                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT           FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 10-12896                DECEMBER 14, 2010
                           Non-Argument Calendar                JOHN LEY
                         ________________________                CLERK
                      D.C. Docket No. 1:10-cv-21575-JAL

STEVEN LEONARD,

                                                                Plaintiff-Appellant,


                                     versus


FEDERAL BUREAU OF INVESTIGATION (FBI),
U.S. DEPARTMENT OF JUSTICE,
STATE OF FLORIDA
KATHERINE FERNANDEZ-RUNDELL,
in her official capacity as Miami Dade County State Attorney,

                                                           Defendants-Appellees.
                          ________________________

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

                              (December 14, 2010)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:
      Proceeding pro se, Appellant Steven Leonard appeals the district court’s

dismissal of his complaint under 42 U.S.C. § 1983 against the Federal Bureau of

Investigation (“FBI”), the U.S. Department of Justice (“DOJ”), the State of

Florida, and the state attorney for Miami-Dade County, Florida. Construing his

brief and his complaint liberally, Leonard argues that the defendants maliciously

prosecuted him for exercising his First Amendment right of access to public

records, his right to request information under the Freedom of Information Act

(“FOIA”), and his right under 18 U.S.C. § 245 to freedom from intimidation for

exercising his federally protected rights. Additionally, Leonard argues that the

district court failed to construe the complaint liberally and that the dismissal of the

complaint deprived Leonard of his First Amendment right to petition the

government to redress his grievance.

      We review de novo the district court’s order of dismissal under 28 U.S.C. §

1915(e)(2)(B)(ii) of an in forma pauperis complaint, and we accept as true the

complaint’s well-pleaded factual allegations. Mitchell v. Farcass, 112 F.3d 1483,

1489-90 (11th Cir. 1997). We may affirm on any ground supported in the record

even if that ground was not relied upon or considered by the district court.

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Finally,

“[p]ro se pleadings are held to a less stringent standard than pleadings drafted by

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attorneys and will, therefore, be liberally construed.” Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      The district court must dismiss an in forma pauperis complaint that “fails to

state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

Dismissal under § 1915(e)(2)(B)(ii) is governed by the same standard as a

dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Mitchell,

112 F.3d at 1490. Dismissal for failure to state a claim is appropriate if the facts

as pleaded fail to state a claim for relief that is “plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (Rule

12(b)(6) dismissal). The “plaintiff’s obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007)

(alteration and citation omitted).

      Section 1983 requires the plaintiff to show that he “was deprived of a

federal right by a person acting under color of state law.” Griffin v. City of

Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001); see 42 U.S.C. § 1983. “Section

1983 creates no substantive rights; it merely provides a remedy for deprivations of

federal statutory and constitutional rights.” Almand v. DeKalb County, Ga., 103

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F.3d 1510, 1512 (11th Cir. 1997). Although Section 1983 applies only to state

officials, Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29

L. Ed. 2d 619 (1971), provides a parallel remedy for the deprivation of rights by a

federal official. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). We

generally apply the same law to both Bivens and Section 1983 cases. Id. Liberally

construed, the complaint alleges a Bivens claim against the federal defendants and

a Section 1983 claim against the Florida defendants. The complaint also alleges

that the defendants were acting under color of state law; thus, the sole issue is

whether the defendants deprived Leonard of a federally protected right.

      Despite the existence of the § 1983 remedy, “habeas corpus [rather than

§ 1983] is the exclusive remedy for a state prisoner who challenges the fact or

duration of his confinement and seeks immediate or speedier release.” Bradley v.

Pryor, 305 F.3d 1287, 1289 (11th Cir. 2002) (citing Preiser v. Rodriguez, 411

U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973)). This rule applies to an action

for damages under § 1983 if a judgment in the plaintiff’s favor “would necessarily

imply the invalidity of his conviction or sentence.” Heck v. Humphrey, 512 U.S.

477, 487, 114 S. Ct. 2364, 2372, 129 L. Ed. 2d 383 (1994). In either

circumstance, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has been “reversed on direct appeal,

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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.” Id. However, this rule necessarily applies only if “there

exists ‘a conviction or sentence that has not been . . . invalidated,’ that is to say, an

‘outstanding criminal judgment.’” Wallace v. Kato, 549 U.S. 384, 393, 127 S. Ct.

1091, 1097-98, 166 L. Ed. 2d 973 (2007). Stated differently, Heck does not bar

“an action which would impugn an anticipated future conviction.” Id.

      Although Leonard asserts an array of constitutional and statutory violations

by the defendants, the substance of Leonard's complaint alleges that the

defendants violated the Fourth Amendment by maliciously prosecuting Leonard

for attempting to exercise his federal rights. To prove malicious prosecution under

§ 1983, Leonard must allege “(1) the elements of the common law tort of

malicious prosecution, and (2) a violation of [his] Fourth Amendment right to be

free from unreasonable seizures.” Kingsland v. City of Miami, 382 F.3d 1220,

1234 (11th Cir. 2004). To establish the common law tort of malicious prosecution

under Florida law, Leonard must allege that (1) a judicial proceeding was

commenced or continued against him; (2) the defendants were the legal cause of

the original proceeding; (3) the termination of the original proceeding constituted

a bona fide termination of that proceeding in Leonard’s favor; (4) no probable

                                            5
cause existed for the original proceeding; (5) the defendants acted with malice;

and (6) Leonard suffered damage as a result of the proceeding. Id.

      Because Leonard’s state-court criminal prosecution is ongoing, we conclude

from the record that the district court erred by dismissing the complaint based on

Heck, which bars a § 1983 claim based on an extant conviction but has no

application to an anticipated future conviction. See Wallace, 549 U.S. at 393, 127

S. Ct. at 1098. Nevertheless, we conclude that the district court properly

dismissed the complaint in this case because Leonard’s malicious prosecution

claim ripens only if the state-court criminal proceeding is terminated in his favor.

See Heck, 512 U.S. at 484, 114 S. Ct. at 2371 (“One element that must be alleged

and proved in a malicious prosecution action is termination of the prior criminal

proceeding in favor of the accused.”). In other words, because Leonard failed to

allege the termination in his favor of the state-court criminal prosecution, Leonard

failed to state a claim for malicious prosecution. Accordingly, we affirm the

district court’s dismissal of Leonard’s complaint.

      AFFIRMED.




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