                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-7882



MICHAEL ANGELO RIDDICK,

                                               Plaintiff - Appellant,

          versus


LEON   LOTT,  Sheriff;   HOWARD  L.   AUSTIN,
Corporal, Richland County Sheriff Offices,

                                              Defendants - Appellees.


Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(CA-05-2182-RBH)


Submitted:   July 26, 2006                 Decided:   October 12, 2006


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael Angelo Riddick, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

              Michael Angelo Riddick appeals the district court’s order

accepting the recommendation of the magistrate judge and dismissing

his 42 U.S.C. § 1983 (2000) complaint.                     We review de novo a

dismissal     under    28   U.S.C.   §    1915(e)(2)      (2000).     De’Lonta   v.

Angelone, 330 F.3d 630, 633 (4th Cir. 2003).                 We must accept the

allegations in Riddick’s complaint as true and draw all reasonable

factual inferences in his favor.                 See De’Lonta v. Angelone, 330

F.3d 630, 633 (4th Cir. 2003).               After thoroughly reviewing the

record, we vacate the district court’s dismissal order and remand

the case for further proceedings.*

              In his pro se complaint, Michael Riddick contends that

Officer Austin, without provocation, punched Riddick in the face,

causing Riddick to lose three teeth.                In a special interrogatory

ordered by the magistrate judge, Riddick acknowledged that he pled

guilty   in    state   court    to   assaulting       a   police    officer   while

resisting arrest and threatening a public official.                   Riddick has

not appealed the conviction.

              The magistrate judge recommended dismissing the action on

the ground that Riddick’s claim called into question the validity

of his conviction, and Riddick has failed to demonstrate that his

conviction has been reversed, expunged, invalidated, or otherwise


     *
      This opinion should not be read as an indication regarding
our view of the merits of Riddick’s claim. We conclude only that
the action was prematurely dismissed.

                                         - 2 -
called into question as required under Heck v. Humphrey, 512 U.S.

477 (1994).     Riddick filed timely objections.        The district court

accepted the recommendation of the magistrate judge and dismissed

the complaint.

           As a preliminary matter, this case presents a question of

jurisdiction because Riddick appeals from a dismissal without

prejudice. We find appellate jurisdiction exists because the order

of dismissal suggests that no amendment could cure the defects in

Riddick’s case.    See Young v. Nickols, 413 F.3d 416, 418 (4th Cir.

2005); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d

1064, 1066-67 (4th Cir. 1993).

           As the district court recognized, Heck v. Humphrey bars

a § 1983 action if it is clear from the record that its successful

prosecution would necessarily imply that the plaintiff’s earlier

conviction was invalid. The Heck analysis requires a close factual

examination of the underlying conviction.            See Heck, 512 U.S. at

487 n.7 (observing that suits for unreasonable searches may go

forward if the underlying conviction is otherwise saved by such

doctrines as independent source, inevitable discovery, and harmless

error); Ballenger v. Owens, 352 F.3d 842, 846-47 (4th Cir. 2003)

(conducting fact-intensive inquiry to determine whether evidence

from subsequently challenged search was “uniquely available from

the   alleged   illegal   search”    or     was   otherwise   admissible   or

cumulative); Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir.


                                    - 3 -
2001), cert. granted, judgment vacated on other grounds, 537 U.S.

801 (2002) (examining criminal trial transcript to determine if

underlying conviction, based on general verdict, would be called

into question by successful § 1983 suit).

             In this case, the record is sparse.              Without knowing the

factual basis for Riddick’s plea, we cannot determine whether his

claim of police brutality would necessarily imply invalidity of his

earlier    conviction     for   assaulting      an   officer     while   resisting

arrest.      S.C. Code Ann. § 16-9-320 (2003).               It is not clear from

Riddick’s pro se complaint whether the officer’s alleged punch

preceded, coincided with, or followed Riddick’s resistance and

assault.     If the officer’s alleged punch caused Riddick to engage

in the conduct that undergirds his conviction, then a successful

§ 1983 suit would necessarily imply invalidity of that conviction,

since a person cannot be found guilty of resisting arrest if he is

simply    protecting      himself,      reasonably,     against     an   officer’s

unprovoked     attack   or   use   of    excessive     force.      See   State    v.

Williams, 624 S.E.2d 443, 445-46 (S.C. App. 2005).                   If, however,

there is no legal nexus between the officer’s alleged punch and

Riddick’s resistance and assault; that is, the alleged punch

occurred, independently, either before Riddick resisted arrest, or

after his resistance had clearly ceased, then a successful § 1983

suit   for    excessive    force     would   not     imply    invalidity   of    the

conviction.     See Smith v. City of Hemet, 394 F.3d 689, 697-99 (9th


                                        - 4 -
Cir. 2005) (en banc) (“[A] § 1983 action is not barred by Heck

unless the alleged excessive force occurred at the time the offense

[of   resisting    arrest]   was   being     committed.   .   .   .    [If   the

officers’] alleged acts of excessive force . . . occurred before or

after Smith committed the acts to which he pled, [they] would not

invalidate   his   conviction      [for   resisting   arrest].”)      (citation

omitted). In analogous cases, courts have ruled that Heck does not

bar § 1983 actions alleging excessive force despite a plaintiff’s

conviction for resisting arrest because a “state court’s finding

that [a plaintiff] resisted a lawful arrest . . . may coexist with

a finding that the police officers used excessive force to subdue

[the plaintiff].”     Martinez v. City of Albuquerque, 184 F.3d 1123,

1127 (10th Cir. 1999); accord Nelson v. Jashurek, 109 F.3d 142,

145-46 (3d Cir. 1997); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.

1995).   In a similar vein, Riddick’s conviction may coexist with a

finding that the officer’s alleged attack was unprovoked and

occurred independently of Riddick’s own resistance.

           Because the timing of the events is unclear, we vacate

the district court's order dismissing Riddick's action without

prejudice pursuant to Heck and remand for further proceedings

consistent with this opinion.             We dispense with oral argument

because the facts and legal contentions are adequately presented in




                                     - 5 -
the materials before the court and argument would not aid the

decisional process.



                                          VACATED AND REMANDED




                            - 6 -
