UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2021
JOHN WILLIAM BISHOP; DONNA J. BISHOP,
Plaintiffs – Appellants,
and
STATE OF NORTH CAROLINA, ex rel.,
Plaintiff,
v.
COUNTY OF MACON, North Carolina; MACON COUNTY SHERIFF’S
DEPARTMENT; ROBERT L. HOLLAND, Individually and in his
Official Capacity as Sheriff of Macon County; C. J. LAU,
Individually and in his Official Capacity as Deputy Sheriff
of Macon County; GARY GARNER; W. T. POTTS; OHIO CASUALTY
INSURANCE COMPANY,
Defendants − Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Martin K.
Reidinger, District Judge. (2:10-cv-00009-MR-DLH)
Submitted: March 30, 2012 Decided: June 22, 2012
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Paul Louis Bidwell, Asheville, North Carolina; Douglas A. Ruley,
Leicester, North Carolina, for Appellants. Sean F. Perrin,
WOMBLE CARLYLE SANDRIDGE AND RICE, LLP, Charlotte, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
John William Bishop and his mother, Donna J. Bishop
(collectively, “the Bishops”), filed a complaint alleging
violations of 42 U.S.C. § 1983 (2006) and state law arising from
a series of searches of Donna’s home and the seizure and
disposal of various items of personal property. The district
court dismissed the Bishops’ § 1983 claims as barred by Heck v.
Humphrey, 512 U.S. 477 (1994), and the Bishops filed this
appeal. We affirm in part, vacate in part, and remand.
This court reviews de novo a district court’s grant of
a motion to dismiss for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d
176, 179-80 (4th Cir. 2009). When ruling on a Rule 12(b)(6)
motion, we accept “as true all well-pleaded allegations and view
the complaint in the light most favorable to the plaintiff.”
Id. at 180. “[W]e may properly take judicial notice of matters
of public record. . . . We may also consider documents attached
to the complaint, as well as those attached to the motion to
dismiss, so long as they are integral to the complaint and
authentic.” Id. (internal citation omitted).
In Heck, the Supreme Court held that “when a state
prisoner seeks damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence.”
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Heck, 512 U.S. at 487. If the district court answers the
question in the affirmative, then “the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.” Id.
“This mandate is referred to as the ‘favorable termination’
requirement.” Wilson v. Johnson, 535 F.3d 262 (4th Cir. 2008)
The Bishops first argue that, because neither Donna
nor John was ever in custody, a habeas action was not available
to them, and, pursuant to Heck is inapplicable as a bar to their
claims. In Wilson, we considered whether a former prisoner’s
§ 1983 claim was cognizable where he had failed to satisfy
Heck’s favorable termination requirement. Id. at 263-64.
Cognizant of a circuit split on the issue, we stated that:
If a prisoner could not, as a practical matter, seek
habeas relief, and after release, was prevented from
filing a § 1983 claim, § 1983’s purpose of providing
litigants with a uniquely federal remedy against
incursions under the claimed authority of state law
upon rights secured by the Constitution and laws of
the Nations would be severely imperiled.
Id. at 268 (internal citations and quotation marks omitted).
Accordingly, we did “not believe that a habeas ineligible former
prisoner seeking redress for denial of his most precious right —
freedom — should be left without access to a federal court.”
Id.
Appellees contend that Wilson is factually
distinguishable from the case at bar because John was on
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probation for three years and was therefore in custody for state
and federal purposes.
Because John was on probation, he satisfied the
custody requirement for habeas relief. See Jones v. Cunningham,
371 U.S. 237, 240-43 (1963). John argues, however, that whether
his term of probation satisfied the custody requirement is
irrelevant because he has completed probation and is no longer
eligible to pursue habeas relief. We disagree. Wilson
indicated that Heck does not bar a § 1983 suit where “a prisoner
could not, as a practical matter, seek habeas relief.” See
Wilson, 535 F.3d at 268. Unlike the plaintiff in Wilson, who
had a window of only four months to meet the favorable
termination requirement (which he pursued until his release),
John pleaded guilty and was sentenced to thirty-six months’
probation. He did not pursue habeas relief during that thirty-
six-month period. He has made no claim that habeas relief was
unavailable during that time, practically or otherwise. Wilson
does not permit a plaintiff to end-run Heck by simply sitting on
his rights until all avenues for challenging a conviction have
closed.
John asserts that, even if Heck applies, success on
his claim for deprivation of property would not necessarily
imply the invalidity of his convictions. He argues that he was
convicted of an attempted offense and, accordingly, he could be
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convicted of attempted breaking and entering without actually
stealing anything or possessing any stolen property. Although
John is correct that his attempt conviction does not require
that he actually possessed the property in issue, on the facts
of this case, the convictions cannot stand without evidence that
John was in possession of the stolen items. This is so because
his possession was the only evidence that John committed any
offense. See Ballenger v. Owens, 352 F.3d 842, 846-47
(4th Cir. 2003) (where evidence of offense was uniquely
available from search and seizure, § 1983 claim alleging the
search was illegal was barred by Heck). We therefore affirm the
district court’s holding that Heck barred John’s claims.
Turning to Donna’s claims, Appellees offer no argument
as to Wilson’s applicability. The record reflects that she was
never in custody and therefore was unable to obtain a favorable
termination of the charges through a habeas petition. ∗ See
Wilson, 535 F.3d at 268. Because Heck does not bar Donna’s
§ 1983 claim, we are constrained to vacate this portion of the
district court’s order and remand this case to the district
court for further proceedings.
∗
We have considered the supplemental authority filed by
Appellees pursuant to Fed. R. App. P. 28(j), and conclude that
it is not controlling.
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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 decision
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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