Giovanni DePalma v. State of Florida

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14292
Non-Argument Calendar
____________________
GIOVANNI DEPALMA,
Plaintiff-Appellant,
versus
STATE OF FLORIDA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:22-cv-02745-CEH-CPT
____________________
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2 Opinion of the Court 22-14292
Before NEWSOM , BRASHER , and B LACK , Circuit Judges.
PER CURIAM:
Giovanni DePalma, proceeding pro se, appeals the district
court’s dismissal of his 42 U.S.C. § 1981 civil complaint for failure
to state a claim in light of Preiser v. Rodriguez, 411 U.S. 475 (1973),
and Heck v. Humphrey, 512 U.S. 477 (1994). DePalma asserts the
district court erred by not addressing his arguments regarding the
state criminal convictions challenged in his complaint, including
that the state trial court lacked subject matter jurisdiction and vio-
lated the Double Jeopardy Clause. After review,1 we affirm.
A court shall dismiss a prisoner’s complaint if the court de-
termines that the complaint “is frivolous, malicious, or fails to state
a claim upon which relief may be granted.” 28 U.S.C.
§ 1915A(b)(1). “[W]hen a state prisoner is challenging the very fact
or duration of his physical imprisonment, and the relief he seeks is
a determination that he is entitled to immediate release or a speed-
ier release from that imprisonment, his sole federal remedy is a writ
of habeas corpus.” Preiser, 411 U.S. at 500.
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,
1 A district court’s dismissal of a complaint for failure to state a claim is re-
viewed de novo, viewing the allegations in the complaint as true. Mitchell v.
Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997).
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22-14292 Opinion of the Court 3
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. Although Heck
involved a prisoner seeking money damages, the Supreme Court
later clarified that prisoners cannot use § 1983 to obtain relief
where success would imply the invalidity of a conviction or sen-
tence, even if the prisoner is seeking injunctive relief. Wilkinson v.
Dotson, 544 U.S. 74, 81-82 (2005).
The district court did not err in dismissing DePalma’s com-
plaint as barred under Preiser and Heck. First, although DePalma
presented his claim under § 1981 rather than § 1983, Preiser and
Heck apply to his § 1981 complaint. Liberally construing his com-
plaint, DePalma likely meant to challenge his conviction under
§ 1983, rather than § 1981, because he raises constitutional claims,
not claims regarding racial discrimination in making or enforcing a
contract. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998) (stating pro se pleadings are liberally construed); compare
42 U.S.C. § 1983 with 42 U.S.C. § 1981. Moreover, Preiser and Heck
apply to § 1981 claims as well as § 1983 claims. See Cruz v. Skelton,
502 F.2d 1101, 1102 (5th Cir. 1974)2 (citing Preiser and holding that
since relief sought by prisoner was injunctive relief requiring his
release from confinement, his proper remedy was habeas corpus,
not a suit under § 1981). DePalma’s complaint challenges the
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 22-14292
validity of his convictions, and he requests “immediate discharge”
from incarceration. These claims are precisely the type that are
barred by Preiser because DePalma is seeking a determination he is
entitled to an immediate release. See Preiser, 411 U.S. at 500. De-
Palma’s claims are also barred by Heck because a determination he
is entitled to immediate release because the amended information
leading to his conviction was void would necessarily undermine
the validity of his convictions, and he has not demonstrated that
his convictions have been overturned. See Heck, 512 U.S. at 486-
87; Wilkinson, 544 U.S. at 81-82.
Additionally, even if the district court had liberally con-
strued his complaint as a habeas petition, it would have been dis-
missed as an unauthorized second or successive petition because
DePalma had already filed a habeas petition and had not received
authorization from this Court to file a second or successive peti-
tion. See 28 U.S.C. § 2244(b)(3)(A) (providing to file a second or
successive § 2254 petition, a petitioner must first get approval from
this Court); Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997) (ex-
plaining without our authorization, the district court lacks jurisdic-
tion to consider a second or successive petition). Accordingly, we
affirm.
AFFIRMED.
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