USCA11 Case: 22-10291 Document: 73-1 Date Filed: 12/07/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10291
Non-Argument Calendar
____________________
DE’CARLOS BOBBY BUTLER,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
ATTORNEY GENERAL, STATE OF GEORGIA,
THE DISTRICT OF FULTON COUNTY,
DEKALB COUNTY,
DISTRICT ATTORNEY OFFICE, OF FULTON COUNTY, et al.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 22-10291
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-01589-SCJ
____________________
Before ROSENBAUM, NEWSOM, and BRASHER, Circuit Judges.
PER CURIAM:
De’Carlos Butler, proceeding pro se, appeals the district
court’s dismissal with prejudice of his
42 U.S.C. § 1983 amended
complaint for failure to state a viable claim and its denial as futile
of his motion for leave to file a second amended complaint. After
careful review, we affirm.
I.
In April 2021, Butler filed a civil-rights lawsuit under § 1983
against nearly thirty Georgia state, county, and municipal entities
and officials. The suit arose out of his state criminal proceedings.
According to the operative amended complaint, Butler was found
guilty of a felony in March 2012 and received a “modified” sentence
of eight years, with one to be served in confinement. In April 2014,
he was resentenced to twenty years, with eight years in confine-
ment, later was reduced to six years in confinement in July 2015.
Butler alleged that the 2014 sentence was a “void, illegal, and
double jeopardy sentence” imposed in violation of his rights under
the Fourth, Fifth, Eighth, Thirteenth, Fourteenth, and Fifteenth
Amendments to the U.S. Constitution, as well as under state law.
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22-10291 Opinion of the Court 3
Because, in Butler’s view, the sentence was void, his original sen-
tence “expired” in May 2019, and he had been unlawfully arrested
and confined from February 2020 to March 2021 for a probation
violation stemming from the underlying sentence. Butler sought
injunctive relief from the sentence and monetary damages.
The amended complaint did not otherwise identify specific
wrongful actions by specific defendants or explain why Butler be-
lieved his sentence was illegal and void. Nevertheless, an opinion
by the Georgia Supreme Court arising from Butler’s state postcon-
viction proceeding provides some relevant context. State v. Butler,
804 S.E.2d 414, 416 (Ga. 2017).
According to the Georgia Supreme Court, in January 2011,
Butler entered a non-negotiated plea under the First Offender Act,
O.C.G.A. § 42-8-60 et seq., and was sentenced to 8 years and to
serve 18 months. Id. at 415. In March 2012, his sentence was mod-
ified by agreement “to instead serve one year” rather than 18
months.
In November 2013, the state petitioned to revoke Butler’s
probation. The trial court agreed to maintain his first offender pro-
bation on the condition that he spend six months of weekends in
jail. But Butler failed to report to jail after two weekends, and he
was arrested in January 2014 and March 2014 for other crimes.
That led to a hearing in April 2014, at which “his first offender sen-
tence was revoked, and he was re-sentenced to 20 years to serve 8,
with the balance of 12 years to be served on probation.” Id. Then,
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in July 2015, “the trial court amended Butler’s sentence to 20 years
to serve 6, with the balance of 14 years probated.” Id. at 416.
In the state postconviction proceeding, the habeas court
agreed with Butler’s argument that the March 2012 sentence mod-
ification “constituted an adjudication of guilt and thus terminated
his first offender status.” Id. As a result, according to the habeas
court, Butler was not a first offender when, in April 2014, the trial
court purported to revoke his first-offender sentence and resen-
tenced him under the First Offender Act, and his attorney was in-
effective for failing to raise the issue. The state appealed that rul-
ing, but the Georgia Supreme Court declined to resolve it, holding
that Butler’s claim of ineffective assistance based on his first-of-
fender status was not raised soon enough and so was procedurally
barred. Id. at 416–17. Thus, the court reversed the decision grant-
ing habeas relief. Id. at 417.
Back in the district court, the defendants filed motions seek-
ing dismissal of Butler’s lawsuit on multiple grounds, including fail-
ure to state a claim and various types of immunity. While those
motions were pending, Butler requested leave to amend and sub-
mitted proposed amendments. He did not respond in opposition
to the motions to dismiss.
The district court granted the motions to dismiss and denied
leave to amend. In the court’s view, Butler failed to state a claim
because he did not “connect Defendants to any facts indicating that
they committed any specific unlawful acts.” The court noted that
“no Defendant is alleged to have committed any specific act” and
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22-10291 Opinion of the Court 5
that Butler’s factual allegations “consist of instances of him being
arrested, convicted, or sentenced paired with conclusory allega-
tions that these incidents violated his rights,” which were insuffi-
cient to state a plausible claim.
The district court also concluded that the lawsuit was sub-
ject to dismissal because Butler failed to show that “Defendants do
not enjoy immunity or are otherwise subject to this lawsuit.” The
court explained that several named defendants were not legal enti-
ties subject to suit, that Butler failed to allege a policy or custom
for municipal liability, that many defendants were protected by
Eleventh Amendment and sovereign immunity, that the individual
defendants enjoyed qualified immunity for any § 1983 claim, that
judges and prosecutors were entitled to absolute immunity, and
that the Rooker-Feldman1 doctrine barred Butler’s collateral attack
on his sentence. Finding that those same defects were present in
the proposed amendments, the district court denied as futile But-
ler’s motion for leave to amend. Butler appeals, arguing that the
district court erred in dismissing his amended complaint and deny-
ing leave to amend. For the reasons set forth below, we now af-
firm.
1 The Rooker-Feldman doctrine is named for Rooker v. Fidelity Trust Co.,
263
U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman,
460
U.S. 462 (1983).
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II.
We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim under Rule 12(b)(6), Fed. R. Civ.
P., accepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff. Hunt v. Aimco
Props., L.P.,
814 F.3d 1213, 1221 (11th Cir. 2016). We also liberally
construe documents written by pro se litigants. Timson v.
Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Rule 8’s standard “does not require detailed factual
allegations, but it demands more than an unadorned, the-defend-
ant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,
556 U.S.
662, 678 (2009) (quotation marks omitted). Rather, to prevent dis-
missal under Rule 12(b)(6), a plaintiff must plead sufficient facts to
state a claim that is “plausible on its face.” Hunt, 814 F.3d at 1221
(quotation marks omitted). A claim is facially plausible “when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (quotation marks omitted).
To state a claim under
42 U.S.C. § 1983, “a plaintiff must al-
lege facts showing that the defendant’s act or omission, done under
color of state law, deprived him of a right, privilege, or immunity
protected by the Constitution or laws of the United States.” Emory
v. Peeler,
756 F.2d 1547, 1554 (11th Cir. 1985). The plaintiff’s fac-
tual allegations must connect the defendants with the alleged
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22-10291 Opinion of the Court 7
constitutional violation. Douglas v. Yates,
535 F.3d 1316, 1321–22
(11th Cir. 2008).
Here, the district court did not err in granting the defend-
ants’ motions to dismiss. The court found that the amended com-
plaint failed to state a claim because it did not connect the defend-
ants to any specific unlawful acts. We agree. As the court ob-
served, the allegations “consist of instances of him being arrested,
convicted, or sentenced paired with conclusory allegations that
these incidents violated his rights.” The allegations did not identify
how Butler’s sentences were void or illegal or how the defendants
violated Butler’s constitutional rights. The court properly con-
cluded that these conclusory allegations of wrongdoing were insuf-
ficient to state a claim. See Hunt, 814 F.3d at 1221; Iqbal,
556 U.S.
at 678. For these reasons, we affirm the dismissal of Butler’s
amended complaint.
III.
We also affirm the district court’s denial as futile of leave to
amend. We review that decision de novo. Freeman v. First Union
Nat’l,
329 F.3d 1231, 1234 (11th Cir. 2003).
A district court should freely give leave to amend “when jus-
tice so requires.” Fed. R. Civ. P. 15(a)(2). A pro se party ordinarily
must be given at least one chance to amend the complaint before
the court dismisses an action with prejudice. Woldeab v. Dekalb
Cnty. Bd. of Educ.,
885 F.3d 1289, 1291 (11th Cir. 2018). But a court
need not grant leave to amend when “a more carefully drafted
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8 Opinion of the Court 22-10291
complaint could not state a claim.”
Id. (quotation marks omitted).
In other words, the court may deny leave to amend when amend-
ment would be futile. Corsello v. Lincare, Inc.,
428 F.3d 1008, 1014
(11th Cir. 2005). “The futility issue is concerned less with whether
[the plaintiff] has otherwise stated a claim . . . than with whether,
when all is said and done, he can do so.” Silberman v. Miami Dade
Transit,
927 F.3d 1123, 1133 (11th Cir. 2019).
Here, the district court did not err by denying leave to
amend. Taking all his filings into account, we are not persuaded
that Butler could state a plausible claim even with a more carefully
drafted complaint. Despite the nearly thirty named defendants,
Butler’s claims boil down to a collateral attack on the sentence im-
posed by the state trial court in April 2014, when the court revoked
(or purported to revoke) his first-offender sentence and resen-
tenced him under the First Offender Act. In Butler’s view, the
court lacked the authority to resentence him because, due to a sen-
tence modification in March 2012, he had been adjudicated guilty
of a felony and lost his first-offender status at that time. Butler does
not allege that the defendants committed any conduct that would
be wrongful even if the 2014 sentence were valid. Rather, the de-
fendants’ § 1983 liability was based solely on the allegedly illegal
sentence.
But when a plaintiff convicted in state court challenges “the
nature or duration of his sentence, [his] claim must be raised in a
[28 U.S.C.] § 2254 habeas petition, not a § 1983 civil rights action.”
Hutcherson v. Riley,
468 F.3d 750, 754 (11th Cir. 2006). “These
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avenues are mutually exclusive: if a claim can be raised in a federal
habeas petition, that same claim cannot be raised in a separate §
1983 civil rights action.” Id.
Because Butler sought injunctive relief that would invalidate
or change the nature or duration of his sentence, his claim was not
cognizable under § 1983 and instead was subject to the habeas rules
of § 2254. See id. While Butler also sought monetary relief, that
makes no difference because a § 1983 suit for damages must be dis-
missed if “a judgment in favor of the plaintiff would necessarily im-
ply the invalidity of his conviction or sentence.” Heck v. Humph-
rey,
512 U.S. 477, 487 (1994). “[I]f it would, the complaint must be
dismissed unless the plaintiff can demonstrate that the conviction
or sentence has already been invalidated.”
Id. at 487. Because there
is no indication that the 2014 sentence has been invalidated, and
Butler’s claims would necessarily imply the invalidity of his sen-
tence, the Heck bar applies. 2
Butler argues that the Supreme Court has limited Heck to
“only those prisoners who were still incarcerated,” and that it does
not apply to those who, like Butler, allege unconstitutional confine-
ment but are “unable to petition for habeas corpus relief.” This
argument fails for two reasons. First, this exception was set forth
2 Butler’s briefing vaguely refers to a ruling by the Supreme Court of Georgia
on March 4, 2019, regarding the prior habeas decision, but it does not appear
that the court published its ruling, and Butler does not suggest that the court
invalidated his sentence.
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10 Opinion of the Court 22-10291
in a concurring opinion in Spencer v. Kemna,
523 U.S. 1, 21 (1998)
(Souter, J., concurring), and neither the Supreme Court nor this
Court has applied this exception in a published opinion.
And second, even if we were bound by the exception de-
scribed in Justice Souter’s concurrence, it would not apply here be-
cause we see no indication that Butler is “no longer ‘in custody’
within the meaning of the habeas statute.”
Id. at 20. While he may
not be currently confined, he is still considered to be “in custody”
for purposes of
28 U.S.C. § 2254 because, according to Butler, his
allegedly unlawful sentence does not expire until 2027. See Du-
vallon v. Florida,
691 F.2d 483, 485 (11th Cir. 1982) (“In the context
of habeas proceedings, the ‘in custody’ requirement may also be
met where a petitioner is on probation, parole or bail.”). As a re-
sult, Butler still suffers from “present restraint” attributable to his
state conviction. Diaz v. Fla. Fourth Jud. Cir.,
683 F.3d 1261, 1263
(11th Cir. 2012). Accordingly, Butler’s case does not fall within the
exception described in Justice Souter’s concurrence.
To the extent any of Butler’s claims survive the Heck bar—
and we don’t think any do—we fail to see any indication in the rec-
ord that Butler could overcome the significant and numerous ob-
stacles to establishing the defendants’ liability, for the reasons ex-
plained in greater detail by the district court.
For these reasons, we conclude that a more carefully drafted
complaint could not state a plausible claim to relief, and the district
court did not err by denying leave to amend. We affirm the district
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court’s dismissal of Butler’s amended § 1983 complaint and its de-
nial as futile of leave to amend.
AFFIRMED.
