Concurring:
I fully join in today’s opinion but write separately because, although we decided this case easily without reference to the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), both the District Court and the parties addressed it, and it is an issue that continues to cause some consternation in this Circuit.
In fact, there are many § 1983 actions, like the one here, that can be disposed of on a motion to dismiss without ever needing to reach any Heck questions or indeed without needing to discuss Heck at all. Because many Heck issues are contentious, I believe that a decision on these other grounds is generally preferable.
For example, where a suit is brought asking for relief that § 1983 does not give, the case can be dismissed on that ground without considering § 1983’s intersection with the availability of habeas, a crucial and complex issue under Heck. The same *829is true where there is an obvious and overwhelming defense to the § 1983 action — the statute of limitations has run, for instance, or the defendants have absolute or qualified immunity. If an element of the underlying claim has not been met (as in a claim for malicious prosecution where there has been no favorable termination), again, there is no need to reach difficult Heck issues. So too, the case can be dismissed without reference to Heck when the cause of action is one in which plaintiffs must prove causation and cannot as a matter of law.
All this is simply to repeat that many cases that have the potential to raise Heck questions can be disposed of based on well-settled principles upon which there is broad agreement, and when that is so, it is generally desirable for us and for district courts to decide them on these non Heck grounds. Inevitably, however, cases will arise that require us to settle the outstanding issues in this area; when they do, caution will be the best defense against regret. Let me explain.
In Heck, the Supreme Court held that where the success of a § 1983 claim would “necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement,” the complaint must be dismissed unless the plaintiff can “prove that the 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.” 512 U.S. at 486-87, 114 S.Ct. 2364. In other words, the Court continued,
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; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.
Id. at 487, 114 S.Ct. 2364.
In the years since Heck was decided, we have emphasized the importance of the word “necessarily,” and have held that the proper standard when applying Heck is “whether a prisoner’s victory in a § 1983 suit would necessarily demonstrate the invalidity of his conviction or sentence.” McKithen v. Brown, 481 F.3d 89, 102 (2d Cir.2007) (emphasis original). Under McKithen, therefore, the mere fact that success in a § 1983 suit would make it. more likely that, a conviction or sentence is invalid would seem to be irrelevant to the Heck inquiry. Id. Yet what “necessarily demonstrates” the invalidity of a sentence or conviction is often anything but easy to decide, and hence the applicability vel non of Heck can be, to put it mildly, troublesome.
Similarly, if we accept that a § 1983 suit does “necessarily” attack a conviction or sentence, what happens if the plaintiff is no longer in custody and therefore cannot challenge the lawfulness of his confinement through habeas? On this issue, there is a deep circuit split.1 The law in this Circuit, *830however, holds — whether correctly or not — that Heck does not bar § 1983 claims when habeas is unavailable, at least so long as the unavailability was not intentionally caused by the plaintiff. See Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir.2001); Green v. Montgomery, 219 F.3d 52, 60 n. 3 (2d Cir.2000); Jenkins v. Haubert, 179 F.3d 19, 27 (2d Cir.1999); Leather v. Eyck, 180 F.3d 420, 424 (2d Cir.1999). Indeed, it is only because of these seemingly binding Circuit cases that in Poventud v. City of New York the panel majority (as opposed to the en banc majority) reached the Nee/c-habeas issue that led to en banc consideration in the first place. 715 F.3d 57, 61-62 (2d Cir.2013), aff'd on other grounds on reh’g en banc, 750 F.3d 121 (2d Cir.2014).
The animating rationale of this result was stated to be that “some federal remedy — either habeas corpus or § 1983 — must be available” to redress constitutional violations. Jenkins, 179 F.3d at 27. Yet there are clearly many members of our Court who disagree deeply with that rationale and our Circuit’s apparent position. See Poventud v. City of New York, 750 F.3d 121,(Jacobs, J., dissenting).
I believe that the law of our Circuit remains as it was despite our recent en banc decision in Poventud, in which— though the issue was squarely presented— the majority failed to reach the question of Heck’s applicability when habeas is unavailable, and ruled instead that because Poventud’s § 1983 claim did not undercut his guilty plea, Heck was no obstacle. 750 F.3d at 134-35. That holding explicitly did nothing to disturb the cases cited above. Id. at 125 n. 1.
Thus, until the Supreme Court rules that our position is wrong, or we resolve the issue en banc, I think that the law in this Circuit remains what it was: when a plaintiff does not have access to habeas— at least where the plaintiff has not intentionally caused habeas to be unavailable— favorable termination of the underlying sentence or conviction is not required. That said, who can doubt that this position, which has split the circuits and has been forcefully attacked by a significant number of judges on our Court, is controversial and hence to be avoided where other, easier grounds for deciding cases are available?
Moreover, what does remain an open question, even in this Circuit, is perhaps even more difficult: whether Heck bars § 1983 suits when the plaintiff has intentionally defaulted his habeas claims. I know of no circuit cases that allow § 1983 claims to proceed in such circumstances, and some have suggested they cannot. See Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir.2010) (“[A] petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.”) (emphasis added); Guerrero v. Gates, 442 F.3d 697, 705 (9th Cir.2006) (“[Plaintiff] cannot ... use his failure timely to pursue habeas remedies as a shield against the implications of Heck.”). And despite suggestions to the contrary, Poventud, 715 F.3d at 70 (Jacobs, J., dissenting), the Poventud panel majority did not address, let alone attempt to decide, the issue.2
*831Nevertheless, there are serious arguments to be made on both, sides of the question. To discuss those arguments, however, is beyond the scope of this concurrence. For today, it is enough to suggest that here, too, we would be wise to move cautiously when deciding future cases, ruling narrowly where possible, and confining ourselves to the facts before us.
And this brings us back to the beginning of this concurrence. When there are noncontroversial, non -Heck grounds for ruling, we and district courts would be well advised to decide on those grounds rather than needlessly on Heck ones.
. The Fourth, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have all either explicitly recognized, or suggested they would recognize, some exception to Heck when habeas is unavailable, at least where the plaintiff has not intentionally caused the unavailability. See Cohen v. Longshore, 621 F.3d 1311, 1317 (10th Cir.2010); Wilson v. Johnson, 535 F.3d 262, 267-68 (4th Cir.2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 603 (6th Cir.2007); Harden v. Pataki, 320 F.3d 1289, 1298-99 (11th Cir.2003); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir.1999); Nonnette v. Small, 316 F.3d 872, 876 (9th Cir.2002). The First, Third, Fifth, and Eighth Circuits do not. See Entzi v. Redmann, 485 *830F.3d 998, 1003 (8th Cir.2007); Gilles v. Davis, 427 F.3d 197, 209 n. 8, 211 (3d Cir.2005); Randell v. Johnson, 227 F.3d 300, 301 (5th Cir.2000); Figueroa v. Rivera, 147 F.3d 77, 80-81 n. 3 (1st Cir.1998).
. Indeed, it could not have resolved this question because, far from intentionally allowing his habeas claim to lapse, Poventud went to state court and succeeded in having his initial conviction vacated. People v. Poventud, 10 *831Misc.3d 337, 802 N.Y.S.2d 605, 608 (Sup.Ct. Bronx Cnty.2005).