           Case: 13-14012   Date Filed: 11/02/2015   Page: 1 of 9


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14012
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:13-cv-60865-RNS


ANTON DAMES,

                                                           Plaintiff-Appellant,


                                  versus


CITY OF HOLLYWOOD, FLORIDA,
SERGIO LOPEZ,
#2649,
CITY OF PLANTATION, FLORIDA,

                                                        Defendants-Appellees.

                      ________________________

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

                            (November 2, 2015)


Before HULL, MARCUS and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Anton Dames, a federal prisoner, appeals the district court’s sua sponte

dismissal without prejudice of his pro se civil rights complaint for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B)(ii). After a thorough review, we affirm.

                                           I.

      In his underlying criminal case, a jury convicted Dames of three counts of

distributing cocaine within 1,000 feet of a public playground in September 2011

and one count of possessing cocaine with the intent to distribute within 1,000 feet

of a public playground in November 2011, in violation of 21 U.S.C. §§ 841(a)(1)

and 860(a). The first three counts represented separate drug transactions involving

Dames and a confidential informant in September 2011 at his residence near a park

in Opa-Locka, Florida. The fourth count represented the drugs found in Dames’s

residence in November 2011, when he was arrested just before a planned fourth

drug transaction. Although the jury convicted Dames on all four counts, it found

in favor of Dames as to a fifth forfeiture count involving his residence. Dames was

later sentenced to a mandatory-minimum ten years’ imprisonment. This Court

affirmed Dames’s convictions and sentences on direct appeal. See United States v.

Dames, 556 F. App’x 793 (11th Cir.), cert. denied, Dames v. United States, 135 S.

Ct. 198 (2014).




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       In April 2013, Dames filed the instant pro se 1 civil rights complaint pursuant

to 42 U.S.C. § 1983, 2 naming three defendants: (1) Sergio Lopez, a police

detective in Hollywood, Florida; (2) the City of Hollywood, Florida; and (3) the

City of Plantation, Florida.3 In his complaint, Dames raised claims related to his

underlying criminal case, including allegations about falsified court documents,

false statements, auto theft, false imprisonment, and a “possible hate crime.”

Dames alleged that he had mailed packages to the “judge[s] and involved people in

case” that showed “all burden of proof.” As relief, Dames requested that his

criminal convictions be overturned, that criminal charges be brought against the

individuals involved in his entrapment and car theft, monetary damages, and any

other appropriate mandamus relief.

       Without requiring a response from the defendants, the magistrate judge

issued a report and recommendation (“R&R”), recommending that Dames’s

complaint be dismissed for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii). The R&R determined that Dames had stated his claims “in a


       1
        Although Dames proceeded pro se in the district court, this Court appointed Dames
counsel for his appeal.
       2
        Although Dames’s form complaint cited Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), the district court correctly
concluded that Dames’s action against state actors was properly brought pursuant to 42 U.S.C.
§ 1983.
       3
        The magistrate judge also identified Matthew Rasnake, an employee of the “Forfeiture
and Seized Property Unit,” as a defendant, but Dames’s complaint merely listed Rasnake as a
defendant in a previous lawsuit, not as a defendant in the instant action.
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completely conclusory fashion” and appeared to be attacking his federal criminal

convictions “in which it appears his car was forfeited.” Accordingly, the R&R

recommended the complaint be dismissed because Dames failed to state a claim

and because his claims were barred by Heck v. Humphrey, 512 U.S. 477, 114 S.

Ct. 2364 (1994), and were more appropriately raised in a 28 U.S.C. § 2255 motion

to vacate. The R&R noted that any “[c]laims related to the alleged unlawful

forfeiture of his car or any other property must be raised in a forfeiture action.”

       Overruling Dames’s objections, the district court adopted the R&R and

dismissed his complaint without prejudice on August 22, 2013. On September 3,

2013, Dames’s notice of appeal was filed in the district court.

       Six days after Dames filed his notice of appeal, he filed a post-judgment

pleading in the district court titled “Motion to be Loaned or Furnished the Record

on Appeal.”4 Filed with this motion was, among other things, a copy of a second

civil rights complaint dated August 31, 2013, in which Dames named the same

three above defendants plus a fourth, new defendant, Detective Tom Bradford. In

the portion of the form complaint asking about previous lawsuits, Dames listed the

instant action, Civil Action No. 0:13-cv-60865, which he said involved the same

facts. With respect to the disposition of the instant action, Dames stated that the


       4
         On August 30, 2013, Dames signed the certificate of service attached to the notice of
appeal, that was filed on September 3, 2013. On August 31, 2013, Dames signed the certificate
of service attached to the motion for the record.
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case was “closed and pending appeal.” In his motion for a copy of the record,

Dames did not mention, nor ask for relief as to, this second complaint filed with

the motion.

      The district court granted Dames’s motion for a copy of the record on

appeal, and did not mention Dames’s second complaint filed with that motion. The

district court also granted Dames leave to proceed on appeal in forma pauperis,

determining that his appeal was not frivolous. The instant appeal followed.

                                         II.

A.    Original Complaint

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim upon which relief can be granted under § 1915(e)(2)(B)(ii), viewing the

allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th

Cir. 2003).

      In this case, we find no merit to Dames’s argument that Heck does not apply

to his claims attacking his federal criminal convictions and seeking his release

from federal prison. In Heck, the Supreme Court held that:

      [I]n order to recover damages for allegedly unconstitutional
      conviction or imprisonment, or for other harm caused by actions
      whose unlawfulness would render a conviction or sentence invalid, 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, 28 U.S.C. § 2254.
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512 U.S. at 486-87, 114 S. Ct. at 2372. If such a § 1983 action is brought before

the challenged conviction or sentence is invalidated, it must be dismissed. Id. at

487, 114 S. Ct. at 2372. Thus, “the district court must consider whether a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence; if it would, the complaint must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id.

      Here, Dames’s claims in his original complaint—which essentially allege

that the defendants falsified documents and evidence in his prosecution—

necessarily implicate the validity of his underlying federal convictions for

distributing cocaine. Absent the invalidation of his convictions, which had not

occurred, Dames’s claims were barred. See id. Moreover, we agree with the

district court that the allegations in Dames’s original complaint were completely

conclusory. Accordingly, we affirm the district court’s dismissal of Dames’s

original complaint for failure to state a claim on which relief can be granted.

B.    Second Complaint Filed Post-Judgement

      In his appellate brief, Dames for the first time on appeal essentially asks this

Court to treat the second complaint, filed post-judgment, as an amended complaint

in the instant action. Dames refers to his “amended allegations” and argues that



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“his original complaint must be read in conjunction with, what is the functional

equivalent of, his amended complaint.”

      In this second complaint, Dames alleged that: (1) in September 2011

Detectives Lopez and Bradford conducted a search and seizure at his home without

a warrant “to create a crime” to arrest him; (2) Lopez and Bradford physically beat

a confidential informant over a period of days in order to coerce the informant to

entrap Dames into selling drugs; (3) law enforcement officials provided false

information about the “VIN #” of Dames’s car to the state court; (4) state officials

used a “false court motion to claim [his] Mercedes Benz from [the] FBI after [his]

arrest on November 2, 2011 after trial in 2012”; and (5) the “special verdict jury

instructed that all [Dames’s] property be returned and Sergio Lopez #2649

refuse[d] to do so as the Federal Jury requested.” As relief, Dames sought

compensation for the loss of “property, time, and employment and back pay owed

on mortgage,” and his “[r]elease [from] false imprisonment.”

      In this case, the district court never addressed Dames’s “amended”

complaint, which Dames filed after he filed his notice of appeal. Generally, the

filing of a notice of appeal divests the district court of jurisdiction “over the aspects

of the case involved in the appeal.” United States v. Diveroli, 729 F.3d 1339, 1341

(11th Cir. 2013) (quotation marks omitted). Thus, to the extent Dames intended

for his motion for a copy of the record on appeal, with which he filed the second


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complaint, to amend his original complaint, the district court had no jurisdiction to

consider those amended allegations. And, because Dames’s claims in the

“amended” complaint were not before the district court, we ordinarily would not

review those claims on the merits. See Access Now, Inc. v. SW. Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004) (explaining that this Court will not consider

issues on appeal that were not fairly presented below).

      Nonetheless, we do recognize that Dames now has counsel on appeal and

that Dames’s brief on appeal argues, for the first time, that his claims in the second

complaint concerning the illegal seizure of his car under the Fourth Amendment

are not Heck-barred because his car was not forfeited as part of his federal criminal

case, but as part of a state forfeiture case. See Hughes, 350 F.3d at 1160-61

(discussing whether certain claims are Heck-barred). Contrary to Dames’s

assertions, the claims in the second complaint essentially complain about falsified

documents, evidence, or acts in the federal prosecution against him and are Heck-

barred. As to his claims about his car, Dames’s federal indictment and the jury’s

“Special Verdict Form” show that the federal government sought to forfeit

Dames’s residence and the jury returned a special verdict as to the residence

located at 17910 NW 31st Avenue, Opa Locka, Florida.5 His car, however, was

not part of that forfeiture or the federal jury’s verdict in his favor. In any event,


      5
          Dames himself filed both the indictment and his Special Verdict Form.
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Dames’s second complaint is too conclusory to state a cognizable cause of action

with respect to any forfeiture outside his federal criminal case. Moreover, his

second complaint makes no allegations at all against the new defendant, Detective

Bradford, or the two defendant municipalities. And, his allegations about

Detective Lopez are conclusory and no better than his original complaint.

      AFFIRMED.




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