           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         November 7, 2007

                                       No. 05-61068                   Charles R. Fulbruge III
                                                                              Clerk

ERIC LAQUINNE BROWN

                                                  Plaintiff-Appellant
v.

ROBERT G. SUDDUTH, LARRY POOL, MIKE MCGOWAN, and
FRANKY DANIELS

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:02-CV-12


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       This case is before us for a third time. Eric Laquinne Brown, Mississippi
prisoner #K0577, filed the instant 42 U.S.C. § 1983 action against Robert
Sudduth, Larry Pool, Mike McGowan, and Franky Daniels alleging that he was
arrested without probable cause or a warrant in violation of his Fourth and
Fourteenth Amendment rights. He seeks compensatory and punitive damages,
as well as attorneys’ fees and costs.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 05-61068

      The district court first sua sponte dismissed Brown’s complaint without
prejudice pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) on the ground that
a claim for damages under § 1983 would not accrue until Brown’s conviction or
sentence had been invalidated. This court reversed. See Brown v. Subbuth, No.
02-60257 (5th Cir. Dec. 30, 2002). This court held that dismissal under Heck
was premature because Brown’s allegations did not clearly challenge the validity
of his confinement and did not reflect whether a favorable judgment on his
illegal arrest claim would necessarily imply the invalidity of his conviction. Id.
at *2. On remand, the district court again sua sponte dismissed Brown’s
complaint, this time with prejudice, for failure to state a claim upon which relief
could be granted. According to the district court, nothing in the facts indicated
that Brown’s arrest was unlawful. This court reversed. See Brown v. Sudduth,
93 F. App’x 674 (5th Cir. Apr. 5, 2004). This court held that because Brown had
alleged both state action and the denial of a constitutional right, his complaint
stated a claim upon which relief could be granted.
      On remand for a second time, service of process was effectuated on the
defendants, who then moved to dismiss Brown’s complaint and, alternatively, for
summary judgment, on three grounds: (1) Brown’s claims were Heck barred, (2)
probable cause existed to arrest Brown, and (3) Brown’s knowing and voluntary
guilty plea broke the chain of causation necessary to establish a § 1983 claim.
The district court again dismissed Brown’s complaint with prejudice. This time,
the district court gave three alternative bases for dismissing the complaint.
First, the district court held that Brown’s guilty plea waived any non-
jurisdictional defects to his conviction. Second, the district court held that
Brown’s claims were Heck barred. Third, the district court held that because
Brown did not suffer any physical injury, he was not entitled to any monetary
damages for mental or emotional injury under § 1983. Brown filed a timely
notice of appeal. We again reverse.

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1.    Guilty Plea and Waiver
      The district court first held, without citation to authority, that because
Brown entered a plea of guilty waiving all non-jurisdictional defects to his
conviction, he also waived any § 1983 claim that he was arrested without
probable cause. The Supreme Court has flat out rejected this argument:
      Under our past decisions, as the District Court correctly recognized,
      a guilty plea results in the defendant’s loss of any meaningful
      opportunity he might otherwise have had to challenge the
      admissibility of evidence obtained in violation of the Fourth
      Amendment. It does not follow, however, that a guilty plea is a
      “waiver” of antecedent Fourth Amendment claims that may be given
      effect outside the confines of the criminal proceeding. The
      defendant’s rights under the Fourth Amendment are not among the
      trial rights that the necessarily waives when he knowingly and
      voluntarily pleads guilty.

Haring v. Prosise, 462 U.S. 306, 320-21 (1983). In fact, this court has explicitly
rejected the argument that a guilty plea in a Mississippi state court has any
collateral estoppel or res judicata effect on subsequent § 1983 actions challenging
the legality of an arrest. See Brown v. Edwards, 721 F.2d 1442, 1447-48 (5th
Cir. 1984). As the Seventh Circuit cogently explained:
      [T]he existence of probable cause and a finding of guilt are two
      distinct issues. Because [the plaintiff] did plead guilty to making a
      threatening phone call to [the victim], it is tempting to say, ex ante,
      that [the officer’s] belief that [the plaintiff] had committed the
      offense of telephone harassment must have been reasonable.
      However, there is no evidence that [the plaintiff’s] guilty plea
      established what [the officer] knew at the time of the arrest -- the
      relevant time period for the probable cause analysis. Thus, we
      decline to conclude that [the plaintiff’s] § 1983 claim is barred by
      collateral estoppel.

Reynolds v. Jamison, 488 F.3d 756, 766 (7th Cir. 2007); see also Mangieri v.
Clifton, 29 F.3d 1012, 1016 (5th Cir. 1994) (relevant inquiry for § 1983 unlawful
arrest claim is whether arresting officers had probable cause at time of arrest,


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                                  No. 05-61068

not whether decision to arrest could be justified by information learned later).
Here, there is no evidence that Brown’s guilty plea established what the
defendants knew at the time of his arrest.            Indeed, the circumstances
surrounding the arrest and the issue of probable cause were never even
mentioned -- let alone established -- during the plea colloquy. Accordingly, the
district court erred in concluding that the mere existence of Brown’s guilty plea
necessarily waived any subsequent § 1983 challenge to the legality of his arrest.
2.    Heck v. Humphrey
      The district court, relying on Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995)
and Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995), next held that Heck barred
Brown’s § 1983 unlawful arrest claim. In Heck, the Supreme Court held:
      [I]n order to recover damages for allegedly unconstitutional
      conviction or imprisonment, or for other harm caused by actions
      whose unlawfulness would render a conviction or sentence invalid,
      a § 1983 plaintiff must 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. . . . Thus, 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. But 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, in the absence of some other bar to the suit.

512 U.S. at 486-87. In Wells, this court addressed the applicability of Heck to §
1983 unlawful arrest claims and held that Heck bars any such claim when the
underlying conviction is for resisting a search. 45 F.3d at 96. As this court
explained, “Wells’s proof to establish his false arrest claim, i.e., that there was
no probable cause to arrest either for disorderly conduct or for resisting a search,

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would demonstrate the invalidity of Wells’s conviction for resisting a search.”
Id. at 95 (emphasis in original). Heck compelled this result. Indeed, in Heck, the
Supreme Court specifically noted that § 1983 unlawful arrest claims cannot lie
in cases in which “[a] state defendant is convicted of and sentenced for the crime
of resisting arrest, defined as intentionally preventing a peace officer from
effecting a lawful arrest. . . . [because] he would have to negate an element of the
offense of which he has been convicted.” Heck, 512 U.S. at 487 n.6.
      The district court interpreted Wells -- and Heck -- to mean that any
conviction arising out of an arrest necessarily precludes a § 1983 plaintiff from
challenging the legality of his arrest. However, this interpretation ignores the
central holding in Heck, which limited its bar to § 1983 actions that necessarily
would imply the invalidity of the underlying conviction or sentence. Otherwise,
the Supreme Court explained:
      [A] suit for damages attributable to an allegedly unreasonable
      search may lie even if the challenged search produced evidence that
      was introduced in a state criminal trial resulting in the § 1983
      plaintiff’s still-outstanding conviction. Because of doctrines like
      independent source and inevitable discovery, . . . and especially
      harmless error, . . . such a § 1983 action, even if successful, would
      not necessarily imply that the plaintiff’s conviction was unlawful.

Id. at 487 n.7 (internal citations omitted). In short, because a valid conviction
may follow an illegal arrest, a successful § 1983 unlawful arrest action does not
necessarily imply the invalidity of an underlying conviction. See Mackey, 47
F.3d at 746; see also Covington v. City of New York, 171 F.3d 117, 123 (2d Cir.
1999); Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998); Reynolds
v. Jamison, 488 F.3d 756, 766-67 (7th Cir. 2007); Whitmore v. Harrington, 204
F.3d 784, 784-85 (8th Cir. 2000); Beck v. City of Muskogee Police Dep’t, 195 F.3d
553, 558-59 (10th Cir. 1999); Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003).


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                                        No. 05-61068

       Here, it can hardly be said that the proof required to establish Brown’s
unlawful arrest claim necessarily would imply the invalidity of his underlying
murder conviction. See Brown, 721 F.2d at 1448 (“There is nothing necessarily
inconsistent between the arrest being illegal and [the] conviction being proper.”);
see also Montgomery, 159 F.3d at 126 n.5 (holding that Heck did not toll statute
of limitations for false arrest claim because proof of claim would not invalidate
drunk driving conviction); Reynolds, 488 F.3d at 766-67 (holding that plaintiff’s
§ 1983 claim for false arrest does not impugn the validity of conviction for
telephone harassment); Whitmore, 204 F.3d at 784-85 (holding that success of
plaintiff’s unlawful-investigative stop claim would not necessarily imply
invalidity of subsequent drug conviction); Beck, 195 F.3d at 558-59 (holding that
plaintiff’s challenge to arrest would not implicate any element of rape conviction
or probation revocation). Thus, the district court erred in concluding that
because Brown was ultimately convicted of the crime for which he was arrested,
Heck necessarily bars his unlawful arrest claim.2
       In Mackey, this court again addressed the applicability of Heck to § 1983
unlawful arrest claims. This court first noted that “a claim of unlawful arrest,
standing alone, does not necessarily implicate the validity of a criminal
prosecution following the arrest.” Mackey, 47 F.3d at 746 (emphasis in original)
(citations omitted). However, in Mackey, the underlying criminal case was still
pending. This court held that dismissal under Heck is premature under such
circumstances. Id. As this court explained:


       2
          The district court also cited Sappington v. Bartee, 195 F.3d 234 (5th Cir. 1999).
However, Sappington is distinguishable. In Sappington, the plaintiff was convicted for
aggravated assault on a police officer. In holding that Heck barred the plaintiff’s § 1983
excessive force claim, this court reasoned, “the question whether the police applied reasonable
force in arresting him depends in part on the degree of his resistance, which in turn will place
in issue whether his resistance (the basis of his conviction for assaulting a police officer) was
justified, which, if it were, necessarily undermines that conviction.” Id. Here, Brown’s
unlawful arrest claim does not necessarily undermine his murder conviction.

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                                  No. 05-61068

      If Mackey is tried and convicted and in his contested criminal case
      no evidence is presented resulting directly or indirectly from any of
      his arrests, it is difficult to see how any illegality in any of his
      arrests could be inconsistent with his conviction. On the other
      hand, if he is convicted and evidence is presented by the prosecution
      at his criminal trial which is a direct or indirect product of one or
      more of his arrests, then his section 1983 damage claims
      challenging the validity of his arrests would appear to undermine
      the validity of his conviction and hence be barred by Heck.

Id. Thus, this court concluded, “[t]he [district] court may -- indeed should -- stay
proceedings in the section 1983 case until the pending criminal case has run its
course, as until that time it may be difficult to determine the relation, if any,
between the two.” Id.
      The district court below interpreted Mackey to mean that § 1983 plaintiffs
may only challenge the legality of their arrests if they were convicted at trial as
opposed to by guilty plea. Nothing in Mackey -- or Heck for that matter -- limits
§ 1983 plaintiffs as such. In fact, this court has permitted § 1983 claims
challenging the legality of an arrest notwithstanding the existence of a guilty
plea. See Ballard v. Burton, 444 F.3d 391, 400-01 (5th Cir. 2006) (finding that
district court erred in determining Heck barred § 1983 action in case involving
Alford plea); see also Thore v. Howe, 466 F.3d 173, 185 (1st Cir. 2006) (rejecting
per se rule that judicial estoppel automatically applies to facts admitted during
plea colloquy in § 1983 action); Reynolds, 488 F.3d at 767 (“Whether Officer Darr
had probable cause to arrest Reynolds has no bearing on the validity of his
subsequent guilty plea and criminal conviction.”); Smith v. City of Hemet, 394
F.3d 689, 699 (9th Cir. 2005) (en banc) (holding that Heck does not bar § 1983
action unless action necessarily impugns underlying conviction even if product
of guilty plea); Dyer v. Lee, 488 F.3d 876, 879, 884 (11th Cir. 2007) (finding that
district court erred in determining that Heck barred § 1983 excessive force action
in case involving guilty plea). Moreover, this court has explicitly rejected the

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                                  No. 05-61068

argument that guilty pleas have any collateral estoppel or res judicata effect on
subsequent § 1983 claims challenging the legality of an arrest. See Brown, 721
F.2d at 1447-48.
      In short, having read Wells too broadly and Mackey too narrowly, the
district court erred in concluding that Heck necessarily barred Brown’s § 1983
claim on the basis that he had been convicted following a guilty plea.
3. Monetary Damages
      The district court finally held that because Brown seeks only monetary
damages and he has not alleged a physical injury, his claim for compensatory
damages must fail. “No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” 42
U.S.C. § 1997e(e). Here, Brown sought compensatory damages for the sole
alleged injury of liberty deprivation. Having not alleged a physical injury, the
district court correctly concluded that Brown’s claim for compensatory damages
must fail. See Heck, 512 U.S. at 487 n.7 (holding that a prisoner is not entitled
to recover compensatory damages stemming from an unlawful search that does
not cause actual, compensable injury, but instead causes only the injury of being
convicted and imprisoned); Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005)
(“Section 1997e(e) applies to all federal civil actions in which a prisoner alleges
a constitutional violation, making compensatory damages for mental or
emotional injuries non-recoverable, absent physical injury.”).
      However, “[t]he law is well-established in this Circuit that plaintiffs may
recover nominal damages when their constitutional rights have been violated
but they are unable to prove actual injury. . . . [and j]ust as nominal damages are
allowed without proof of injury, ‘a punitive award may stand in the absence of
actual damages where there has been a constitutional violation.’” Williams v.
Kaufman County, 352 F.3d 994, 1014-15 (5th Cir. 2003) (quoting Louisiana

                                        8
                                        No. 05-61068

ACORN Fair Housing, Inc. v. LeBlanc, 211 F.3d 298, 302-03 (5th Cir. 2000)).3
This court has not addressed the issue of whether § 1997e(e) bars a claim for
nominal and punitive damages absent an allegation of physical injury. We need
not do so today because the issue of damages is premature given that there has
been no determination of whether Brown has even suffered a constitutional
violation in the first place.4
       For the foregoing reasons, we reverse the decision of the district court and
remand this matter for proceedings consistent with this opinion.5
       REVERSED AND REMANDED.




       3
        Brown maintains that he is entitled to nominal damages in his brief, though he does
not appear to seek such damages in his complaint.
       4
         We do note, however, that the issue has divided our sister circuits. See, e.g.,
Thompson v. Carter, 284 F.3d 411, 418 (2d Cir. 2002) (holding that § 1997e(e) does not bar
recovery for nominal and punitive damages); Allah v. Al-Hafeez, 226 F.3d 247, 251-52 (3d Cir.
2000) (same); Calhoun v. Detella, 319 F.3d 936, 940 (7th Cir. 2003) (same); Munn v. Toney, 433
F.3d 1087, 1089 (8th Cir. 2006) (same); Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998)
(same); Searles v. Van Bebber, 251 F.3d 869, 880-81 (10th Cir. 2001) (same); but see Harris v.
Garner, 190 F.3d 1279, 1282, 1287-88 & n. 9 (11th Cir. 1999), vacated & reh’g en banc granted
by 197 F.3d 1059, reinstated in pertinent part by 216 F.3d 970 (2000) (holding that § 1997e(e)
bars recovery for punitive damages, but reserving issue of whether it also barred nominal
damages); Davis v. District of Columbia, 158 F.3d 1342, 1348-49 (D.C. Cir. 1998) (same).
       5
         The defendants argue that the district court’s decision should be affirmed on the
alternative basis that the evidence establishes that probable cause existed to arrest Brown.
However, the district court did not rule on this basis and we hesitate to make a probable cause
determination for the first time on appeal. Cf. Devenpeck v. Alford, 543 U.S. 146, 156 (2004)
(declining to address issue of probable cause in the first instance on appeal); Mahoney v. United
States, 387 F.2d 616, 617 (5th Cir. 1967) (“Reasonableness and probable cause are, in the first
instance, for the district court to determine.”).

                                               9
