacities, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 24, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Chester Weaver, Sr., a Florida prisoner serving a sentence for a drug
conviction and proceeding pro se, appeals the dismissal, under 28 U.S.C.
§ 1915(e)(2)(B)(i), of his complaint, which was filed pursuant to 42 U.S.C. §§
1983 and 1985. For the reasons that follow, we AFFIRM the dismissal.
I. BACKGROUND
Weaver was arrested and convicted of drug possession in 2004. Three years
later, he filed suit under §§ 1983 and 1985 seeking compensatory and punitive
damages from various state and local officials in connection with the arrest.1 The
district court determined that all of his claims were frivolous and thus dismissed
them pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). Weaver moved to appeal this
ruling and sought leave to proceed in forma pauperis, which the district court
1
Weaver’s son, Chester Weaver, Jr., was also listed as a plaintiff in the complaint, but
the district court dismissed his claim for failure to pay the filing fee or seek in forma pauperis
status. He did not appeal that judgment.
2
denied. We determined that the appeal was not frivolous and thus granted Weaver
leave to proceed with his appeal in forma pauperis.
Weaver made a number of allegations regarding Detective W.J. O’Leary, a
narcotics officer in the Nassau County sheriff’s department. According to Weaver,
O’Leary obtained a search warrant based on an affidavit that contained incorrect
and falsified information about the location to be searched as well as the probable
cause for such a search. See R1-1 at 9. Weaver also alleged that O’Leary forged
the signature of the county judge, Robert Williams, on the warrant and, in
conjunction with other police officers, used this falsified warrant to search
Weaver’s trailer and illegally confiscate his property without due process. See id.
at 9-10. Additionally, Weaver asserted that he was subjected to malicious
prosecution by O’Leary. See id. at 16-17.
Weaver also made additional claims against four other officials – Ray
Geiger, the Nassau County Sheriff; Robert Williams and Robert Foster, both
Circuit Judges in Nassau County; and Granville Burgess, an Assistant State’s
Attorney for Nassau County – as well as against Nassau County itself. He alleged
that Sheriff Geiger had established a pattern or practice of false arrests, illegal
searches and other forms of corrupt behavior within the police department and that
Nassau County tolerated this behavior by failing to discipline him. See id. at 13-
3
16, 21-23. Additionally, he asserted that Williams, Foster, and Burgess conspired
to violate his rights by tacitly accepting this pattern of corruption and approving
the falsified search warrant and affidavit. See id. at 17-21. Weaver also sought
supplemental jurisdiction for a state law negligence claim against Geiger and other
sheriff’s department officers regarding the false arrest and prosecution as well as
the deprivation of property without due process. See id. at 23-25. Weaver’s
complaint could be read as claiming ineffective assistance of counsel, though he
never identified that as a separate or distinct issue.
II. DISCUSSION
We review a § 1915(e)(2)(B)(i) dismissal based on frivolity for abuse of
discretion. See Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002). “For
purposes of § 1915(e)(2)(B)(i), an action is frivolous if it is without arguable merit
either in law or fact.” Id. (citation omitted). The factual allegations set forth must
be sufficient to “raise a right to relief above the speculative level.” Bell Atlantic
Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955, 1965 (2007). Since Weaver is
filing pro se, we analyze his pleadings under a liberal standard. See Hughes v.
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003).
Based on Weaver’s brief on appeal, a number of the claims in the complaint
have been waived. His brief includes no discussion of the state law negligence
4
claim, Nassau County’s approval of the corrupt police practices, or of any
conspiracy claim under § 1985. We deem any “issues not briefed on appeal by a
pro se litigant [to be] abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th
Cir. 2008) (per curiam). Additionally, Weaver only mentions Sheriff Geiger’s
approval of police malfeasance in the context of describing the alleged conspiracy
by Burgess and the two judges. Such a brief mention, absent any substantive
argument on the merits, amounts to a waiver of that claim. See Farrow v. West,
320 F.3d 1235, 1242 n.10 (11th Cir. 2003).
A. Claims Against Detective O’Leary and Other Police Officers
Section 1983 permits a plaintiff to obtain civil damages from any person
who deprives him of constitutional rights, so long as that person is acting under
color of state law. See 42 U.S.C. § 1983. However, this relief is unavailable for
deprivations of property without due process “if a meaningful postdeprivation
remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct.
3194, 3204 (1984). In addition, § 1983 plaintiffs may only “recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid” if they
can demonstrate that the conviction or sentence has somehow been invalidated.
Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct. 2364, 2372-73 (1994).
5
The district court rejected all of Weaver’s claims with respect to the alleged
illegal search and seizure by O’Leary and the other police officers. Based on a
liberal reading of the complaint, Weaver’s claim appears to involve three different
potential violations – O’Leary’s alleged forging of Judge Williams’s signature, the
search warrant’s reliance on false statements by confidential informants, and the
deprivation of property without due process as a result of the use of this allegedly
invalid warrant. The court determined that the last of these claims was foreclosed
since Florida state law provided an adequate alternate remedy. See R1-6 at 8-9.
Florida has expressly waived state sovereign immunity for tort suits involving,
inter alia, loss of property caused by state employees or agents acting within the
scope of their employment. See Fla. Stat. 768.28(1) (2008). The district court thus
did not abuse its discretion in determining that this relief qualifies as the type of
“meaningful remedy” required under Hudson. See Hudson, 468 U.S. at 533, 104
S. Ct. at 3204.
The rationale for the district court’s rejection of the other two allegations is
less clearly articulated, but the decision did not constitute an abuse of discretion.
The court discussed “negligent processing of the search warrant,” which it deemed
not to involve the infringement of any particular federal constitutional or statutory
right, thus making § 1983 relief unavailable. R1-6 at 9. Additionally, the court
6
noted that some of Weaver’s claims amounted to challenges to the legality of his
conviction, which had to be pursued through habeas review. See id. at 5. The
“negligent processing” rationale would seem to encompass the forgery allegation,
which Weaver describes as a violation of state, not federal, law. Since Weaver
fails to assert a federal right, the district court was justified in rejecting the forgery-
based claim.
Additionally, the district court’s discussion of impermissible challenges to
the legality of Weaver’s conviction sufficiently addresses the claim that the search
warrant had an invalid basis. We have previously held that such claims can be
brought even without proof that the underlying conviction has been called into
question. See Hughes, 350 F.3d at 1160 (“Because an illegal search or arrest may
be followed by a valid conviction, . . . a successful § 1983 action for Fourth
Amendment search and seizure violations does not necessarily imply the invalidity
of a conviction. As a result, Heck does not generally bar such claims.”). However,
we have also determined that Heck would still preclude those claims that “if
successful, would necessarily imply the invalidity of the conviction because they
would negate an element of the offense.” Id. at 1160 n.2. In order to determine
whether such a negation would occur, we must look at both “the claims raised
under § 1983" and “the specific offenses for which the § 1983 claimant was
7
convicted.” Id.
Weaver’s conviction for possession with intent to distribute was premised on
the methadone uncovered during the search permitted by the allegedly improper
warrant. Accordingly, if Weaver was successful in his claim, it would cast doubt
on the validity of an essential element of the offense for which he was found guilty.
His allegation of an invalid basis for the search warrant thus amounts to the kind of
attack on the factual basis for a conviction that we have deemed impermissible
under Heck. See Baxter v. Crawford, 233 Fed. Appx. 912, 916 (11th Cir. 2007)
(per curiam) (barring a Bivens claim alleging illegal search and seizure for an
individual convicted of cocaine distribution and possession, since such an action
would attack the factual basis for his conviction). Given this potential outcome,
the district court did not abuse its discretion in dismissing the illegal search claims.
Weaver also seems to be appealing the district court’s denial of his
malicious prosecution claim against O’Leary and other officers. The court rejected
such a claim based on Heck, noting that Weaver presented no evidence showing
that his conviction had been called into question, thus making such a motion
premature. See R1-6 at 7-8. Since this determination accords with the facts
discussed in Weaver’s complaint, the court was within its discretion in dismissing
this claim.
8
B. Claims Against ASA Burgess, Judge Williams, and Judge Foster
The district court rejected the conspiracy claims against Assistant State’s
Attorney Burgess and Judges Williams and Foster, finding them to be both
“fantastic and delusional” and otherwise precluded by absolute prosecutorial and
judicial immunity. See R1-6 at 5, 6-7. As an initial matter, Weaver’s conspiracy
allegations appear to be completely baseless, since he presents no evidence to
justify his claims. See Denton v. Hernandez, 504 U.S. 25, 32, 112 S. Ct. 1728,
1733 (1992) (declaring that district courts can dismiss in forma pauperis claims
“whose factual contentions are clearly baseless”).
Furthermore, the district court was justified in finding that both judges and
the Assistant State’s Attorney were immune from suit. “Judges are entitled to
absolute judicial immunity from damages for those acts taken while they are acting
in their judicial capacity unless they acted in the clear absence of all jurisdiction.”
Bolin v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000) (per curiam) (citation
omitted). “This immunity applies even when the judge's acts are in error,
malicious, or were in excess of his or her jurisdiction.” Id. Similarly, “[a]
prosecutor is entitled to absolute immunity from suit for all actions he takes while
performing his function as an advocate for the government.” Rivera v. Leal, 359
F.3d 1350, 1353 (11th Cir. 2004). In this case, the judges’ actions constituted
9
normal judicial functions, and Burgess’s actions were all performed in the
initiation and pursuit of criminal prosecution against Weaver. Since Weaver
offered no facts or law to support his allegations that they were all acting outside
the scope of their office in their dealings with him, they are all entitled to absolute
immunity. The district court was thus justified in dismissing those claims.
III. CONCLUSION
Weaver appeals the district court’s dismissal, under 28 U.S.C.
§ 1915(e)(2)(B)(i), of his § 1983 suit alleging constitutional violations in
connection with his arrest and subsequent conviction on drug possession charges.
Based on the facts and law discussed in Weaver’s complain and brief on appeal,
the district court did not abuse its discretion in dismissing the suit as frivolous.
Accordingly, we affirm the district court’s dismissal of Weaver’s complaint.
AFFIRMED.
10