           Case: 14-11360     Date Filed: 07/27/2015     Page: 1 of 7


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                              No. 14-11360-DD
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:13-cv-23077-WJZ


SEAN P. REILLY,

                                                  Plaintiff - Appellant,

versus

GUELSY HERRERA,
individual capacity,
ERIC ABRAHAMSEN,
individual capacity,
JENNIFER CHRISTINE DAVIS,
JIM H. DAVIS,
CARMEN I. GONZALEZ, et. al.,


                                                  Defendants - Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                         _______________________

                                (July 27, 2015)
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Before TJOFLAT, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Mr. Sean P. Reilly, proceeding pro se, appeals the district court’s sua sponte

dismissal of his civil rights complaint for failure to state a claim pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii). Because we agree that Heck v. Humphrey, 512 U.S.

477 (1994), bars Mr. Reilly’s claims, we affirm.

                                         I

      On August 26, 2013, Mr. Reilly filed an action under 42 U.S.C. § 1983

against probation officers Guelsy Herrera and Carmen Gonzalez, private citizens

Jim and Jennifer Davis, State Attorney William Meggs, and Assistant State

Attorney Eric Abrahamsen. He alleged that Ms. Davis harbored animosity toward

him due to a prior failed relationship between them, and Ms. Davis and her father

conspired with the other named defendants to send him to jail for a supervised

release violation. Mr. Reilly claimed that the defendants’ unlawful actions led to

the revocation of his supervised release and a sentence of imprisonment of 60

months, in violation of his Fourth Amendment rights. Mr. Reilly was released from

prison on the supervised release violation on December 1, 2013, after serving three

years, and is currently serving a new sentence for an unrelated crime in the Leon

County Jail.




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      Pursuant to § 1915(e)(2)(B)(ii), the district court dismissed Mr. Reilly’s

complaint, ruling that Heck’s favorable-termination requirement barred the

complaint because it challenged the revocation of supervised release. The district

court also ruled that the defendants either acted within the scope of their authority

and were entitled to absolute immunity, or did not act under color of state law.

Further, the district court concluded that Mr. Reilly did not raise a cognizable

conspiracy claim because he failed to show the existence of an agreement between

the defendants and improperly brought a § 1983 action for state tort claims.

      On appeal, Mr. Reilly asserts that the district court erred in its determination

that Heck barred his § 1983 action because an alleged Fourth Amendment violation

would not necessarily impugn the validity of his conviction. Mr. Reilly also argues

that Spencer v. Kemna, 523 U.S. 1, 18-21 (1998), provides an exception to Heck

that allows him to challenge his supervised release revocation under § 1983

without satisfying the favorable-termination requirement because he is no longer

“in custody,” and therefore not entitled to seek habeas relief. Finally, Mr. Reilly

raises several other arguments regarding the merits of the district court’s order.

                                          II

      A district court may dismiss a case filed in forma pauperis at any time if it

“fails to state a claim upon which relief may be granted.” 28 U.S.C. §

1915(e)(2)(B)(ii). “A complaint should not be dismissed for failure to state a claim


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unless it appears beyond doubt that the prisoner can prove no set of facts in support

of his claim which would entitle him to relief.” Harmon v. Berry, 728 F.2d 1407,

1409 (11th Cir. 1984) (citations omitted). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998) (per curiam) (citations omitted). “We review a district court’s sua sponte

dismissal of a suit for failure to state a claim for relief under [§ 1915] de novo.”

Harden v. Pataki, 320 F.3d 1289, 1292 (11th Cir. 2003) (citations omitted).


                                         III

      Heck generally bars any challenges to a previous conviction unless the

conviction “has been reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal authorized to make such a determination, or

called into question by a federal court’s issuance of a writ of habeas corpus.” Heck,

512 U.S. at 487. This is known as the “favorable-termination” requirement.

      In a concurring opinion in Spencer, Justice Souter, joined by three other

Justices, suggested an exception to Heck’s general rule. The exception would allow

plaintiffs who are no longer “in custody” to bring actions under § 1983 without

having to satisfy the favorable-termination requirement. See Spencer, 523 U.S. at

20-21. As he had earlier explained in his Heck concurrence:



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             If [those] individuals (people who were merely fined, for
      example, or who have completed short terms of imprisonment,
      probation, or parole, or who discover (through no fault of their own) a
      constitutional violation after full expiration of their sentences), like
      state prisoners, were required to show the prior invalidation of their
      convictions or sentences in order to obtain § 1983 damages for
      unconstitutional conviction or imprisonment, the result would be to
      deny any federal forum for claiming a deprivation of federal rights to
      those who cannot first obtain a favorable state ruling. The reason, of
      course, is that individuals not “in custody” cannot invoke federal
      habeas jurisdiction, the only statutory mechanism besides § 1983 by
      which individuals may sue state officials in federal court for violating
      federal rights. That would be an untoward result.

Heck, 512 U.S. at 500 (Souter, J., concurring).

      Drawing from Justice Souter’s concurrence in Spencer, Mr. Reilly argues

that Heck does not apply to his case because he has been released from custody and

cannot pursue post-conviction relief, thereby making Heck’s favorable-termination

requirement irrelevant. See Spencer, 523 U.S. at 21 (Souter, J., concurring) (“[A]

former prisoner, no longer “in custody,” may bring a § 1983 action establishing the

unconstitutionality of a conviction or confinement without being bound to satisfy a

favorable-termination requirement that it would be impossible as a matter of law

for him to satisfy.”).

      We have not explicitly ruled on whether a plaintiff may bring a § 1983

action in the event that habeas relief is unavailable, even if success on the merits

would call into question the validity of a conviction. We decline to do so here




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because Mr. Reilly’s case does not fit within the framework of scenarios

mentioned in Justice Souter’s Spencer concurrence.

      During his three-year term of imprisonment, Mr. Reilly had ample time to

pursue an appeal or other post-conviction remedies on the supervised release

revocation, yet he did not avail himself of any of them. We doubt that Justice

Souter intended to propose a broad exception to include prisoners who had the

opportunity to challenge their underlying convictions but failed to do so. See

Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir. 2003) (ruling that a defendant

“cannot now use his ‘failure timely to pursue habeas remedies’ as a shield against

the implications of Heck.”). Consequently, we conclude that Justice Souter’s

proposed Heck exception in Spencer, even if adopted, does not apply to Mr.

Reilly’s case.

      Additionally, Mr. Reilly’s claim that the allegations in the complaint did not

necessarily impugn the validity of his revocation fails. Mr. Reilly alleged that he

never violated the conditions of his supervised release, and that the defendants

engaged in a conspiracy to fabricate an arrest warrant and unlawfully seize him out

of spite. If the defendants did engage in such actions, then the arrest would be

unlawful and the revocation itself would be invalid. Such a claim falls squarely

within the purview of Heck. Therefore, we affirm the district court’s dismissal of

Mr. Reilly’s complaint.


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                                       IV

      For the foregoing reasons, we affirm the district court’s dismissal of Mr.

Reilly’s complaint.

      AFFIRMED.




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