                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                      FILED
                       ________________________
                                                               U .S . COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                             No. 04-14848                               June 28, 2005
                         Non-Argument Calendar                   THOMAS K. KAHN
                       ________________________                      CLERK


               D. C. Docket No. 02-00113-CV-FTM-32-DNF

JOHN ANTHONY VICKERS,

                                                           Plaintiff-Appellant,

                                  versus

ROBIN M. DONAHUE, individually,
JOCK FELT, individually,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                             (June 28, 2005)



Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:
      John Anthony Vickers, proceeding pro se, appeals the district court’s grant

of summary judgment to the defendants on his pro se 42 U.S.C. § 1983 action

alleging, inter alia, Fourth, Eighth, and Fourteenth Amendment violations for

malicious and false arrest. Vickers argues that the district court erred by finding

that his claim alleging malicious and false arrest would necessarily invalidate a

conviction that had not been reversed or declared invalid and, therefore, barred

under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

For the reasons set forth more fully below, we affirm.

      Vickers’s complaint alleged that, on August 18, 1998, Robin M. Donahue, a

Florida Department of Corrections (“DOC”) Community Control Officer, despite

knowing that Vickers was at work during the relevant times, submitted a probable

cause affidavit in which she falsely indicated that Vickers had failed to remain

confined to his residence at 9:30 a.m. and again at 1:30 p.m., an alleged violation

of the terms of Vickers’s community control (Count 1).1 On August 24, 1998,

Donahue allegedly filed another probable cause affidavit, indicating “without

proof” that Vickers had failed to appear in court. According to Vickers, he was

ordered to serve a 90-day sentence for violation of community control, was never

prosecuted, and the warrant was dismissed (Count 2).



      1
          The affidavit and warrant in question list 11:30 a.m., not 9:30 a.m.

                                                  2
       Vickers further alleged that defendant Jock Felt, a DOC Probation Officer

Supervisor issued a factually insufficient affidavit for probable cause to have

Vickers falsely arrested, although Vickers does not state for what violation,

causing Vickers to miss a court appearance (Count 3). Vickers sued both

defendants in their individual capacities and sought $1,000,000 in compensatory

damages and unnamed punitive damages, claiming violations of the Fourteenth and

Eighth Amendments (Count 4).2

       Regarding the court’s resolution of the claim relevant to appeal, as to Count

1 (Donahue knowingly provided false information in an affidavit to secure an

arrest warrant), the district court found that (1) Vickers was no longer in custody,

had never successfully pursued any relief from his conviction and sentence for

violating his community control, and the time had passed in which to challenge his

convictions forming the basis of his present civil claims; (2) despite the

unavailability of habeas relief, Vickers’s claims were still subject to the strict rule

of Heck, requiring that Vickers prove that his conviction or sentence has been



       2
          The court found that Felt was entitled to summary judgment and, therefore, dismissed
that defendant from the case. Furthermore, the only issue raised by Vickers in his brief relates to
the district court’s disposition of Count 1. We find that the district court accurately set out the
procedural posture and factual basis for Vickers’s claim in Count 1 and, therefore, adopt the
facts as set out in the district court’s order granting summary judgment. Any argument
regarding the dismissal of Counts 2-4 are deemed abandoned because Vickers does not argue
against the dismissal of those counts on appeal. See Access Now, Inc. v. Southwest Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

                                                 3
reversed, expunged, or otherwise declared invalid before seeking damages under

§ 1983; and (3) if Vickers were successful under Count 1, it would imply the

invalidity of the order revoking his community control and the resulting nine-

month sentence and, therefore, the claim was barred under Heck. The court

explicitly noted that Vickers, despite having the opportunity to do so, failed to file

any appeal of the order revoking his community control. Thus, summary judgment

was granted to the defendants.

      On appeal, Vickers argues that the district court erred by finding that Heck

barred his § 1983 claim because he was unlawfully arrested in violation of the

Fourth Amendment, a claim that is excepted from Heck because it does not imply

the invalidation of his conviction following the illegal arrest. Citing various cases

from other circuits, he argues that his claim of improper arrest is separate from the

validity of his underlying conviction, which he does not challenge and, therefore,

the district court should not have granted summary judgment on the basis of Heck.

      We review de novo the district court’s grant of summary judgment. Burton

v. Tampa Housing Authority, 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary

judgment is appropriate if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving party is entitled to



                                           4
judgment as a matter of law. Fed.R.Civ.P. 56; Celotex v. Catrett, 477 U.S. 317,

323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

      The essence of Vickers’s complaint in Count 1 is that Donahue, despite

knowing that Vickers was at work at 11:30 a.m. and 1:30 p.m. on August 18, 1998,

filed a false affidavit stating that Vickers was in violation of condition 12 of his

community control because he was not at his place of detention (his home) at those

particular times. However, the amended affidavit and warrant issued for Vickers’s

arrest, marked as Docket No. 97-1815, indicates that Vickers twice violated

condition 12 (failing to remain confined to his approved residence during required

hours) on August 18, 1998, once at 11:30 a.m., and once at 1:30 p.m. On October

29, 1998, a judge entered an order in Case No. 97-1815 finding two violations of

condition 12 of Vickers’s community control and, therefore, revoked Vickers’s

community control and ordered that Vickers serve nine months’ imprisonment in

county jail. Thus, there is a question as to whether Vickers is permitted to seek

damages in a § 1983 action at all.

      As the United States Supreme Court has 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

                                           5
      called into question by a federal court's issuance of a writ of habeas
      corpus, 28 U.S.C. § 2254. A claim for damages bearing that
      relationship to a conviction or sentence that has not been so
      invalidated is not cognizable under § 1983. 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.

Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383

(1994).

      As a preliminary matter, it is undisputed that Vickers would be unable to

pursue a federal habeas petition because he is no longer in custody. The district

court, thus, addressed whether Vickers might fit an exception to Heck because he

had no way to seek a reversal or other invalidation of his conviction. The court felt

compelled to address this issue because, as we have noted, the Supreme Court’s

decision in Spencer v. Kemna, 523 U.S 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)

called into doubt the applicability of Heck in certain circumstances:

      [I]n [Justice Souter’s] concurring opinion in Spencer, joined by
      Justices O'Connor, Ginsburg, and Breyer, he explained that Heck
      should be read as permitting a prisoner to “bring a § 1983 action
      establishing the unconstitutionality of a conviction or confinement
      without being bound to satisfy a favorable-termination requirement
      that it would be impossible as a matter of law for him to satisfy”
      because a habeas claim would be unavailable under the circumstances,
      for instance, to a prisoner who was released while his or her petition
      was pending. Id. at 21, 118 S.Ct. at 990. Otherwise, Heck would

                                          6
      “deny any federal forum for claiming a deprivation of federal rights to
      those who cannot first obtain a favorable state ruling.” Heck, 512
      U.S. at 500, 114 S.Ct. at 2379 (Souter, J., concurring). In her separate
      concurring opinion, Justice Ginsburg indicated that she had come to
      agree with Justice Souter’s reasoning: “Individuals without recourse
      to the habeas statute because they are not ‘in custody’ . . . fit within
      § 1983's ‘broad reach.’” Spencer, 523 U.S. at 21, 118 S.Ct. at 990. In
      his dissent, Justice Stevens added that, “[g]iven the Court’s holding
      that petitioner does not have a remedy under the habeas statute, it is
      perfectly clear . . . that he may bring an action under 42 U.S.C.
      § 1983.” Id. at 25 n. 8, 118 S.Ct. at 992 n. 8. Thus, “five justices hold
      the view that, where federal habeas corpus is not available to address
      constitutional wrongs, § 1983 must be.” Jenkins v. Haubert, 179 F.3d
      19, 26 (2d Cir.1999).

Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003).

      In Harden, we held that “because federal habeas corpus is not available to a

person extradited in violation of his or her federally protected rights, even where

the extradition itself was illegal, § 1983 must be [available]. If it were not, a claim

for relief brought by a person already extradited would be placed beyond the scope

of § 1983, when exactly the same claim could be redressed if brought by a person

to be, but not yet, extradited.” Id. at 1299. However, in Harden we distinguished

between claims under § 1983 that attacked purely procedural issues and those

claims that implied the invalidity of a conviction, and found that the plaintiff’s

claim challenging the validity of the procedures used to extradite him could in no

way imply the invalidity of the underlying conviction. Id. at 1295-96. Thus, our

decision turned on our holding that “extradition procedures, even if they violate

                                           7
federal rights, have no bearing, direct or implied, on the underlying guilt or

innocence of the person extradited.” Id. at 1297.

      The district court noted that a few circuits have permitted § 1983 claims to

proceed where the plaintiff could not bring a federal habeas petition claim because

that plaintiff was either no longer in custody or no case or controversy existed,

rendering any possible habeas petition moot. See e.g., Nonnette v. Small, 316 F.3d

872, 875-76 (9th Cir. 2002) (finding that plaintiff’s challenge to the validity of

prison disciplinary proceedings that resulted in revocation of his good-time credits

could proceed under § 1983 despite the fact that success on the merits would

undermine the validity of those proceedings because any petition for habeas relief

would be dismissed for lack of a case or controversy); Huang v. Johnson, 251 F.3d

65, 75 (2d Cir. 2001) (finding that plaintiff’s challenge to the denial of credit for

time served and claim for false imprisonment could proceed under § 1983 because

she did not challenge the validity of the conviction and habeas relief was not

available); see also Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999) (noting

that, because plaintiff had no habeas relief available to him, his § 1983 claim

alleging an improper prison disciplinary sanction would not be barred under Heck,

but finding that the government had waived its right to raise a Heck defense).

      In contrast, two circuits have concluded that Heck applies to all plaintiffs,



                                           8
even those who cannot seek habeas relief. The logic is as follows:

      We are mindful that dicta from concurring and dissenting opinions in
      a recently decided case, Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978,
      140 L.Ed.2d 43 (1998), may cast doubt upon the universality of
      Heck’s “favorable termination” requirement. See id. at 19-21, 118
      S.Ct. at 989 (Souter, J., concurring); id. at 21-23, 118 S.Ct. at 990
      (Ginsberg, J., concurring); id. at 25 n.8, 118 S.Ct. at 992 n.8 (Stevens,
      J., dissenting). The Court, however, has admonished the lower federal
      courts to follow its directly applicable precedent, even if that
      precedent appears weakened by pronouncements in its subsequent
      decisions, and to leave to the Court “the prerogative of overruling its
      own decisions.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct.
      1997, 2017, 138 L.Ed.2d 391 (1997); see also Rodriguez de Quijas v.
      Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917,
      104 L.Ed.2d 526 (1989). We obey this admonition.

Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) citing Figueroa v. Rivera,

147 F.3d 77, 81 n.3 (1st Cir.1998).

      While we have not explicitly ruled on whether a plaintiff who has no federal

habeas remedy available to him may proceed under § 1983 despite the fact that

success on the merits would undermine the validity of, in this case, an order of

revocation and the resulting nine month sentence, we decline to do so here because

it is unnecessary to the outcome of Vickers’s case.

      First, as the district court pointed out, Vickers was not without a remedy to

seek post-revocation relief. He could have appealed the revocation order and, had

he prevailed, his § 1983 claims would not be barred by Heck. Second, unlike in

Harden, Vickers’s claim here would imply the invalidity of the order of revocation

                                          9
and nine-month sentence he received. The factual basis for his claim is that the

probation officer intentionally used false information in her affidavit that

subsequently caused a warrant to issue because, inter alia, Vickers had violated

condition 12 of his community control on two separate occasions on August 18,

1998. However, the order of revocation, referencing the same case number as the

warrant (97-1815), explicitly states that, inter alia, Vickers twice violated condition

12 of his community control. Therefore, Vickers’s claim, if successful, would

completely invalidate two of the grounds for which his community control was

revoked in the first place without first having had a “favorable termination” as

required under Heck. This is factually different from the outcome in Harden

because here, the relief being sought is not merely procedural, but goes directly to

Vickers’s factual innocence of the community control violation that landed him in

county jail.

      Finally, the three cases cited above that permitted a plaintiff to pursue a

§ 1983 claim because no habeas relief was available did not involve a situation

where a conviction itself was called into question. In Nonnette and Carr, the issue

was the validity of prison disciplinary proceedings revoking good-time credits, and

in Huang the issue was the denial of credit for prison time served and the

conviction was not challenged. See supra. Like in Harden, none of the cases



                                          10
permitting a § 1983 claim to proceed involved a claim that would necessarily

imply the invalidity of a conviction.

      Here, Vickers’s factual basis for his § 1983 claim directly undercuts a signed

court order, which found that Vickers had violated his community control for two

violations of condition 12. As the district court noted, Vickers insists he did not

plead guilty or nolo contendere to these violations, but even taking his assertion as

true, the undisputed fact remains that he was found to be in violation, convicted for

the violation, and sentenced to nine months’ imprisonment. Accordingly, we

conclude that the Heck bar applies to Vickers’s claim despite the unavailability of

habeas relief. Cf. Muhammad v. Close, 540 U.S. 749, 754-55, 124 S.Ct. 1303,

1306, 158 L.Ed.2d 32 (2004) (holding that a plaintiff’s § 1983 suit challenging

state prison disciplinary proceedings was not barred under Heck because it could

not “be construed as seeking a judgment at odds with his conviction.”).

      Given that Heck is applicable to Vickers’s claim, Vickers argues that his

claim of wrongful arrest does not inevitably undermine his conviction, which he

claims he is not challenging. We have held that “[b]ecause an illegal search or

arrest may be followed by a valid conviction, a successful § 1983 action for Fourth

Amendment search and seizure violations does not necessarily imply the invalidity

of a conviction. As a result, Heck does not generally bar such claims.” Hughes v.



                                          11
Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). However, not all Fourth Amendment

claims fit the exception to Heck, and courts “must look both to the claims raised

under § 1983 and to the specific offenses for which the § 1983 claimant was

convicted.” Id. at 1160 n.2.

      As discussed above, while Vickers’s understanding of the law is correct–a

§ 1983 claim of improper arrest does not inevitably undermine a conviction–the

factual basis for Vickers’s claim does inevitably undermine his conviction.

Therefore, we conclude that the district court properly found that Heck bars

Vickers’s claims, and the grant of summary judgment to the defendants was

correct.

      AFFIRMED.




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