1

Bivens v. Six Unknown Named Agents of Federal Bureau of

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

United States Court of Appeals,

Eleventh Circuit.

No. 94-4134

Non-Argument Calendar.

Jose ABELLA, Plaintiff-Appellant,

v.

Frank RUBINO, Dale Whitice, Stephen Golembe, Glen Koch, Hector

Flores, in their individual capacities, Rene Palomino, Jr., Blas

Duran, Fernando Duran, Magaly Duran, Rolando Alvarez, Harold

Garcia, Sisinio Torres, Thomas Scott, James L. King, Judge, Allan

Kaiser, David Robinson, US Customs Agent, John Doe, US Customs

Agent, Mona Jerkings, DEA Agent, Louis Julianelli, US Marshal, US

Marshal, John Does 1-5, Secretary Doe, Law Clerk Doe, Elaine Somma,

Court Reporter, Anton B. Schwartz, Court Reporter, Barbara Medina,

Court Reporter—jointly and severally, in their individual,

professional and official capacities, Defendants-Appellees.

Sept. 12, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 92-1069-CIV), Stanley Marcus, Judge.

Before ANDERSON, EDMONDSON and COX, Circuit Judges.

PER CURIAM:

Abella, a federal prisoner convicted of various narcotic

offenses, filed this pro se Bivens1

 action. His amended complaint

named numerous defendants, including two federal district judges,

an assistant U.S. Attorney, U.S. Customs and DEA officials, U.S.

Marshals, three federal court reporters, a judicial law clerk, a

secretary, and several of Abella's co-defendants and their

respective attorneys. Abella claimed that the defendants knowingly

and willfully conspired to convict him falsely by fabricating

testimony and other evidence against him, in violation of his
Fifth, Sixth and Eighth Amendment rights. Abella sought

declaratory and injunctive relief, and compensatory and punitive

damages. The district court dismissed the complaint, noting that

Abella's claims collaterally attacked the validity of his

underlying criminal convictions and therefore should be dismissed

because Abella had not first exhausted federal habeas remedies

under 28 U.S.C. § 2255. Dees v. Murphy, 794 F.2d 1543, 1545 (11th

Cir.1986).

On appeal, Abella asserts that the dismissal was unduly harsh

because the statute of limitations may run on his Bivens claims

before he is able to exhaust his federal habeas remedies. Abella

argues that the proper disposition would have been to stay the

proceedings, and toll the statute of limitations on his Bivens

claims, pending resolution of his criminal appeal and 28 U.S.C. §

2255 claims. At the time the district court dismissed Abella's

claims, Abella may well have been correct that a stay was the

appropriate disposition of some of his claims under the current

Eleventh Circuit law. Cf. Prather v. Norman, 901 F.2d 915, 919

(11th Cir.1990) (Where monetary damages sought in 42 U.S.C. § 1983

challenge to validity of claimant's state conviction or sentence,

court should stay action pending exhaustion of state remedies if it

appears dismissal will result in expiration of the statute of

limitations.). However, since the district court dismissed this

action, the law has changed, Heck v. Humphrey, --- U.S. ----, 114

S.Ct. 2364, 129 L.Ed.2d 383 (1994), and we are obliged to apply the

new law retroactively to Abella's claims. Harper v. Virginia Dep't

of Taxation, --- U.S. ----, ----, 113 S.Ct. 2510, 2517, 125 L.Ed.2d
 2

On the other hand, "if the district court determines that

the plaintiff's action, even if successful, will not demonstrate

the invalidity of any outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the

absence of some other bar to the suit." Id. at ---- - ----, 114

S.Ct. at 2372-73. 

74 (1993).

I. ABELLA'S BIVENS DAMAGES CLAIMS

 In Heck, the Supreme Court held that:

[I]n 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.

--- U.S. at ----, 114 S.Ct. at 2372. Thus, a 42 U.S.C. § 1983

damages action which would demonstrate the invalidity of a

conviction or sentence does not accrue until the conviction or

sentence has been invalidated. Id. at ----, 114 S.Ct. at 2374.

Such an action, if brought prior to invalidation of the conviction

or sentence challenged, must therefore be dismissed as premature.

Id. at ----, 114 S.Ct. at 2372.2

 Although Heck was a § 1983 case, suits under § 1983 and

Bivens are very similar. A § 1983 suit challenges the

constitutionality of the actions of state officials; a Bivens suit

challenges the constitutionality of the actions of federal

officials. "The effect of Bivens was, in essence, to create a

remedy against federal officers, acting under color of federal law,

that was analogous to the section 1983 action against state

officials." Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.1980),
cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981).

Thus, courts generally apply § 1983 law to Bivens cases. E.g.,

Butz v. Economou, 438 U.S. 478, 500, 98 S.Ct. 2894, 2907, 57

L.Ed.2d 895 (1978) (A federal official sued under Bivens has the

same immunity as a similar state official sued for identical

violation under § 1983.); Dean, 621 F.2d at 1336 (As in § 1983

cases, liability in Bivens actions cannot be based upon theory of

respondeat superior.). In fact, the specific pre- Heck rule

requiring exhaustion of habeas remedies in Bivens cases, applied by

the district court to dismiss the instant case, was borrowed from

§ 1983 caselaw. See Dees, 794 F.2d at 1544 (borrowing exhaustion

requirement from Richardson v. Fleming, 651 F.2d 366 (5th

Cir.1981), a § 1983 case).

 There are, of course, federalism and comity concerns present

when a federal court entertains a § 1983 challenge to the actions

of state officials that do not exist in a similar Bivens challenge.

However, the Heck rule is not based upon the unique comity concerns

that a § 1983 claim presents. Rather, the Court's purpose was to

limit the opportunities for collateral attack on state court

convictions because such collateral attacks undermine the finality

of criminal proceedings and may create conflicting resolutions of

issues. --- U.S. at ----, 114 S.Ct. at 2371. The same rationale

applies with equal force to Bivens challenges; collateral attacks

on federal criminal convictions pose the same threat to the

finality of federal criminal trials and have the same potential for

creating inconsistent results as collateral attacks on state court

proceedings. Thus, we hold that the Heck rule applies to Bivens
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Because we dismiss Abella's claims on ripeness grounds,

Abella may choose to bring his Bivens claims again if he

eventually satisfies the precondition to a valid claim under

Heck; i.e., when and if his narcotics convictions are

invalidated. Thus, defendants, including those who may also be

protected by absolute immunity, may potentially be sued again on

the same claims. Whether some of these defendants are entitled

to absolute immunity might be a threshold issue which we should

decide before dismissal on ripeness grounds under Heck. See Boyd

v. Biggers, 31 F.3d 279, 284 (5th Cir.1994) (Absolute immunity

issues must be decided when dismissing on ripeness grounds under

Heck to protect absolutely immune defendant from future suit on

particular facts alleged.). However, on appeal, defendants rely

solely on Heck and do not make an absolute immunity argument. 

Therefore, we do not decide this issue. 

damages claims. Accord Stephenson v. Reno, 28 F.3d 26, 27 (5th

Cir.1994).

 Abella's damages claims rest on the contention that the

defendants unconstitutionally conspired to convict him of crimes he

did not commit. Judgment in favor of Abella on these claims "would

necessarily imply the invalidity of his conviction." Heck, ---

U.S. at ----, 114 S.Ct. at 2372. Because Abella's convictions have

not been invalidated, his Bivens damages claims are not ripe.

Therefore, the district court did not err in dismissing Abella's

claims. We affirm the dismissal of Abella's claims with prejudice;

Abella may bring his Bivens damages claims in the future should he

meet the requirements of Heck.3

II. ABELLA'S OTHER BIVENS CLAIMS

 With respect to Abella's other claims, Heck reaffirmed that,

under Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d

439 (1973), "habeas corpus is the exclusive remedy for a state

prisoner who challenges the fact or duration of his confinement and

seeks immediate or speedier release." --- U.S. at ----, 114 S.Ct.

at 2364. Thus, declaratory or injunctive relief claims which are
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Some of our cases appear to treat Preiser as a rule of

exhaustion rather than cognizability. See, e.g., Richardson v.

Fleming, 651 F.2d 366, 373 (5th Cir.1981) (Following Preiser, our

cases "have consistently held that any § 1983 action which draws

into question the validity of the fact or length of confinement

must be preceded by exhausting state remedies."); but see

Fulford v. Klein, 529 F.2d 377, 381-82 (5th Cir.1976)

(specifically reserving question of whether plaintiff would have

§ 1983 cause of action after exhaustion), adhered to en banc, 550

F.2d 342 (1977). These cases imply that exhaustion is the only

barrier to a § 1983 (or Bivens ) claim which challenges the fact

or duration of the claimant's confinement, and that such a claim

would be cognizable after the claimant had exhausted habeas

remedies. See, e.g., Richardson, 651 F.2d at 375 ("Once

Richardson has exhausted his state and federal habeas corpus

remedies, he may then proceed under § 1983...."). Heck clarifies

that Preiser is a rule of cognizability, not exhaustion. ---

U.S. at ----, 114 S.Ct. at 2369 ("Preiser did not create an

exception to the "no exhaustion' rule of § 1983; it merely held

that certain claims by state prisoners are not cognizable under

that provision, and must be brought in habeas corpus

proceedings."). Therefore, injunctive and declaratory relief

claims which challenge the fact or duration of confinement are

simply never cognizable in § 1983 or Bivens actions. 

in the nature of habeas corpus claims—i.e., claims which challenge

the validity of the claimant's conviction or sentence and seek

release—are simply not cognizable under § 1983. 4

 Id. This rule

applies equally to Bivens actions. See Dees v. Murphy, 794 F.2d at

1545 (citing Preiser as support for dismissal of Bivens claim

challenging validity of plaintiff's conviction). Resting on the

same premise as his damages claims, that Abella was the victim of

an unconstitutional conspiracy to falsely convict him, Abella's

declaratory and injunctive relief claims challenge the validity of

his conviction. Because these claims are not cognizable Bivens

claims, the district court did not err in dismissing Abella's

declaratory and injunctive relief claims.

III. STAY OR DISMISS

As Abella argues, we have said that stay rather than dismissal
is the appropriate disposition of some § 1983 claims. Prather, 901

F.2d at 918-19. Although the petitioner in Prather presented

claims for both monetary damages and for injunctive and declaratory

relief, we suggested that stay was appropriate because of our

concern that the statute of limitations would run on Prather's

damages claims pending exhaustion of Prather's state remedies. Id.

at 918-20. This is no longer a concern because, as Heck teaches,

such damages claims do not accrue until the plaintiff's conviction

or sentence has been invalidated; the statute of limitations will

not run on § 1983 or Bivens damages claims while the plaintiff

exhausts state or federal remedies. Thus, Abella's argument that

the district court should have stayed his damages claims to prevent

the tolling of the statute of limitations on those claims is no

longer viable under Heck.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court's

order dismissing Abella's Bivens claims with prejudice.

AFFIRMED.