Zeigler v. Georgia Department of Corrections et al

Filing 3

REPORT AND RECOMMENDATIONS dismissing with prejudice 1 Complaint and GRANTING 2 MOTION for Leave to Proceed in forma pauperis filed by Samuel Sir-Nicholas Zeigler. Objections to R&R due by 5/2/2017. Signed by Magistrate Judge G. R. Smith on 4/18/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
SAMUEL SIR-NICHOLAS ZEIGLER,
Plaintiff,
v.

CV417-018

GEORGIA DEPARTMENT OF
CORRECTIONS, and GEORGIA
BOARD OF PARDONS AND PAROLES
Defendants.

REPORT AND RECOMMENDATION
Pro se plaintiff Samuel Zeigler brings this action against the
Georgia Department of Corrections and Georgia Board of Pardons and
Paroles alleging procedural problems at his parole revocation hearing.
Doc. 1 at 3. Zeigler, who is no longer incarcerated, asks this Court to

“rule that [his] incarceration” (presumably after his parole was revoked)
“was in fact unlawful and arbitrary” and to award him $536,000,000 in
damages from each defendant.

Id. at 4. Since Zeigler appears to be

indigent, the Court GRANTS his motion to proceed in forma pauperis
(IFP). Doc. 2. The Court must, therefore, screen out any claims that are
(1) frivolous or malicious, (2) fail to state a claim on which relief may be

granted, or (3) seek monetary relief against a defendant who is immune
from such relief. 28 U.S.C. § 1915(e)(2).

Zeigler’s Complaint should be dismissed because both defendants
are immune from suit under the Eleventh Amendment.

“The Eleventh

Amendment insulates a state from suit brought by individuals in federal
court unless the state either consents to suit or waives its Eleventh

Amendment immunity.”

Stevens v. Gay , 864 F.2d 113, 114 (11th Cir.

1989). State agencies like the Department of Corrections and Board of
Pardons and Paroles are equally immune.

See Alabama v. Pugh, 438

U.S. 781, 782 (1978) (“There can be no doubt, however, that suit against
the State and its Board of Corrections is barred by the Eleventh
Amendmen t,” absent consent); Stevens , 864 F.2d at 115 (suit against
Georgia Department of Corrections is barred by Eleventh Amendment);

Fuller v. Ga. State Bd. of Pardons & Paroles , 851 F.2d 1307, 1309 (11th
Cir. 1988) (Parole Board entitled to Eleventh Amendment immunity).
This immunity extends to all claims for relief, including damages and
equitable relief. See Stevens , 864 at 115 (citing Pennhurst State School &

Hosp. v. Halderman , 465 U.S. 89, 100 (1984)); see also Seminole Tribe of
Fla. v. Florida , 517 U.S. 44, 58 (1996) (“[W]e have often made it clear

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that the relief sought by a plaintiff suing a State is irrelevant to the

question whether the suit is barred by the Eleventh Amendment.”).
Accordingly, Zeigler’s claims should be dismissed.
Even if Zeigler were to name a proper defendant, however, his
Complaint fails to state a claim upon which relief can be granted. He
alleges that he was unlawfully imprisoned after a procedurally improper
parole revocation hearing, and he seeks both a declaration that his
resulting incarceration was “in fact unlawful and arbitrary” and money
damages. Doc. 1 at 3-4. But “in order to recover damages for allegedly
unconstitutional conviction or imprisonment . . . 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 .” Heck v. Humphry ,
512 U.S. 477, 486-87 (1994). Zeigler has offered no such proof. Although
he discloses a pending lawsuit in state court, doc. 1 at 2, he does not
allege that his parole revocation or former confinement has been called
into question, much less overturned, see id. at 3. His claims are,

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therefore, Heck -barred. 1
A glimmer of hope remains for Zeigler. Where federal habeas relief
was not available to the prospective § 1983 plaintiff while he was
incarcerated, it is possible that the Heck -bar would not apply to a § 1983
suit brought upon his release from custody.

See, e.g., Reilly v. Herrera,

622 F. App’x 832, 833 -35 (11th Cir. 2015) (the Eleventh Circuit, which
has “ not explicitly ruled on whether ” there is a such a futility exception
to Heck ’ s general rule, declined to do so in a case where the former
prisoner had had ample time to challenge the validity of his supervised
release revocation prior to his release from custody but failed to do so);

Vickers v. Donohue , 137 F. App’x 285, 289 (11th Cir. 2005) (noting intercircuit split, and that Eleventh Circuit has “not explicitly ruled on
whether a plaintiff who has no federal habeas remedy available to him
may proceed under § 1 983 despite” Heck bar); Powers v. Hamilton Cnty.

Public Defender Comm’n , 501 F.3d 592, 602-03 (6th Cir. 2007)
(discussing circuit split on whether

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Heck ’s favorable -termination

That “ Heck bar” extends to declaratory relief, see Wilkinson v. Dotson , 544 U.S. 74,
81-82 (2005) ( Heck bar applies “no matter the relief sought (damages or equitable
relief) . . . if success . . . would necessarily demonstrate the invalidity of confinement
or its duration.”), and to “revocations . . . of parole,” Dixon v. Kelly , 2011 WL
5554011 at * 2 (S.D. Ga. Oct. 18, 2011) (citing, inter alia , Littles v. Bd. of Pardons &
Paroles Div. , 68 F.3d 122, 123 (5th Cir. 1995)).
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requirement applies regardless of availability of habeas relief).

Zeigler’s allegations concerning the revocation of his parole are not
sufficiently detailed to confirm that he had (and failed to use) the
opportunity to challenge that decision via state, if not federal habeas,
post-conviction remedies. See doc. 1 at 3. Assuming that he had such an
opportunity, his failure to pursue such remedies supports the application
of the Heck bar, despite the present unavailability of habeas relief.

See

Reilly, 622 F. App’x at 834 (citing Guerrero v. Gates , 442 F.3d 697, 705
(9th Cir. 2006) (finding failure to timely pursue available remedies was

not “a shield against the implications of Heck .”)) (holding that Supreme
Court precedent did not support “a broad exception [to the Heck bar] to
include prisoners who had the opportunity to challenge their underlying

convictions, but failed to do so.”) .
Although Zeigler’s Complaint should be dismissed, if he bel ieves
that it can be amended to state a viable claim ( i.e. , he must plead and
ultimately show that he did not bypass available remedies), he may
object to this Report and Recommendation (R&R) and amend his
Complaint within 14 days from the date it is served on him. See Langlois

v. Traveler’s Ins. Co. , 401 F. App’x 425, 426 -27 (11th Cir. 2010) (pro se

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plaintiff afforded an opportunity to amend Complaint before dismissal);

Cockrell v. Sparks , 510 F.3d 1307, 1310 (11th Cir. 2007) (same). If he is
not able to amend his Complaint to address the obstacles discussed
above, he may simply take no action and his Complaint should be

DISMISSED without prejudice.
This R&R is submitted to the district judge assigned to this action,
pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 72.3.
Within 14 days of service, any party may file written objections to this
R&R with the Court and serve a copy on all parties. The document

should be captioned “Objections to Magistrate Judge’s Report and
Recommendations.” Any request for additional time to file objections
should be filed with the Clerk for consideration by the assigned district
judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The

district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. ,

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648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x
542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED , this 18th day of
April, 2017.
-

UNITED STATES MAGISTRATE JUDGE
SOUThER}'T DISTRICT OF GEORGIA

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