     Case: 16-10067      Document: 00514746043         Page: 1    Date Filed: 12/03/2018




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


                                      No. 16-10067                               FILED
                                                                          December 3, 2018
                                                                            Lyle W. Cayce
JOSEPH S. BLIMLINE,                                                              Clerk

              Plaintiff–Appellant

v.

THIRTY UNKNOWN EMPLOYEES OF THE SECURITIES AND
EXCHANGE COMMISSION; FIFTEEN UNKNOWN EMPLOYEES OF THE
FEDERAL BUREAU OF INVESTIGATION,

              Defendants–Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-3166


Before STEWART, Chief Judge, DENNIS, and WILLETT, Circuit Judges.
PER CURIAM:*
       The district court held that federal prisoner Joseph Blimline’s Bivens
action against various federal actors was barred by Heck v. Humphrey, 512
U.S. 477 (1994). As explained below, we disagree. The Government suggests
alternative grounds for affirming the district court’s dismissal. These
arguments have potential merit, but at this early stage, the record is not




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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sufficiently developed. Accordingly, we VACATE and REMAND for further
proceedings.

                               I. BACKGROUND
A.    Factual
      Joseph Blimline, federal prisoner # 18029-078, sued 30 unknown
employees of the Securities and Exchange Commission and 15 unknown
employees of the Federal Bureau of Investigation under Bivens. Blimline
claims the defendants conspired to violate his constitutional rights by
searching his offices without a warrant and seizing his property in 2009. These
searches led to criminal charges in the United States District Court for the
Eastern District of Texas, where Blimline ultimately pleaded guilty to mail
fraud and conspiracy to commit mail fraud in 2012. He was sentenced to 144
months of imprisonment. See ECF TXED 4:10-CR-137, 59, p.1. As relief,
Blimline sought “a full accounting of [his] property, money damages for loss of
property, compensation for damages and loss of assets, and full discovery.”
      The   magistrate   judge   entered   a    report    and   recommendation
recommending dismissal for failure to state a nonfrivolous claim under 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Specifically, the magistrate
judge stated that Heck barred Blimline’s claims because resolving them in
Blimline’s favor would undermine his federal convictions. The district court
agreed, dismissing the case as frivolous under §§ 1915(e)(2)(B) and 1915A(b)
until such time that Blimline demonstrated he could satisfy the Heck
requirements. The district court also certified that any appeal would not be
taken in good faith under § 1915(a)(3) and Federal Rule of Appellate Procedure
24(a)(3).
      Blimline filed a timely notice of appeal, and moved for leave to proceed
in forma pauperis on appeal. The magistrate judge denied the motion, noting
that the district court had previously certified that any appeal would not be
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                                  No. 16-10067
taken in good faith. A judge of this court granted Blimline’s IFP motion and
directed entry of a briefing schedule. Both sides have filed briefs. Blimline
argues that the district court erred by concluding that his Bivens suit was
barred under Heck. He says permitting the case to proceed does not undermine
the validity of his criminal convictions. The Government does not discuss Heck
at all, and instead urges affirmance on alternate grounds—statute of
limitations, qualified immunity, and failure to comply with mandatory
procedures—because these grounds “provide more straightforward grounds for
dismissal than Heck.” Blimline responds that none of these alternate grounds
have merit.

                II. JURISDICTION AND STANDARD OF REVIEW
A.    Statement of Jurisdiction
      The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction to review the district court’s final order under 28 U.S.C.
§ 1291.
B.    Standard of Review
      A Bivens action is analogous to a 42 U.S.C. § 1983 action except that
§ 1983 applies to constitutional violations by state, rather than federal, actors.
Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). Analysis of a Bivens
claim therefore “parallel[s] the analysis used to evaluate state prisoners’ § 1983
claims.” Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994).
      If the claim is frivolous or fails to state a claim upon which relief may be
granted, then the district court should dismiss the claim. See § 1915(e)(2)(B) &
§ 1915A(b)(1). We review such a dismissal de novo, Green v. Atkinson, 623 F.3d
278, 280 (5th Cir. 2010), using the standard of review applicable to dismissals
made pursuant to Federal Rule of Civil Procedure 12(b)(6). DeMoss v. Crain,
636 F.3d 145, 152 (5th Cir. 2011); see also In re Katrina Canal Breaches Litig.,


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495 F.3d 191, 205 (5th Cir. 2007) (applying de novo review of dismissal for
failure to state a claim using Rule 12(b)(6) standard).
      A plaintiff fails to state a claim upon which relief can be granted when
the claim does not contain “enough facts to state a claim to relief that is
plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Factual allegations must be enough to raise a right to relief above the
speculative level on the assumption that all the allegations in the complaint
are true (even if doubtful in fact).” Bell Atl. Corp., 550 U.S. at 555.

                                III. DISCUSSION
A.    Whether Blimline’s Claim is Heck-Barred
      A plaintiff in a civil rights action under § 1983 may not recover damages
for an “allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or
sentence invalid,” unless he proves “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.” Heck, 512 U.S. at 486–
87 (internal footnote omitted). Heck applies equally to civil rights actions
against federal officials under Bivens. Stephenson, 28 F.3d at 27 & n.1. In
Skinner v. Switzer, 562 U.S. 521 (2011), the Supreme Court held that a
judgment in favor of the plaintiff in his § 1983 suit for an order requiring DNA
testing “would not necessarily imply the invalidity of his conviction” because
the results might prove inconclusive, exculpatory, or might further incriminate
the prisoner. Id. at 533–34 (internal quotation marks omitted, alterations, and
citation omitted).
      Heck supports Blimline’s position. It is true that a plaintiff’s unlawful
search and seizure claim undermines the validity of a conviction. Thus, it is
Heck-barred if evidence that was a direct or indirect product of the alleged
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unlawful search and seizure was presented in the plaintiff’s criminal
conviction proceeding. See Heck, 512 U.S. at 487 n.7; see also Mackey v.
Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (in the context of an allegedly
unlawful arrest). If, however, the illegally obtained evidence is admissible
under the independent source or inevitable discovery doctrine, or if the
evidence’s admission is deemed harmless, Blimline’s claims would not
necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487
n.7. A Fourth Amendment claim may survive if it alleges some damage other
than the conviction and sentence. See id.
      Blimline requested “a full accounting of [his] property, money damages
for loss of property, compensation for damages and loss of assets,” for the SEC
and FBI’s allegedly warrantless search of his office and seizure of his property,
the failure to provide him with an accounting of the assets seized, and the
intentional infliction of emotional distress. The record is not sufficiently
developed to determine whether any illegally obtained evidence was
admissible under the independent source or inevitable discovery doctrine or
whether the admission of the evidence was harmless. Plus, Blimline has
alleged damages other than his conviction and sentence. By failing to brief the
Heck issue, the Government has provided no insight here.
      On this record (and keeping in mind what Blimline must demonstrate in
the district court to survive summary dismissal), the district court erred by
dismissing Blimline’s Bivens suit based on Heck. See Bell Atl. Corp., 550 U.S.
at 555; In re Katrina Canal Breaches Litig., 495 F.3d at 205. Perhaps, upon
further development of the record, the district court could determine that the
suit is Heck-barred. But for now, the record is not sufficiently developed to
affirm the summary dismissal on that basis.




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B.    Alternate Grounds for Dismissal
      This court may nevertheless affirm the district court’s judgment on any
basis the record supports. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
The Government suggests three alternate bases for affirming: (1) Blimline’s
claims are all time-barred; (2) Qualified immunity blocks Blimline’s takings
and due process claims; and (3) Failure to comply with the Tucker Act’s and/or
Federal Tort Claims Act’s (FTCA) processes bars his takings and state-law tort
claims. Neither the magistrate judge nor the district court addressed these
grounds for dismissal.
      1. Limitations
      The Government claims Blimline’s causes of action are all subject to a
two-year statute of limitations. See Brown v. Nationsbank Corp., 188 F.3d 579,
589–90 (5th Cir. 1999) (FTCA and Bivens claims); 28 U.S.C. § 2679(b)(1) (state
tort claims properly brought under the FTCA). The Government believes the
causes of action all accrued more than two years before Blimline sued on
September 24, 2015. It cites several possible accrual dates: the December 2009
search and seizure, Blimline’s 2010 indictment and 2012 conviction, Blimline’s
April 2013 sentence reduction, and the September 23, 2013 civil judgment.
Blimline counters that the date of accrual for all his claims is the September
23, 2013 civil judgment and that he placed his complaint in the mail on
September 21, 2015.
      “A cause of action accrues, under federal law, when the plaintiff knows
or has reason to know of the injury which is the basis of the action.” Brown,
188 F.3d at 589–90 (internal quotation marks and citation omitted). “The
plaintiff’s knowledge of the injury depends on two elements: (1) the existence
of the injury; and (2) the connection between the injury and the defendant’s
actions.” Id. at 590. “Dismissal is appropriate if it is clear from the face of the


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complaint that the claims asserted are barred by the applicable statute of
limitations.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
      Although the Government may ultimately be correct, it is currently not
clear from the face of Blimline’s complaint if some or all of the claims are time-
barred. If Blimline is correct that his cause of action accrued when the civil
judgment was entered against him on September 23, 2013—one of the
Government’s potential accrual dates—at least some of his claims are not time-
barred. Blimline was incarcerated when he submitted his Bivens complaint.
So, he receives the benefit of the prison mailbox rule. See Causey v. Cain, 450
F.3d 601, 604 (5th Cir. 2006); Cooper v. Brookshire, 70 F.3d 377, 378–81 (5th
Cir. 1995) (applying prison mailbox rule in civil rights case). Given that
Blimline states he mailed the document before the two-year limitations period
had run, it is questionable on this record whether his claims are time-barred.
      2. Qualified Immunity, Tucker Act, and FTCA
      The Government assumes Blimline has failed to allege facts in his
complaint which could overcome qualified immunity. As for Blimline’s alleged
noncompliance with the Tucker Act and the FTCA, the Government again
relies on Blimline’s failure to allege facts that would demonstrate that he
exhausted the remedies those subsections provide. Generally, a district court
must not dismiss a pro se litigant’s complaint for failure to state a claim unless
it has given the litigant an opportunity to develop the facts and amend his
complaint to remedy the deficiencies. Eason v. Thaler, 14 F.3d 8, 9–10 (5th
Cir.1994). Blimline did not have such an opportunity in this case because the
magistrate judge and district court did not address this ground for dismissal.
While the magistrate judge did state that Blimline was not permitted the
opportunity to amend his complaint because such amendment would be futile,
this conclusion was premised on the magistrate judge’s conclusion that


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Blimline’s claims were Heck-barred, not because Blimline’s claims would fail
on qualified immunity, Tucker Act, or FTCA grounds.

                               IV. CONCLUSION
      In light of this, the Government’s alternate grounds for affirmance are
insufficient on this record. Accordingly, we VACATE and REMAND to the
district court for further proceedings.




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