              Case: 17-12423    Date Filed: 03/05/2018   Page: 1 of 4


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 17-12423
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 3:17-cv-00746-CLS



TIMOTHY WEAKLEY,

                                                               Plaintiff-Appellant,

                                      versus

CHRISTOPHER CONNOLLY,
In his Personal and Professional Capacity,
a.k.a. Chris Connolly,

                                                              Defendant-Appellee.

                          ________________________

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

                                 (March 5, 2018)



Before TJOFLAT, NEWSOM, and EDMONDSON, Circuit Judges.
              Case: 17-12423     Date Filed: 03/05/2018    Page: 2 of 4


PER CURIAM:



      Plaintiff Timothy Weakley, a non-prisoner litigant proceeding pro se and in

forma pauperis, appeals the dismissal of his 42 U.S.C. § 1983 civil action. The

district court dismissed sua sponte Plaintiff’s complaint -- pursuant to 28 U.S.C. §

1915(e)(2)(B)(ii) -- for failure to state a claim. No reversible error has been

shown; we affirm.

      We review de novo a district court’s sua sponte dismissal under section

1915(e)(2)(B)(ii). Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir.

2017). We construe liberally pro se pleadings. Id.

      In reviewing a dismissal under section 1915(e)(2)(B)(ii), we apply the same

standard that applies to dismissals under Fed. R. Civ. P. 12(b)(6). Id. To survive

dismissal, a complaint must contain sufficient factual matter to “state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 554,

570 (2007).

      Briefly stated, Plaintiff seeks to attack the validity and enforceability of his

March 2017 state court sentencing order for third-degree theft. Plaintiff -- who

was then represented by a lawyer -- pleaded guilty pursuant to a signed plea

agreement. The state court imposed a 12-month sentence, suspended the sentence

for 24 months, and ordered Plaintiff to pay restitution. Under the terms of plea


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agreement, Plaintiff agreed that restitution would be paid through Plaintiff’s

bankruptcy proceeding.

      Plaintiff’s complaint, liberally construed, alleges that the state court

sentencing order violated federal bankruptcy laws and that enforcement of the

unlawful state court order and of his plea agreement violated his federal

constitutional due process rights. Plaintiff also challenges the validity of his guilty

plea. Plaintiff seeks monetary damages and injunctive relief in the form of

vacating the state court judgment.

      To the extent Plaintiff seeks to challenge his state conviction and sentence,

no such relief is available under section 1983. Plaintiff is currently serving a

suspended sentence and, thus, is considered “in custody” for purposes of 28 U.S.C.

§ 2254. See Birdwell v. Ala., 834 F.2d 920, 921 (11th Cir. 1987) (“an unexpired

suspended sentence, if it carries the possibility of revocation or other adverse

action” satisfies section 2254’s “in custody” requirement). Accordingly, the sole

remedy for Plaintiff to challenge the validity of his state conviction and sentence is

through a section 2254 habeas petition. See Preiser v. Rodriguez, 411 U.S. 475,

500 (1973). Moreover, because Plaintiff challenges directly the validity of the

state court order and his guilty plea -- and seeks to vacate his conviction and

sentence -- Plaintiff’s claim is barred by Heck v. Humphrey, 512 U.S. 477, 481-82

(1994).


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      No relief can be granted on Plaintiff’s claims in a section 1983 proceeding;

the district court thus committed no reversible error in dismissing Plaintiff’s

complaint for failure to state a claim. Moreover, because amendment would have

been futile, the district court was under no obligation to provide Plaintiff notice or

an opportunity to amend before dismissing the complaint. See Surtain v. Hamlin

Terrace Found., 789 F.3d 1239, 1248 (11th Cir. 2015).

      AFFIRMED.




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