United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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incarceration" (presumably after his parole was revoked)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).
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 Amendment, "
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 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
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, therefore,
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-hair 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 inter-circuit 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 § 1983 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 Heck's favorable-termination
requirement applies regardless of availability of habeas
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.").
Zeigler's Complaint should be dismissed, if he believes
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 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
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.
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., 648 F.App'x 787, 790 (11th Cir.
2016); Mitchell v. U.S., 612 F.App'x 542, 545
(11th Cir. 2015).
REPORTED AND RECOMMENDED.
 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. ...