United States Court of Appeals,
Fifth Circuit.
No. 94-10800.
Alton R. MACKEY, Plaintiff-Appellant,
v.
Rick DICKSON, et al., Defendants-Appellees.
March 16, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before KING, GARWOOD and BENAVIDES, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Alton R. Mackey (Mackey) appeals the
district court's dismissal of his section 1983 suit as frivolous
pursuant to 28 U.S.C. § 1915(d). We vacate and remand.
Facts and Proceedings Below
Mackey, a Terry County, Texas Jail inmate, filed this suit on
June 22, 1994, pursuant to 42 U.S.C. § 1983 against four law
enforcement officers and a prosecutor asserting, inter alia, an
unreasonable search and seizure claim.1 The district court granted
Mackey leave to proceed in forma pauperis. Mackey alleges that he
was arrested on January 15, 1993, harassed by officers, and then
released. Mackey also alleges that he was again arrested on March
3, 1994, and subsequently indicted on March 21, 1994, for delivery
1
Mackey's complaint named Permian Basin Drug Task Force
Agent Rick Dickson, Brownfield Police Chief Bill Avery, Assistant
Chief Roy Rice, County Sheriff Jerry Johnson, and prosecutor G.
Dwayne Pruitt as defendants. For the first time on appeal,
Mackey names three additional Permian Basin Drug Task Force
Agents as defendants: Shirley Lee, Steve Fuertez, Tony Bowdoin.
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of cocaine in June, July, and August 1993.2 Where the form
complaint that Mackey used asks the plaintiff to state the relief
sought, Mackey wrote that he would "state relief latter [sic]."3
The district court sua sponte and without prior notice
determined that Mackey was attacking the constitutionality of his
arrest. Because the district court held that "an attack on the
constitutionality of an arrest is an attack on the fact of
confinement," it determined that Mackey's complaint was a habeas
corpus action and dismissed it for failure to exhaust state
remedies. In addition, the district court held that, to the extent
Mackey sought tort damages in his section 1983 action, his claim
was not actionable unless and until the validity of his conviction
is called into question and therefore dismissed his claim. On July
26, 1994, the district court entered a judgment dismissing Mackey's
complaint without prejudice. No Spears hearing was held; nothing
was filed on behalf of any of the defendants. Mackey filed a
timely notice of appeal.
Discussion
Dismissal of an in forma pauperis petition under 28 U.S.C. §
1915(d) is appropriate where the district court is satisfied that
the action is frivolous. An action is frivolous "where it lacks an
arguable basis either in law or in fact." Neitzke v. Williams, 490
2
This March 21, 1994, indictment is the most recent event
described by Mackey.
3
The district court did not dismiss on this basis (as it
perhaps could have had Mackey persisted in a refusal to state
what relief he desired). In his brief on appeal, Mackey states
for the first time that he is seeking monetary damages.
2
U.S. 319, 323-25, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989);
see also Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir.1993). We
review a district court's section 1915(d) dismissal for abuse of
discretion. Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct.
1728, 1734, 118 L.Ed.2d 340 (1992).
If success for the plaintiff in his section 1983 suit would
challenge the constitutionality of his conviction and the plaintiff
cannot show that the conviction has been reversed, expunged,
invalidated, or called into question by the issuance of a habeas
writ, the district court may properly dismiss the section 1983
claim under section 1915(d). Boyd v. Biggers, 31 F.3d 279, 283
(5th Cir.1994), applying Heck v. Humphrey, --- U.S. ----, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994). However, if the district court
decides "that the plaintiff's [section 1983] 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."
Heck, --- U.S. at ---- - ----, 114 S.Ct. at 2372-73.
While Mackey's pro se complaint is confusing, the district
court construed it as an attack on the constitutionality of his
arrests. It is well established that a claim of unlawful arrest,
standing alone, does not necessarily implicate the validity of a
criminal prosecution following the arrest. United States v.
Wilson, 732 F.2d 404, 410 (5th Cir.), cert. denied, 469 U.S. 1099,
105 S.Ct. 609, 83 L.Ed.2d 718 (1984) (citing Gerstein v. Pugh, 420
U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Frisbie v. Collins,
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342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); Ker v. Illinois,
119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886)). See also Brown v.
Edwards, 721 F.2d 1442, 1448 (5th Cir.1984) ("[T]here is nothing
necessarily inconsistent between the arrest being illegal and [the]
conviction being proper.").
The record does not clearly reflect that a successful attack
on Mackey's arrests will implicate the validity of his confinement.
It is not clear whether or not Mackey has been tried or convicted.
When his suit was filed, it appears that he was confined pursuant
to the March 21 indictment, the validity of which would not
necessarily be implicated by any illegality in earlier arrests. If
Mackey is tried and convicted and in his contested criminal case no
evidence is presented resulting directly or indirectly from any of
his arrests, it is difficult to see how any illegality in any of
his arrests could be inconsistent with his conviction. On the
other hand, if he is convicted and evidence is presented by the
prosecution at his criminal trial which is a direct or indirect
product of one or more of his arrests, then his section 1983 damage
claims challenging the validity of his arrests would appear to
undermine the validity of his conviction and hence be barred by
Heck. Of course, in any event any equitable relief in the nature
of release from confinement would be barred by Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).
At this point it is simply premature to determine whether or
not Mackey's damage claims are barred under Heck. Accordingly, the
district court erred in dismissing the claims on the basis of Heck.
4
The court may—indeed should—stay proceedings in the section 1983
case until the pending criminal case has run its course, as until
that time it may be difficult to determine the relation, if any,
between the two.
The judgment of the district court is VACATED and the cause is
REMANDED.
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