                            UNPUBLISHED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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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