           Case: 16-17580   Date Filed: 08/07/2019   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17580
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:16-cv-23973-MGC



JOHNSON CHRISTOPHER JAMERSON,

                                                           Plaintiff-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA, et al.,

                                                        Defendants-Appellees.

                      ________________________

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

                            (August 7, 2019)

Before WILLIAM PRYOR, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
                    Case: 16-17580     Date Filed: 08/07/2019   Page: 2 of 5


         Johnson Jamerson, proceeding pro se, appeals the district court’s dismissal

of his civil complaint for frivolity and failure to state a viable claim under 28

U.S.C. § 1915(e)(2) and for failing to comply with the court’s orders under Fed. R.

Civ. P. 41(b). On appeal, he argues that the district court denied him due process

by failing to address an alleged issue with the jurisdiction of the state trial court

over his criminal proceedings. He contends that his claims are not barred by Heck 1

because Heck did not involve a criminal conviction with an underlying jurisdiction

issue.

         We have held that a district court can dismiss a case sua sponte under

Fed. R. Civ. P. 41(b) if the plaintiff fails to comply with a court order. Betty K

Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005). We

review a district court’s dismissal under Rule 41(b) for abuse of discretion. Id.

         In general, a dismissal without prejudice is not an abuse of discretion. See

Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983).

Dismissal with prejudice is reviewed more strictly than dismissal without prejudice

because dismissal with prejudice is “a sanction of last resort, applicable only in

extreme circumstances.” Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006)

(quotation marks omitted). Even so, a dismissal with prejudice under Rule 41(b)

“upon disregard of an order, especially where the litigant has been forewarned,


         1
             Heck v. Humphrey, 512 U.S. 477 (1994).
                                                 2
               Case: 16-17580     Date Filed: 08/07/2019    Page: 3 of 5


generally is not an abuse of discretion.” Moon v. Newsome, 863 F.2d 835, 837

(11th Cir. 1989).

      Additionally, a court “shall dismiss” a case filed IFP 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) (quotation

marks omitted). Moreover, while pro se pleadings must be liberally construed,

issues not briefed on appeal are deemed abandoned. Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008).

      Section 1983 of Title 42 of the U.S. Code creates no substantive rights, but

merely provides a remedy for deprivations of federal and constitutional rights.

Almand v. DeKalb Cty., Ga., 103 F.3d 1510, 1512 (11th Cir. 1997). To prevail on

a civil rights action under § 1983, a plaintiff must establish that he was deprived of

a federal right by a person acting under color of state law. West v. Atkins, 487 U.S.

42, 48 (1988). A private individual also may be held liable under § 1983 when he

conspires with state actors to violate the plaintiff’s constitutional rights. Rowe v.

City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir. 2002). To establish a


                                           3
               Case: 16-17580     Date Filed: 08/07/2019   Page: 4 of 5


§ 1983 conspiracy, the plaintiff must provide some evidence of an agreement

between the defendants. Id. at 1283-84.

      However, a § 1983 action cannot be used to collaterally attack a conviction

or sentence unless 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. Although Heck

involved a prisoner seeking money damages, the Supreme Court later clarified that

prisoners “cannot use § 1983 to obtain relief where success would necessarily

demonstrate the invalidity of confinement or its duration,” even if the prisoner is

seeking injunctive relief. Wilkinson v. Dotson, 544 U.S. 74, 74-75, 81 (2005).

      Additionally, “when a state prisoner is challenging the very fact or duration

of his physical imprisonment, and the relief he seeks is a determination that he is

entitled to immediate release or a speedier release from that imprisonment, his sole

federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475,

500 (1973). Conversely, “a [§] 1983 action is a proper remedy for a state prisoner

who is making a constitutional challenge to the conditions of his prison life, but not

to the fact or length of his custody.” Id. at 499.

      The district court did not abuse its discretion by dismissing Jamerson’s

complaint for failure to comply because none of its orders was returned


                                           4
              Case: 16-17580    Date Filed: 08/07/2019   Page: 5 of 5


undelivered, one of the orders warned him of the dangers of failing to comply, and

Jamerson continued to prosecute his case. See Betty K. Agencies, Ltd., 432 F.3d at

1337; Moon, 863 F.2d at 837. Additionally, the district court properly concluded

that Jamerson’s claims were barred under Heck because Jamerson was attempting

to challenge the fact of his conviction and has not demonstrated that his conviction

has been overturned. See Heck, 512 U.S. at 486-87; Wilkinson, 544 U.S. at

74-75, 81. Accordingly, we affirm.

      AFFIRMED.




                                         5
