UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7683
ODELL EWING,
Plaintiff - Appellant,
v.
J. A. SILVIOUS, Officer of Raleigh Police Department; K.
KINNEY, Officer of Raleigh Police Department; RALEIGH
POLICE DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cv-00064-F)
Submitted: May 18, 2012 Decided: June 4, 2012
Before GREGORY, SHEDD, and FLOYD, Circuit Judges.
Affirmed as modified in part, vacated in part, and remanded by
unpublished per curiam opinion.
Odell Ewing, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Odell Ewing appeals the district court’s order
dismissing his 42 U.S.C. § 1983 (2006) complaint as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) (2006). To the extent
Ewing raised claims challenging the validity of his conviction,
the district court properly denied relief because Ewing has not
shown that his conviction has been overturned or called into
question. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Because Ewing may refile those claims if his conviction is
invalidated by an appropriate court, we modify the dismissal to
be without prejudice and affirm as modified. We also affirm the
dismissal as frivolous of Ewing’s remaining claims, except for
his claim of excessive force, for the reasons stated by the
district court. See Ewing v. Silvious, No. 5:11-cv-00064-F
(E.D.N.C. Nov. 17, 2011).
Turning to Ewing’s excessive force claim, a district
court must dismiss a case if it determines the action “is
frivolous . . . [or] fails to state a claim upon which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(i), (ii). “[A]
complaint . . . is frivolous where it lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319,
325 (1989). A complaint fails to state a claim if it does not
“contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face,” sufficient to
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“allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks
omitted). Our review of the record leads us to conclude that
the district court erred by dismissing Ewing’s excessive force
claim. See Nagy v. FMC Butner, 376 F.3d 252, 254 (4th Cir.
2004) (reviewing dismissal under § 1915(e)(2)(B)(i) for abuse of
discretion); De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.
2003) (reviewing dismissal under § 1915(e)(2)(B)(ii) de novo).
In his complaint, Ewing alleged that Officer Silvious
used excessive force against him by applying pepper spray while
he was handcuffed and by refusing to provide water to wash the
spray from his face; he also claimed to have suffered physical
injury. This claim does not run afoul of Heck, as its success
would not invalidate Ewing’s conviction. Although the record is
unclear as to the point at which Silvious placed Ewing under
arrest, see Orem v. Rephann, 523 F.3d 442, 446 (4th Cir. 2008)
(discussing standards for excessive force claims under the
Fourth and Fourteenth Amendments), Ewing’s allegations are
sufficient to survive frivolousness review, see Neitzke, 490
U.S. at 325, and to establish “more than the mere possibility of
misconduct” by Silvious. Iqbal, 556 U.S. at 679.
Accordingly, we vacate the district court’s dismissal
of Ewing’s excessive force claim and remand for further
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proceedings. * We affirm, as modified, the remainder of the
district court’s judgment and deny Ewing’s request for
appointment of counsel. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED AS MODIFIED IN PART,
VACATED IN PART,
AND REMANDED
*
This disposition, of course, should not be interpreted as
indicating any view as to the legal or factual merit of Ewing’s
claim of excessive force. It simply reflects our conclusion
that on the sparse record before it, the district court
prematurely dismissed this pro se claim as frivolous.
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