                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1119
BILL VANGILDER,
                                           Plaintiff-Appellant,

                               v.

BRIAN BAKER, CITY OF LAFAYETTE, AND LAFAYETTE POLICE
DEPARTMENT,
                                 Defendants-Appellees.
                        ____________
           Appeal from the United States District Court
     for the Northern District of Indiana, Hammond Division.
                No. 03 C 55—Allen Sharp, Judge.

                        ____________
  ARGUED OCTOBER 26, 2005—DECIDED JANUARY 13, 2006
                    ____________



  Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
   EVANS, Circuit Judge. One summer night in 2001, Bill
VanGilder was among the revelers at the Linwood Tavern,
a watering hole in Lafayette (Tippecanoe County), Indiana.
After police responded to a reported brawl at the tavern,
VanGilder was arrested for public intoxication by officer
Brian Baker. VanGilder did not consent to a breath test.
Since the Tippecanoe County Jail had a policy of refusing to
accept inmates suspected of intoxication until they are seen
2                                                 No. 05-1119

by a doctor, Baker transported VanGilder to the emergency
room of St. Elizabeth’s Hospital.
  VanGilder was not a model patient. After one doctor
cleared him for jail, VanGilder demanded additional
examination and treatment, saying he had been injured in
the bar fight. While awaiting further attention, VanGilder
tumbled off his gurney and taunted Baker, “I’m going to
keep you here all night.” The officer handcuffed VanGilder
to the gurney.
  Eventually a second doctor ordered a blood test.
VanGilder resisted, positioning his arm so that hospital
personnel could not reach his veins. Unable to free the arm,
Baker struck VanGilder (we must, of course, at this stage
of the case, assume VanGilder’s view of the facts) several
times about the face. Baker claims that VanGilder kicked
him in the side of the head, resulting in a minor concussion
for which he later received treatment. (VanGilder denies
the kick.) A nurse also said VanGilder was belligerent and
that she feared he might try to grab Baker’s gun.
  According to his police report, Baker responded to the
kick by punching VanGilder “repeatedly in the face with a
closed fist.” VanGilder says Baker punched him between 7
and 10 times, leaving bruises and breaking the orbital
bones around his eyes. In the course of the beating,
VanGilder says he told Baker, “[S]top . . . okay, okay, take
the blood.” During this time, VanGilder says his hands were
secured to the gurney by handcuffs above his head. Baker
characterized his actions as an effort to regain control after
VanGilder’s resistance.
  In his suit against Baker, VanGilder alleges excessive use
of force, an infringement of his civil rights in violation of 42
U.S.C. § 1983. The district court granted Baker’s summary
judgment motion because it believed that VanGilder’s claim
was barred by Heck v. Humphrey, 512 U.S. 477 (1994).
No. 05-1119                                                      3

VanGilder appeals, and, as usual, our review of a grant of
summary judgment is de novo. Merrill v. Trump Indiana,
Inc., 320 F.3d 729, 731 (7th Cir. 2003). Because the district
court erred in its application of Heck, as we will explain, we
reverse and remand.
  Heck is grounded in the “strong judicial policy against the
creation of two conflicting resolutions arising out of the
same or identical transaction.” Heck, 512 U.S. at 484
(citation omitted). Specifically, Heck holds that before a
§ 1983 plaintiff may recover damages for alleged harm
“caused by actions whose unlawfulness would render a
conviction or sentence invalid,” the plaintiff must first prove
that his conviction or sentence has been reversed, ex-
punged, or called into question by the grant of a petition for
habeas corpus. Id. at 486-87. The rule is intended to
prevent “collateral attack on [a] conviction through the
vehicle of a civil suit.” Id. at 484. Since § 1983 “creates a
species of tort liability,” id. at 483 (citation omitted), the
Heck rule underscores “the hoary principle that civil tort
actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments . . . ,” id. at 486.
  To properly apply Heck’s bar against certain damage
actions, a district court must analyze the relationship
between the plaintiff’s § 1983 claim and the charge on
which he was convicted.1 As the Supreme Court explained,
“the district court must consider whether a judgment in


1
   Whatever a plaintiff may originally have been criminally
charged with, in applying the Heck Court’s holding we examine
only the actual conviction. See Heck, 512 U.S. at 486-87 (referring
repeatedly to “conviction” and “sentence”). There is certainly no
authority for Baker’s unsupported assertion that Heck bars a
§ 1983 claim that would necessarily imply the invalidity of a
plaintiff ’s “either actual or potential” conviction.
4                                                 No. 05-1119

favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence . . . .” Id. at 487. If so, the
complaint must be dismissed until the plaintiff can show
the conviction or sentence has been invalidated. Id. How-
ever, “if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed . . . .”
Id. (footnote omitted).
  In a more recent case, the Court emphasized the need for
a clear nexus between the plaintiff’s conviction and the
alleged wrongful government action before the Heck bar
applies. As Justice O’Connor wrote for a unanimous Court,
    [W]e were careful in Heck to stress the importance of
    the term “necessarily.” For instance, we acknowledged
    that an inmate could bring a challenge to the lawful-
    ness of a search pursuant to § 1983 in the first instance,
    even if the search revealed evidence used to convict the
    inmate at trial, because success on the merits would not
    “necessarily imply that the plaintiff’s conviction was
    unlawful.” 512 U.S., at 487, n. 7 (noting doctrines such
    as inevitable discovery, independent source, and
    harmless error). To hold otherwise would have cut off
    potentially valid damages actions as to which a plaintiff
    might never obtain favorable termination . . . .
Nelson v. Campbell, 541 U.S. 637, 647 (2004).
  Contrary to the district court’s view in this case, Heck
does not automatically bar a § 1983 claim simply because
“the processes of the criminal justice system did not end up
in [the] plaintiff’s favor.” A plaintiff need not prove that any
conviction stemming from an incident with the police has
been invalidated, only a conviction that could not be
reconciled with the claims of his civil action.
No. 05-1119                                                  5

  Here, VanGilder was originally charged with felony
battery on a police officer. After plea bargaining, the charge
was reduced, and VanGilder was convicted instead of
resisting a law enforcement officer, a misdemeanor. Thus,
whether this suit is barred by Heck hinges on whether an
action against Baker for excessive use of force necessarily
implies the invalidity of VanGilder’s conviction for resisting.
The answer is no.
  Exactly what happened during the blow-by-blow in the St.
Elizabeth’s emergency room, and thus whether VanGilder
is entitled to damages, is a question to be decided at trial.
But as a threshold matter, it is clear that a judgment for
VanGilder, should he prevail, would not create “two conflict-
ing resolutions arising out of the same or identical transac-
tion.” Heck, 512 U.S. at 484. VanGilder does not collaterally
attack his conviction, deny that he resisted Baker’s order to
comply with the blood draw, or challenge the factual basis
presented at his change of plea hearing. Rather, VanGilder
claims that he suffered unnecessary injuries because
Baker’s response to his resistance—a beating to the face
that resulted in bruises and broken bones—was not, under
the law governing excessive use of force, objectively reason-
able. See Graham v. Connor, 490 U.S. 386, 397 (1989);
McNair v. Coffey, 279 F.3d 463, 466-67 (7th Cir. 2002).
  Were we to uphold the application of Heck in this case, it
would imply that once a person resists law enforcement, he
has invited the police to inflict any reaction or retribution
they choose, while forfeiting the right to sue for damages.
Put another way, police subduing a suspect could use as
much force as they wanted—and be shielded from account-
ability under civil law—as long as the prosecutor could get
the plaintiff convicted on a charge of resisting. This would
open the door to undesirable behavior and gut a large share
of the protections provided by § 1983.
6                                               No. 05-1119

  In support of its holding, the district court cited without
analysis three of our cases applying Heck, but none of them
are relevant to the circumstances of this case. In Kramer v.
Village of North Fond Du Lac, 384 F.3d 856 (7th Cir. 2004),
we noted that a plaintiff’s Fourth Amendment claim over
an alleged unreasonable search did not imply the invalidity
of his conviction for setting up illegal gaming machines. Id.
at 862. In Wiley v. City of Chicago, 361 F.3d 994 (7th Cir.
2004), we observed that a suit for false arrest based on the
plaintiff’s claim that police planted drugs on him “would
necessarily challenge the legality of a prosecution premised
on the planted drugs” and thus could not proceed until the
charges were dismissed. Id. at 997. And in Alejo v. Heller,
328 F.3d 930 (7th Cir. 2003), we said Heck’s favorable-
determination requirement does not apply where a prisoner
challenges only the conditions of confinement, not the fact
or duration of his confinement. Id. at 937.
  Baker argues that even if the district court’s application
of Heck was erroneous, he is protected from suit by qualified
immunity under principles of Harlow v. Fitzgerald, 457 U.S.
800 (1982). Because the district court declined to reach the
issue of qualified immunity, VanGilder did not present or
brief that question. We thus decline Baker’s invitation to
affirm on that ground. Baker may raise a qualified immu-
nity defense after the case returns to the district court.
  The judgment of the district court is REVERSED and the
case REMANDED for further proceedings.
No. 05-1119                                          7

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—1-13-06
