                                                                            [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                             ELEVENTH CIRCUIT
                                            No. 11-11877                        MAY 7, 2012
                                        Non-Argument Calendar                    JOHN LEY
                                      ________________________                    CLERK


                                D.C. Docket No. 1:11-cv-20280-CMA

GUILLERMO SANCHEZ SALAZAR,

                                            llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                                versus

U.S. ATTORNEY GENERAL,
D.E.A.,
F.B.I.,
U.S. COAST GUARD,
U.S. CUSTOMS,
et al.,

llllllllllllllllllllllllllllllllllllllll                                   Defendants-Appellees.

                                     ________________________

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

                                            (May 7, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:
      Guillermo Salazar, proceeding pro se, appeals the district court’s dismissal

of his complaint asserting a claim under Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

On appeal, Salazar argues that the government withheld exculpatory evidence

from him. For the reasons set forth below, we affirm the district court’s dismissal

of Salazar’s complaint.

                                         I.

      In a 42 U.S.C. § 1983 complaint filed against a number of government

agencies, three Assistant United States Attorneys, three Assistant Federal Public

Defenders, and an investigator, Salazar alleged that the government intentionally

and maliciously failed to provide discovery and exculpatory evidence regarding a

confidential informant. Salazar further alleged that the government may have

entrapped him. The entrapment and lack of discovery led to an unconstitutional

sentence. Finally, he asserted that, if he could obtain the withheld evidence, he

would be able to show that he received ineffective assistance of counsel. Salazar

demanded discovery, an investigative report, an investigation of the new evidence,

money damages for the damage and prejudice he suffered, and a jury trial under

the Seventh Amendment.

      Salazar was permitted to proceed in forma pauperis. The magistrate judge

                                         2
reviewed Salazar’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) and

recommended that the complaint be dismissed for failing to state a claim. The

magistrate construed the complaint as a Bivens action and concluded that Salazar

was attempting to collaterally attack his criminal conviction. Claims attacking

“the fact or duration of a criminal defendant’s confinement” were to be brought in

a petition for habeas corpus, not in a civil rights action. When a prisoner brought

a claim attacking his confinement in a civil rights action, the complaint had to be

dismissed unless the conviction was reversed, expunged, or questioned in a writ of

habeas corpus. After de novo review, the district court accepted the report and

recommendation and dismissed the complaint for failure to state a claim upon

which relief could be granted.

                                          II.

      We review “a dismissal for failure to state a claim under [28 U.S.C.]

§ 1915(e)(2)(B)(ii) de novo.” Troville v. Venz, 303 F.3d 1256, 1259 (11th Cir.

2002). When a plaintiff proceeds in forma pauperis, “the court shall dismiss the

case at any time if the court determines that the action or appeal fails to state a

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

this language tracks the language in Federal Rule of Civil Procedure 12(b)(6), we

apply the standards of Rule 12(b)(6) in reviewing § 1915(e)(2)(B)(ii) dismissals.

                                           3
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). In reviewing a

dismissal for failure to state a claim, we construe “the complaint in the light most

favorable to the plaintiff and accept[s] as true all facts which the plaintiff alleges.”

Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005) (reviewing a dismissal under

Rule 12(b)(6)). A complaint should be dismissed only where “the plaintiff can

prove no set of facts in support of his claim which would entitle him to relief.” Id.

(quotation omitted).

      A plaintiff asserts a Bivens claim when he alleges that “federal officers,

acting under color of federal law,” acted unconstitutionally. Abella v. Rubino, 63

F.3d 1063, 1065 (11th Cir. 1995) (quotation omitted). A Bivens action is

analogous to complaints brought against state actors under 42 U.S.C. § 1983, and

courts generally apply § 1983 law in Bivens actions. Id. In a § 1983 suit, the

Supreme Court held

      that, in 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.

Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383



                                           4
(1994). Under this rule, if “a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence,” the complaint is to be

dismissed unless “the conviction or sentence has already been invalidated.” Id. at

487, 114 S.Ct. at 2372. On the other hand, if judgment in favor of the plaintiff

“will not demonstrate the invalidity of any outstanding criminal judgment,” the

action may proceed. Id. Heck applies to Bivens claims. Abella, 63 F.3d at 1065.

      The Supreme Court has noted that a Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963), claim cannot be brought in a § 1983 suit.

Skinner v. Switzer, 562 U.S. ___, 131 S.Ct. 1289, 1300, 179 L.Ed.2d 233 (2011).

To prove a Brady claim, a petitioner must show: (1) that the state suppressed

evidence (2) that was favorable to the petitioner and (3) that the petitioner was

prejudiced. Skinner, 562 U.S. at ___, 131 S.Ct. at 1300. Such evidence

necessarily undermines the petitioner’s conviction because the “evidence is, by

definition, always favorable to the defendant and material to his guilt or

punishment.” Id. Thus, Brady claims are to be brought in a petition for habeas

corpus, not in a § 1983 suit. Id.

      In contrast, a prisoner may seek physical evidence to test the evidence for

DNA through a § 1983 suit because success on the plaintiff’s part would not show

that his conviction or sentence was invalid. Skinner, 562 U.S. at ___, 131 S.Ct. at

                                          5
1293; Bradley v. Pryor, 305 F.3d 1287, 1290 (11th Cir. 2002). Rather, judgment

in the plaintiff’s favor would merely give him access to the evidence. Skinner,

562 U.S. at ___, 131 S.Ct. at 1293; Bradley, 305 F.3d at 1290. The evidence

obtained “may prove exculpatory, inculpatory, or inconclusive,” but simply

obtaining access to that evidence would “[i]n no event . . . necessarily impl[y] the

unlawfulness of the [s]tate’s custody.” Skinner, 562 U.S. at ___, 131 S.Ct. at 1293

(quotation omitted).

       Here, the district court properly dismissed Salazar’s complaint.1 Success on

Salazar’s part would necessarily imply that his conviction was invalid. See Heck,

512 at 487, 114 S.Ct. at 2372. In his complaint, Salazar asserted the essential

elements of a Brady claim: he asserted that the prosecution intentionally and

maliciously withheld exculpatory evidence from him, which prejudiced him. See

Skinner, 562 U.S. at ___, 131 S.Ct. at 1300. This exculpatory evidence would

necessarily undermine his conviction. See Skinner, 562 U.S. at ___, 131 S.Ct. at

1300. Accordingly, Salazar failed to state a claim cognizable in a Bivens action.

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

Salazar’s complaint.



       1
        The district court was also correct that Salazar has actually asserted a Bivens claim, not a
§ 1983 claim, because Salazar sued federal, not state, officials. See Abella, 63 F.3d at 1065.

                                                 6
AFFIRMED.




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