De'Carlos Bobby Butler v. State of Georgia

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[DO NOT PUBLISH]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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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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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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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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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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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.