[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 14, 2003
No. 02-11508
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 01-00527-CV -BH-C
NED HUG HES ,
Plaintiff- Appe llant,
versus
CHA RLES LO TT, P olice Of ficer,
DEN NIS J OHN SON , et al.,
Defen dants-A ppellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(November 14, 2003)
Before TJOF LAT, BA RKET T and HIL L, Circuit Judges.
BARKE TT, Circuit Judge:
Ned H ughes a ppeals th e district co urt’s dism issal, purs uant to 2 8 U.S .C. §
1915(e)(2)(B)(i) and ( ii), of his pro se and in form a paupe ris civil rights action
under 4 2 U.S .C. § 19 83 again st several C ity of M obile po lice officer s. In his
complaint, Hughes alleges that the police officers violated his Fourth Amendment
rights by stopping, searching, and arresting him without reasonable suspicion,
probab le cause, o r a warr ant. He a lso alleges that the of ficers’ treatm ent of him
after the in itial stop an d arrest, in cluding holding him aga inst his w ill, forcing him
to remove his clothes and wait in the cold, and interrogating him in his underwear,
was un constitutio nal. Fina lly, Hug hes claim s that the o fficers too k severa l of his
items without a warrant or his consent and never returned them. Prior to service of
process, the district court found that Hughes’s claims w ere barred by Heck v.
Humphrey, 512 U .S. 477 (1994); res judica ta; the Prison Litigation Reform Act, 42
U.S.C. § 1997e(e); and the statute of limitations. It therefore dismissed them sua
sponte.
On appeal, Hughes asserts that: (1) his claim of an unlawful search and
seizure is not precluded by Heck, because his convictions would not necessarily be
invalidated if he prevailed; (2) his claims are not barred by res judica ta because his
prior co mplaint w as dismis sed with out preju dice; (3) h is comp laint requ ests
nominal damages, which are not barred by 42 U.S.C. § 1997e(e), for violations of
his Fou rth Am endme nt rights; a nd (4) th e factual re cord w as insuff iciently
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developed for the district court to determine that the statute of limitations period
was not tolled for his depriv ation of prop erty claim. We a ffirm the district cou rt’s
order with regard to the deprivation of property claim. However, we reverse and
remand for further pro ceedings on the remainder of H ughes’s claims.
BACKGROUND
Hughes is serving life sentences in Alabama state prison for two 1997
convictions for second-degree burglary and receipt of stolen property. In 1998, he
filed a complaint in federal district court alleging that the police officers’ actions
before and after he was taken into custody violated the Fourth, Fifth, Sixth, Eighth,
and Fourteenth Amendments. The district court dismissed that complaint without
prejudic e prior to service o f proces s, holdin g that H ughes’s claims of illegal arres t,
search and seizure, and coerced confession would have the effect of undermining
his burglary conviction and were therefore barred by the rule in Heck. In addition,
it held that his post-custody claims did not allege physical injury – only mental
anguish, humiliation, and emotional distress – and therefore were barred under 42
U.S.C. § 1997e(e).
Hugh es filed a se cond co mplaint in 2001,w hich is the subject o f this app eal,
similarly alleging violations of his Fourth, Fifth, and Fourteenth Amendment
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rights. U nlike his f irst comp laint, how ever, H ughes’s second compla int explicitly
seeks compensatory damages for property seized by the police officers. In
addition, it does not seek damages for time spent incarcerated. The district court
again dismissed the complaint prior to service of process, relying on Heck and §
1997e(e) as well as the doctrine of res judica ta for the claims raise d in Hug hes’s
first complaint. It dismissed Hughes’s deprivation of property claim as barred by
the two-year statute of limitations. Hughes now appeals.
STANDARD OF REVIEW
In form a paupe ris proceed ings are g overne d by 28 U.S.C . § 1915 .
Subsection (e)(2) of that statute provides that “the court shall dismiss the case at
any time if the court determines that . . . (B) the action or appeal – (i) is frivolous
or malicious [or]; (ii) fails to state a claim upon which relief may be granted . . . .”
28 U.S.C. § 19 15(e)(2). A district court’s sua spo nte dismissal for failure to state a
claim under § 1915(e)(2)(B)(ii) is reviewed de novo, viewing the allegations in the
compla int as true. Mitchell v. Farcass, 112 F .3d 148 3, 1490 (11th C ir. 1997 ).
Similarly, a district court’s ruling on issues of res judica ta is reviewed de novo.
NAACP v. Hunt, 891 F.2d 1555 , 1560 (11th Cir. 1990 ). A district court’s sua
sponte dismissal for frivolity under 28 U.S.C. § 1915(e)(2)(B)(i) is reviewed for
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abuse o f discretio n. Bilal v. Driver, 251 F .3d 134 6, 1348 (11th C ir. 2001 ). “Pro se
pleadings are held to a less stringent standard than pleadings d rafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States, 148
F.3d 1262, 1263 (11th Cir. 1998) (per curiam).
DISCUSSION
I. Heck v. Humphrey
Under Heck v. Humphrey, 512 U.S. 477 (1994), a state prisoner may not
bring a claim for damages under 42 U.S.C. § 1983 “if a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction.” Id. at 487. As
the Supreme Co urt noted, the most obvious exam ple of an action barred by Heck is
one in w hich the p laintiff actu ally “seek[s ] damag es directly a ttributable to
conviction or confinement.” Id. at 487 n.6. But even when the plaintiff does not
seek such damages, his suit may be barred if, for example, he must negate “an
element o f the offe nse of w hich he h as been c onvicted ” in orde r to prev ail, id., or if
he conte nds that th e statute un der wh ich he w as conv icted is un constitutio nal.
The Court explained in a footnote, however, that its holding would not
necessarily preclude a Fourth Amendment claim of illegal search and seizure:
For ex ample, a s uit for da mages a ttributable to an alleg edly unr easonab le
search may lie even if the challenged search produced evidence that was
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introdu ced in a sta te crimina l trial resultin g in the § 1983 p laintiff's
still-outstanding conviction. Because of doctrines like independent source
and inevitable discovery, . . . and especially harmless error, . . . such a §
1983 a ction, eve n if succe ssful, w ould no t necessar ily imply that the
plaintiff's conviction was unlawful. In order to recover compensatory
damages, however, the § 1983 plaintiff must prove not only that the search
was unlawful, but that it caused him actual, compensable injury, . . . which,
we hold today, does not encompass the "injury" of being convicted and
imprisoned (until his conviction has been overturned).
Id. at 487 n.7 (citations omitted) (emphasis in original). Because an illegal search
or arrest m ay be follo wed b y a valid co nviction , see id.,1 a successful § 1983 action
for Fourth Amendment search and seizure violations does not necessarily imply the
invalidity o f a conv iction. A s a result, Heck does not generally bar such claims. 2
See Datz v. Kilgore, 51 F.3d 252, 253 n.1 (11th Cir. 1995) (per curiam) (“Heck v.
Humphrey . . . is no bar to Datz’ civil action because, even if the pertinent search
did viola te the Fed eral Con stitution, D atz’ conv iction mig ht still be va lid
considering such doctrines as inevitable discovery, independent source, and
harmles s error.”) ; see also Moore v. Sims, 200 F.3d 1170 (8th Cir. 2000) (per
curiam) (holding that unlawfu l seizure claims are not barred by Heck); Beck v.
1
See also Haring v. Prosise, 462 U.S. 306, 321-22 (1983); Gerstein v. Pugh, 420 U.S.
103, 119 (1975) (“illegal arrest or detention does not void a subsequent conviction”).
2
In Heck, the Supreme Court noted that some Fourth Amendment claims would, if
successful, necessarily imply the invalidity of the conviction because they would negate an
element of the offense. For example, a successful § 1983 claim for unreasonable seizure might
negate an element of the offense of resisting arrest. See Heck, 512 U.S. at 487 n.6. Thus, the
court must look both to the claims raised under § 1983 and to the specific offenses for which the
§ 1983 claimant was convicted.
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City of M uscogee P olice Dep’t, 195 F.3d 553, 558 (10th Cir. 1999) (finding that
Heck did not apply to defendant’s claims of illegal arrest, search, and seizure);
Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (observing that the
Seventh Circuit interprets Heck to allow all § 1983 claims for unlawful searches or
seizures u nder the Fourth Amen dment to go forw ard). But see Harvey v. Waldron,
210 F.3d 1008, 1110 (9th Cir. 2000) (concluding that under Heck, § 1983 claims of
illegal search and seizure of evidence on which criminal charges are based do not
accrue until the charges have been dismissed or the conviction has been
overtur ned); Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996) (holding that
Heck barred the defendant’s claims of false arrest and excessive force based on the
specific fa cts of the c ase); Schilling v. Wh ite, 58 F.3d 1081, 1086 (6th Cir. 1995)
(finding that under Heck, setting aside a conviction is a precondition for bringing
Fourth Amen dment c laims).
In this case, the circumstances surrounding Hughes’s convictions for
burglary and receipt of stolen property are unknown from the record. It was
impossible, therefore, for the district court to determine that a successful § 1983
action for unreasonable search and seizure necessar ily implied the invalidity of
those convictions. The district court therefore erred in finding these claims barred
under Heck at this stage in the pro ceeding s.
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II. Res Jud icata
Additionally, the district court erred by alternatively finding that, according
to the doctrine of res judica ta, Hughes failed to state a claim. Under res judica ta, a
final judgment bars a subsequent lawsuit relitigating matters that were litigated or
could h ave been litigated in th e earlier su it. I.A. Durbin, Inc. v. Jeffers on Nat’l
Bank, 793 F .2d 154 1, 1549 (11th C ir. 1986 ). How ever, res judica ta does no t apply
if there w as no fin al judgm ent on th e merits in the earlier s uit. Id. A dismissal
without prejudice is not an adjudication on the merits and thus does not have a res
judicata effect. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 396 (1990). In
this case, th e district co urt dism issed w ithout pr ejudice H ughes’s claims rais ed in
1998. Accordingly, the doctrine of res judica ta did not bar Hughes from
reasserting the same claims in 2001.
The district court’s reliance to the contrary on Denton v. Hernandez, 504
U.S. 25 (1992), is misplaced. Describing the appropriate standard of review for §
1915(d) dismissals, 3 the Denton Court noted that one factor to consider is “whether
the dismissal was with or without prejudice.” Id. at 34. The Court then continued
by observing that § 1915(d) dismissals are not dismissals on the merits and,
3
In 1996, 28 U.S.C. § 1915(d) was redesignated as § 1915(e), pursuant to the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 804, 110 Stat.
1321-74 (April 26, 1996).
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therefor e, do no t prejudic e the later filin g of a pa id comp laint. Id. They “could,
however, have a res judicata effect on frivolousness determinations for future in
forma p auperis petitions.” Id. As a result, a reviewing court “should consider
wheth er the distr ict court ab used its d iscretion b y dismiss ing the co mplaint w ith
prejudice or without leave to amend.” Id. Thus the Denton Court recognized no
res judica ta effect of § 1915 dismissals on subsequent paid complaints but, at the
same time, stressed to the courts of appeal the importance of considering whether
the dismissal was with or w ithout prejudice. The logical conclusion is that only §
1915 dismissals with prejudice would have a res judica ta effect on future in forma
pauper is petitions; the distinction between “with” or “without” would otherwise be
meaningless. The district court therefore erred in finding here that the earlier §
1915 d ismissal without prejudice barred Hughes’s 2001 in form a paupe ris claims.
III. Prison Litigation Reform Act
Hughes’s 2001 complaint also seeks damages for his treatment by the police
officers a fter he w as taken in to custod y. He alleg es that he w as forced to strip
down to his underwear, sit in the cold for an extended period, and then answer
question s at the po lice station, s till wearin g only h is under wear. C haracterizing it
as an Eighth, or alternatively a Fourteenth, Amendment claim, the district court
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dismissed this claim as barred by the Prison Litigation Reform Act, which
precludes a prisoner from bringing a federal civil action “for mental or emotional
injury suffered while in custody without a prior showing of physical harm.” 42
U.S.C . § 1997 e(e). Hu ghes arg ues on a ppeal tha t, proper ly constru ed, his
compla int raises a F ourth A mendm ent challen ge to the u nreason ableness of his
arrest and seeks no minal da mages. S ection 19 97e(e), h owev er, bars an y claim
seeking compensatory dam ages for emotional distress suffered w hile in custody.4
See Napier v. Preslicka, 314 F .3d 528 , 532 (1 1th Cir. 2 002). H ughes c oncede s this
but argues that § 1997e(e) does not bar nominal damages, which he claims to have
sough t.
Nominal damages are appropriate if a plaintiff establishes a violation of a
fundam ental con stitutional r ight, even if he cann ot prov e actual inju ry sufficie nt to
entitle him to comp ensatory damag es. Carey v. Piphus, 435 U.S. 247, 255 (1978).
Nom inal dam ages are a vailable fo r Four th Am endme nt violatio ns. See Slicker v.
Jackson, 215 F.3d 1225, 1227 (11th Cir. 2000) (approving of nominal damages
award in Fou rth Am endme nt excess ive force claim). Relying on the plain text of
the statute, the Second, Third, Seventh, Ninth, and Tenth Circuits have interpreted
4
Section 1997e(e), however, “only precludes some actions for money damages, and does
not materially thwart actions for declaratory and injunctive relief.” Harris v. Garner, 190 F.3d
1279, 1288 (11th Cir. 1999), vacated, 197 F.3d 1059 (11th Cir. 1999), reinstated in relevant part,
216 F.3d 970, 972 (11th Cir. 2000) (en banc).
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§ 1997 e(e) not to preclud e a prison er from seeking nomin al damag es. See Calhoun
v. Detella , 319 F .3d 936 , 941 (7 th Cir. 20 03); Oliver v. Keller, 289 F.3d 623, 630
(9th Cir . 2002) ; Thompson v. Carter, 284 F .3d 411 , 418 (2 d Cir. 20 02); Searles v.
Van Bebber, 251 F .3d 869 , 878-7 9 (10th Cir. 200 1); Allah v. Al-Hafeez, 226 F.3d
247, 252 (3d Cir. 2000).
The dis trict court d ismissed Hugh es’s com plaint sua spo nte before service of
process. Thus, the issue of whether § 1997e(e) precludes a prisoner from seeking
nominal damages has not been presented in any way to the district court, and the
district cou rt did no t conside r wheth er Hug hes’s com plaint cou ld be liber ally
constru ed to req uest nom inal dam ages. See Leal v. Ga. Dep’t of Corrections, 254
F.3d 127 6, 1280 (1 1th Cir. 200 1) (per curiam ) (vacating the d istrict court’s
judgment and remanding to allow that court to consider the legal question in the
first instance). Thus this claim should be considered by the district court in the
first instance.
IV. Depriv ation of P roperty
Finally, the district court dismissed Hughes’s deprivation-of-property claims
under the Fourteenth Amendment on the grounds that they were filed outside of
Alabama’s two-year statute of limitations applicable to § 1983 actions and were
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therefore frivo lous under 28 U.S .C. § 1915 (e)(2)(B)(i). T o dismiss a pr isoner’s
complaint as time-barred prior to service, it must “appear beyond a doubt from the
complaint itself that [the prisoner] can prove no set of facts which would avoid a
statute of limitations bar.” Leal, 254 F.3d at 1280. From the complaint, it is clear
that more than two years passed between the accrual of Hughes’s property claims
and the filing of his complaint in 2001. Hughes asserts, however, that he may be
able to show that the limitations period was tolled if he is given a chance to amend
his com plaint.
In Leal, the district c ourt sua spo nte dismisse d the pris oner’s § 1983 s uit
because, on its face, the complaint appeared to be barred by the two-year statute of
limitations. On appeal, Leal argued and we found that the statute of limitations
may hav e been to lled wh ile he exh austed h is admin istrative rem edies. A s a result,
given the facts of Leal’s case, we concluded that “it does not appear beyond a
doubt f rom the compla int itself that L eal can pr ove no set of facts which would
avoid a statute of limitations bar.” Id. We vacated the district court’s opinion and
remand ed for L eal to pres ent his arg ument to that cour t first.
Although the procedural posture here is similar, Hughes, unlike Leal, has
pointed us to no particular reason w hy the statu te of limitatio ns migh t be tolled in
his case, and we can discern none from the record. We therefore conclude that the
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district court did not abuse its discretion in dismissing Hughes’s claim. The
district cou rt’s order did not, h owev er, specify that it dism issed this c laim with
prejudice. Thus, if Hughes is able to plead facts that would support a finding that
the statute o f limitation s has bee n tolled, h e should be gran ted leave to amend his
compla int.
AFFIRM ED in part and REVER SED in part.
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