           Case: 18-13549   Date Filed: 01/30/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13549
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:17-cv-03271-AT



ROBERT JOHN WHITE, JR.,

                                                           Plaintiff-Appellant,

                                 versus

FULTON COUNTY, GEORGIA,
STATE OF GEORGIA,

                                                        Defendants-Appellees.

                      ________________________

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

                            (January 30, 2019)

Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Robert John White, Jr., filed a civil complaint against the State of Georgia

and Fulton County, Georgia, arguing that the judges of the Fulton County Superior

Court Family Division and the justices of the Supreme Court of Georgia violated

his constitutional rights by allowing the Family Division to operate and issue a

judgment against him, without jurisdiction to do so. White appeals the district

court’s sua sponte dismissal of his complaint for failure to state a claim. He argues

that the district court erred in concluding (1) that the Eleventh Amendment barred

his claims against the State of Georgia and (2) that Heck v. Humphrey, 512 U.S.

477, 485–87 (1994), barred his claims against Fulton County, Georgia. After

review, we affirm the judgment of the district court.

      A court shall dismiss a case filed in forma pauperis if the court determines

that the complaint “is frivolous or malicious” or “fails to state a claim upon which

relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). 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). 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). Further, we

may affirm a district court’s judgment on any ground supported by the record. See

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).




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      Section 1983 gives private citizens a cause of action against government

actors for violations of their constitutional rights. 42 U.S.C. § 1983. To state a

claim for relief under § 1983, a plaintiff’s complaint must allege conduct that: (1)

deprived the plaintiff of a right secured by the Constitution or laws of the United

States, and (2) was committed by a person acting under color of state law. See,

e.g., Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1276–

77 (11th Cir. 2003). A § 1983 action cannot, however, be used as a vehicle to

collaterally attack a conviction or sentence unless the plaintiff can prove that 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.

      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. Courts have interpreted this language to bar suits against a state by

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

state or valid congressional abrogation of immunity. Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not override states’


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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, 342 (1979).

      Moreover, the Georgia Constitution grants sovereign immunity to the state

and its agencies, with consent to suit given in limited instances under the Georgia

Torts Claims Act. GA. CONST. art. 1, § 2, ¶ IX. Sovereign immunity under

Georgia law extends to counties and municipalities. See GA. CONST. art. 9, § 2,

¶ IX; Coleman v. Glynn Cty., 344 Ga. App. 545, 549 (2018). Though sovereign

immunity has been waived by statute in limited circumstances, it is not waived for

actions brought in federal court. O.C.G.A. § 50-21-23(b).

      The district court properly dismissed White’s claims against the State of

Georgia because the Eleventh Amendment barred his action, and Georgia has

expressly reserved its sovereign immunity in actions brought in federal court. See

U.S. CONST. amend. XI; see also O.C.G.A. § 50-21-23(b). White cites Ex parte

Young, 209 U.S. 123, 155–56 (1908), for the proposition that a suit against a state

official for constitutional violations is not a suit against the state. Ex parte Young

does not apply here, however, because White has named the State of Georgia as a

defendant, rather than a state official. Moreover, the district court’s remedial

power in a § 1983 action brought against the State of Georgia is limited to

prospective injunctive relief, and White sought money damages. See Quern, 440


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U.S. at 337–38. The district court properly dismissed White’s claims against the

State of Georgia.

      We now turn to the district court’s conclusion that Heck barred White’s

claims against Fulton County. Heck bars collateral attacks on convictions or

sentences in § 1983 actions. See Heck, 512 U.S. at 486–87. But White was never

convicted or sentenced by the Family Division; he was ordered incarcerated for

civil contempt. Although White is attempting to collaterally attack the Family

Division’s judgements against him, without a conviction or sentence, Heck does

not bar his suit against Fulton County. See id. Thus, the district court was

incorrect in holding that Heck barred White’s claims.

      Nonetheless, the suit against Fulton County is barred by the sovereign

immunity granted by the Georgia Constitution, and this Court may affirm the

district court’s judgment on any ground. See Lucas, 257 F.3d at 1256. The

Georgia Constitution provides for a waiver of sovereign immunity by statute under

the Georgia Tort Claims Act, but the waiver explicitly does not extend to suits

brought in federal court, such as the instant case. See GA. CONST. art. 9, § 2, ¶ IX;

O.C.G.A. § 50-21-23(b). Although the district court improperly concluded that

Heck applied to White’s claims, the court nonetheless properly dismissed White’s

claims against Fulton County because the county had sovereign immunity under




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the Georgia Constitution for actions brought in federal court. Accordingly, we

affirm.

      AFFIRMED.




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