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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10799
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 4:17-cv-00186-RH-GRJ



WILLIAM JAMES SISKOS,

                                                           Plaintiff-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                          Defendant-Appellee.

                      ________________________

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

                              (June 4, 2020)

Before WILLIAM PRYOR, Chief Judge, LAGOA, and ANDERSON, Circuit
Judges.

PER CURIAM:
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      William Siskos, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his third amended civil rights complaint for failure to state a

viable claim for relief after the Florida Department of Corrections (“FDOC”)

moved to dismiss. On appeal, Siskos argues that the district court erred in its

conclusions that (1) he failed to state viable claims under the Americans with

Disabilities Act 1 (“ADA”) and Rehabilitation Act of 1973 2 (“RA”) based on

FDOC’s filing of a response in opposition to Siskos’s then-pending petition for

habeas corpus under 28 U.S.C. § 2254, and its imprisonment of him despite his

mental health issues; (2) he failed to state a viable claim under the Eighth

Amendment based on FDOC’s imprisonment of him; (3) his claims regarding his

competency in his underlying criminal proceedings and his due process challenge

to his conviction were barred under Heck v. Humphrey, 512 U.S. 477 (1994);

(4) the State of Florida (“State”) was not properly joined as a defendant in his third

amended complaint; (5) he failed to show a causal link for his claim that FDOC

retaliated against him for exercising his First Amendment right to file a § 2254

petition by placing him in disciplinary lockdown; and (6) his claims for money

damages against FDOC, the State, and the Florida Attorney General (“Florida

AG”) were barred under the Eleventh Amendment.


      1
          42 U.S.C. § 12101 et seq.
      2
          29 U.S.C. § 794.
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      A court “shall dismiss” a case filed in forma pauperis if the court determines

that the complaint is frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief against a defendant who is immune from

such relief. 28 U.S.C. § 1915(e)(2)(B); see Fed. R. Civ. P. 12(b)(6) (providing for

dismissal if a complaint fails to state a claim upon which relief can be granted). A

district court’s dismissal of a complaint for failure to state a claim is reviewed de

novo, viewing the allegations in the complaint as true. Mitchell v. Farcass, 112

F.3d 1483, 1490 (11th Cir. 1997).

      To withstand a motion to dismiss under Rule 12(b)(6), a complaint must

include “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A plaintiff’s allegations must amount

to “more than labels and conclusions, and a formulaic recitation of the elements of

a cause of action will not do.” Twombly, 550 U.S. at 555. Additionally, an action

is frivolous if it is “without arguable merit either in law or fact.” Napier v.

Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quotation marks omitted).

      Moreover, while pro se pleadings must be liberally construed, issues not

briefed on appeal are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874


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(11th Cir. 2008). And arguments raised for the first time on appeal are deemed

waived. Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011).

      Section 1983 of Title 42 of the U.S. Code creates no substantive rights, but

merely provides a remedy for deprivations of federal and constitutional rights.

Almand v. DeKalb Cty., Ga., 103 F.3d 1510, 1512 (11th Cir. 1997). To prevail on

a civil rights action under § 1983, a plaintiff must establish that he was deprived of

a federal right by a person acting under color of state law. West v. Atkins, 487 U.S.

42, 48 (1988).

      The Eleventh Amendment to the U.S. Constitution provides: “[t]he Judicial

power of the United States shall not be construed to extend to any suit in law or

equity, commenced or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. This amendment has been interpreted to bar suits against a state by

citizens of that state, or citizens of another state, absent express consent by the

state. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).

Section 1983 does not override the states’ Eleventh Amendment immunity;

instead, a federal court’s remedial power in such actions brought against a state is

limited to prospective injunctive relief. Quern v. Jordan, 440 U.S. 332, 338, 342

(1979).




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      A § 1983 action cannot be used to collaterally attack a conviction or

sentence unless the underlying 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, 512 U.S. at 486-87. Although Heck

involved a prisoner seeking money damages, the Supreme Court later clarified that

a prisoner “cannot use § 1983 to obtain relief where success would necessarily

demonstrate the invalidity of confinement or its duration,” even if the prisoner is

seeking injunctive relief. Wilkinson v. Dotson, 544 U.S. 74, 74-75, 81 (2005)

(emphasis omitted).

      Additionally, “when 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 speedier release from that imprisonment, his sole

federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475,

500 (1973). Conversely, “a [§] 1983 action is a proper remedy for a state prisoner

who is making a constitutional challenge to the conditions of his prison life, but not

to the fact or length of his custody.” Id. at 499.

      Under Title II of the ADA, public entities are prohibited from discriminating

against individuals with disabilities or denying them services because of their

disabilities. See 42 U.S.C. § 12132. To state a claim of discrimination under Title


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II, a claimant must prove (1) that he is a qualified individual with a disability and

(2) that he was excluded from participation in or denied the benefits of the

services, programs, or activities of a public entity, or was otherwise discriminated

against by the public entity (3) due to the claimant’s disability. Bircoll v.

Miami-Dade Cty., 480 F.3d 1072, 1083 (11th Cir. 2007).

      Public entities may be liable for a failure to make a reasonable modification.

See id. at 1085-86. Public entities must make reasonable modifications to their

policies, practices, or procedures when necessary to avoid discrimination on the

basis of a disability unless making the modifications would “fundamentally alter

the nature” of the services, programs, or activities. 28 C.F.R. § 35.130(b)(7). State

prisons are public entities for purposes of the ADA. Pa. Dep’t of Corr. v. Yeskey,

524 U.S. 206, 210 (1998). Whether a modification is reasonable is a fact specific

inquiry that depends on the particular circumstances of the case. Bircoll, 480 F.3d

at 1085-86. Public entities can be liable for damages under Title II of the ADA if

the discriminatory conduct also independently violates the Fourteenth Amendment.

United States v. Georgia, 546 U.S. 151, 157-59 (2006). The standard for

determining liability under the RA is the same as the standard under the ADA.

Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).

      To state a First Amendment retaliation claim, a plaintiff must allege facts

supporting a plausible finding that (1) his speech or act was constitutionally


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protected; (2) the defendant’s retaliatory conduct adversely affected the protected

speech; and (3) there was a causal connection between the retaliatory actions and

the adverse effect on speech. Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir.

2008). As to the last element, the plaintiff’s allegations must support a plausible

finding that the defendant was “subjectively motivated to discipline because [the

plaintiff] complained of some of the conditions of his confinement.” Id. at 1278.

      Under the Eighth Amendment, state actors are prohibited from inflicting

cruel and unusual punishment. Bass v. Perrin, 170 F.3d 1312, 1316 (11th Cir.

1999). Cruel and unusual punishment includes the “unnecessary and wanton

infliction of pain,” such as punishments that are “totally without penological

justification.” Id. (quotation marks omitted). Courts make this determination by

considering whether prison officials acted with deliberate indifference to the

prisoner’s health or safety. Hope v. Pelzer, 536 U.S. 730, 737-38 (2002).

      To state a deliberate indifference claim in violation of the Eighth

Amendment, a prisoner must allege facts supporting a plausible finding that (1) he

had an objectively serious medical need that posed a substantial risk of serious

harm if left unattended; (2) the defendant was deliberately indifferent to that need;

and (3) the indifference caused the prisoner’s injury. Gilmore v. Hodges, 738 F.3d

266, 273-74 (11th Cir. 2013). An official is deliberately indifferent if he or she




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(1) knew of a risk of serious harm and (2) disregarded the risk (3) through conduct

that was more than grossly negligent. Id. at 274.

      As an initial matter, Siskos has waived any argument that the State was not

properly joined as a defendant by failing to raise that argument before the district

court. See Ledford, 657 F.3d at 1258. We address Siskos’s challenges based on

the factual basis of each claim.

FDOC’s § 2254 Response

      First, as to Siskos’s claims stemming from FDOC’s response to his § 2254

petition, the district court did not err by concluding that he failed to state a viable

claim under the ADA. Even assuming that Siskos sufficiently alleged that he is a

qualified individual with a disability, he failed to allege facts supporting a finding

that FDOC excluded him from participation in prison services, denied him the

benefits of prison services, or otherwise discriminated against him based on his

mental illness. See Bircoll, 480 F.3d at 1083. Moreover, Siskos’s contention that

FDOC’s advocacy—namely, requesting that his § 2254 petition be denied—

amounts to discrimination is frivolous. See Napier, 314 F.3d at 531.

      Additionally, Siskos’s First Amendment retaliation claim is likewise without

merit. While Siskos’s filing of a § 2254 petition was constitutionally protected,

Siskos did not plausibly allege that FDOC’s filing of a response adversely affected

his § 2254 proceedings or hindered his ability to seek relief under § 2254. See


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Smith, 532 F.3d at 1276. Moreover, Siskos failed to sufficiently allege a causal

connection between the § 2254 action and any adverse effect he suffered in prison,

such as being placed in disciplinary lockdown, because he did not show that FDOC

was motivated to discipline him for challenging some of the conditions of his

confinement in his § 2254 petition. See id. Specifically, as the district court

correctly noted, Siskos did not allege that the individual FDOC officers who placed

him on disciplinary lockdown were aware of his § 2254 petition or that they were

motivated to discipline him as a result.

Challenges Related to Siskos’s Imprisonment

      Second, the district court did not err by concluding that Siskos failed to

sufficiently allege a deliberate indifference claim under the Eighth Amendment. It

is not cruel and unusual punishment merely to be imprisoned for a crime after

conviction. In other words, Siskos did not allege—and cannot plausibly allege—

that his imprisonment was “totally without penological justification.” See Bass,

170 F.3d at 1316. And as the district court noted, FDOC had no authority to

release Siskos into the custody of a residential treatment facility.

      Siskos’s ADA and RA claims based on FDOC’s alleged failure to release

him are also without merit because Siskos cannot show that releasing him into a

residential treatment facility is a reasonable accommodation for his mental illness.

Requiring FDOC to release Siskos into the custody of a residential treatment


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facility, an action for which it has no authorization or protocols to follow, would

“fundamentally alter the nature” of FDOC’s imprisonment services. See 28 C.F.R.

§ 35.130(b)(7).

Challenges Related to Siskos’s Convictions

      Third, Siskos’s remaining challenges, including his claims that he was

denied a competency evaluation and that his resulting conviction violated his due

process rights, are barred by Heck, as the district court properly concluded.

Contrary to Siskos’s contentions, there is no “immunity” from the Heck bar

available to him based on his alleged incompetence. While Siskos asserts that a

challenge to his lack of a competency evaluation would not necessarily undermine

the validity of his convictions, Siskos alleged in his third amended complaint that

he was not competent during his trial proceedings. Accepting that allegation as

true, as the district court properly did, success on his competency claim in this

action would necessarily implicate the validity of his convictions because, in that

case, his convictions would necessarily rest on constitutionally faulty proceedings.

Thus, because Siskos did not allege that his convictions have been invalidated, his

competency challenges are barred by Heck. See Heck, 512 U.S. at 486-87.

Similarly, a successful due process challenge to Siskos’s criminal proceedings

would necessarily implicate the validity of his convictions and, thus, is also barred

by Heck. See id.


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      To the extent that Siskos’s challenges could be construed as challenges to

the fact of his imprisonment, those challenges are not cognizable in a § 1983

action. See Preiser, 411 U.S. at 500. Instead, if “the relief [Siskos] seeks is a

determination that he is entitled to immediate release . . . his sole federal remedy is

a writ of habeas corpus.” See id.

Eleventh Amendment Immunity

      Finally, although it is unclear who Siskos properly named as defendants, the

Florida AG, the State, and FDOC are all entities of the State of Florida. As such,

they are immune from suit for money damages under the Eleventh Amendment.

See Pennhurst State Sch. & Hosp., 465 U.S. at 100. And while Siskos repeatedly

alleges that he has stated independent violations of the Fourteenth Amendment

such that his challenges under the ADA and RA are not barred, he has not alleged

conduct that “actually violated the Fourteenth Amendment” because, as explained

previously, he failed to state a viable claim under the Eighth Amendment. See

Georgia, 546 U.S. at 157-59 (noting that the Fourteenth Amendment incorporates

the Eighth Amendment against the states).

      For all these reasons, the district court did not err by granting FDOC’s

second motion to dismiss and dismissing Siskos’s third amended complaint for

failure to state a viable claim. Accordingly, we affirm.




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    AFFIRMED.3




3
    Siskos’s motion for oral argument is DENIED.
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