               Case: 16-15040     Date Filed: 04/23/2018   Page: 1 of 9


                                                                          [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 16-15040
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 1:15-cv-22910-UU


KIRK DIXON,

                                                                Plaintiff – Appellant,

                                        versus

CAPTAIN JAMES HODGES,
Everglades Correctional Institution, et al.,

                                                                          Defendants,

NATHAN S. POLLOCK,
Everglades Correctional Institution,

                                                              Defendant – Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (April 23, 2018)
               Case: 16-15040     Date Filed: 04/23/2018    Page: 2 of 9


Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Kirk Dixon, a Florida prisoner proceeding pro se, appeals from the District

Court’s grant of a motion to dismiss his civil rights complaint (filed pursuant to 42

U.S.C. § 1983) for lack of subject matter jurisdiction under Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364 (1994). The Heck rule, as extended by Edwards v.

Balisok, strips a district court of jurisdiction in a § 1983 suit brought by an

imprisoned plaintiff “if ‘a judgment in favor of the plaintiff would necessarily

imply the invalidity’” of a punishment that “deprive[d] him of good-time credits,”

also referred to as gain time. 520 U.S. 641, 643, 117 S. Ct. 1584, 1586 (1997)

(quoting Heck, 512 U.S. at 487, 114 S. Ct. at 2372).

      Dixon was punished and lost gain time, but his § 1983 suit, if successful,

would not necessarily imply that his punishment is invalid. Because success in

this § 1983 suit would not necessarily be “logically contradictory” with the

underlying punishment, this suit is not barred by Heck. See Dyer v. Lee, 488 F.3d

876, 884 (11th Cir. 2007). The District Court erred by concluding otherwise and

dismissing the complaint. We accordingly vacate the judgment and remand.

                                           I.

      A district court’s dismissal for lack of subject matter jurisdiction presents a

legal question that we review de novo. Miccosukee Tribe of Indians v. U.S. Army

                                           2
              Case: 16-15040     Date Filed: 04/23/2018   Page: 3 of 9


Corps of Eng’rs, 619 F.3d 1289, 1296 (11th Cir. 2010). On review, the allegations

in the complaint must be accepted as true and construed in the light most favorable

to the plaintiff. Maradiaga v. United States, 679 F.3d 1286, 1291 (11th Cir. 2012).

We also construe pro se pleadings liberally. Timson v. Sampson, 518 F.3d 870,

874 (11th Cir. 2008). Therefore, we state the facts as alleged in Dixon’s liberally-

construed complaint, viewed in the light most favorable to him.

                                         II.

      In 2013, prison officials at Everglades Correctional Institution in Miami

assigned an elderly, handicapped inmate to the top bunk in Dixon’s cell. This

inmate was unable to reach the top bunk due to his disability. Dixon went to the

officers’ station to discuss this issue on August 12, 2013. Officer Nathan Pollock

was present, among others.

      Dixon tried to explain the problem to the officers, but they refused to listen

to him. As Dixon continued to speak, Pollock began to shout at him. Dixon asked

Pollock why he was shouting, and Pollock leapt out of his chair, approached Dixon

threateningly, and told him to return to his assigned dormitory. Dixon turned to

leave. After that, Pollock stepped on his right heel, tripping him. Pollock then

picked Dixon up from the cement floor and slammed him down into it. Pollock

proceeded to kick Dixon in his face and body for about two minutes before other

officers approached and handcuffed Dixon. Dixon suffered serious injuries as a

                                          3
                Case: 16-15040        Date Filed: 04/23/2018       Page: 4 of 9


result. His shirt was soaked in blood and his face became unrecognizable from

swelling. He fractured his ribs, bruised his sternum, lost eyesight and was unable

to walk for a time, and suffered a concussion.

       Pollock’s version of events differs significantly from Dixon’s. Pollock

claims that Dixon ignored several orders to leave the officers’ station. After Dixon

finally did turn to leave, he made a fist with his hand and turned back to lunge at

Pollock. Pollock contends that he used appropriate force in a manner necessary to

subdue Dixon and that no medical professional ever found evidence of any trauma

or injury suffered by Dixon as a result of this incident.1 On August 23, 2013,

Dixon received a disciplinary report including one charge of Battery or Attempted

Battery on a Correctional Officer. He was found guilty, and his punishment

included a loss of gain time.

       On August 4, 2015, Dixon filed a lawsuit pursuant to 42 U.S.C § 1983

alleging, inter alia, that Pollock used excessive force against him on August 12,

2013, in violation of his constitutional rights. Pollock moved to dismiss the

complaint for a failure to exhaust administrative remedies and for lack of subject

matter jurisdiction under Heck, and Pollock further moved for summary judgment.

The Magistrate Judge issued a Report and Recommendation (“R&R”)


       1
         Indeed, Dixon has not provided evidence at this stage of a medical professional
verifying any of the injuries in his complaint, other than some alleged unverified hearsay
statements from a prison nurse.
                                                4
              Case: 16-15040     Date Filed: 04/23/2018    Page: 5 of 9


recommending that Pollock’s motion to dismiss be granted on the basis of Heck

(but that it was due to be denied on exhaustion grounds) and recommending that

Pollock’s motion for summary judgment be denied as moot. The District Court

adopted the R&R and dismissed the complaint, and Dixon filed this appeal.

                                         III.

      “[A]s long as it is possible that a § 1983 suit would not negate the

underlying [punishment], then the suit is not Heck-barred.” Dyer, 488 F.3d at 879–

80. Heck bars a § 1983 suit only when it is a “logical necessity” that judgment for

the plaintiff in that suit would contradict the existing punishment. Id. at 879. So

long as “there would still exist a construction of the facts that would allow the

underlying [punishment] to stand,” a § 1983 suit may proceed. Id. at 880.

      Pollock admits, in an accurate statement of the law, that “[i]t is possible for

an excessive-force action and a battery conviction to coexist without running afoul

of Heck.” Appellee Br. at 5; see also Willingham v. Loughnan, 261 F.3d 1178,

1183 (11th Cir. 2001), rev’d on other grounds, 537 U.S. 801, 123 S. Ct. 68 (2002).

A prisoner may be punished for battery on a prison guard, and that prison guard

may be held liable for using excessive force on the prisoner in subduing him; both

may be true. At first glance, then, it appears Heck is inapposite.

      Pollock contends that Heck nonetheless applies here because Dixon alleges

that he did not lunge at Pollock before Pollock used force against him. Because

                                          5
                Case: 16-15040        Date Filed: 04/23/2018        Page: 6 of 9


Dixon’s disciplinary punishment is grounded in those facts, and Dixon is alleging

contrary facts in his § 1983 complaint, Pollock claims that Heck should bar the

suit.

        We have recognized that, in some cases, Heck may bar a prisoner’s suit “if

his § 1983 complaint makes specific factual allegations that are inconsistent with

the facts upon which his [punishment was] based.” Dyer, 488 F.3d at 883 n.9. This

footnote in Dyer, relied upon by Pollock, is a recitation of the inconsistent-factual-

allegations rule from McCann v. Neilsen, 466 F.3d 619 (7th Cir. 2006).

        McCann is a Seventh Circuit decision that reversed a district court’s

dismissal of a § 1983 complaint under Heck. 2 It approvingly discusses the


        2
          In that case, the police sought McCann for allegations of violence against his estranged
girlfriend. McCann, 466 F.3d at 620. A police deputy encountered McCann walking along
some railroad tracks. Id. McCann began to run from the deputy, then “stopped, turned,
produced a ‘spike-type’ weapon from his pocket, and began walking directly toward the deputy.”
Id. The deputy commanded him to stop, but McCann continued to advance. Id. The deputy
fired a single shot that struck McCann. Id. McCann was later convicted of aggravated assault on
the deputy. Id.
       McCann then brought a § 1983 suit against the deputy. In his complaint, he made the
following allegations:
               5. On November 9, 2001, the plaintiff was lawfully present at the
               approximate location of Ridgefield Road and Country Club Drive
               at or about the railroad tracks in Ridgefield, in the Northern
               District of Illinois.
               6. At the time and date aforesaid, the plaintiff did not pose a threat
               of violence or great bodily harm to the defendant, was not in the
               commission of a forcible felony nor was he attempting to resist,
               escape or defeat an arrest otherwise [sic] acting so as to justify the
               use of deadly force by the defendant.
               7. That on the date and time aforesaid, the defendant, without
               justification, shot the plaintiff causing serious injury.

                                                 6
                 Case: 16-15040       Date Filed: 04/23/2018        Page: 7 of 9


inconsistent-factual-allegations rule, an “additional gloss on the Heck analysis,”

only in the context of one case: Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.

2003). McCann, 466 F.3d at 621.

       In Okoro, the plaintiff brought a § 1983 suit following his conviction of a

drug crime after heroin was discovered in a search of his home. Id. at 622. His

defense in the criminal drug case was that he sold gems, not heroin, and that police

officers had stolen his gems during their search. Id. After his drug conviction, he

alleged in his § 1983 complaint that the police officers who searched his home had

violated his civil rights by illegally seizing his gems. Id. The Seventh Circuit

determined that the plaintiff’s suit was barred under Heck because his § 1983 suit

had the effect of “challenging the validity of the guilty verdict by denying that

there were any drugs and arguing that he was framed.” Okoro, 324 F.3d at 490.




Id. The district court determined that Heck barred McCann’s suit because he “had voluntarily
steered the action into Heck territory by making specific factual allegations in the complaint that
were inconsistent with the facts upon which” his conviction was based. Id. at 621. Because
McCann chose to plead that he did not pose a threat of violence, that he did not act in a manner
that justified the use of deadly force, and that the deputy shot him without justification, the
district court determined that he created a complaint impossibly inconsistent with his assault
conviction, and Heck barred it. Id.
        The Seventh Circuit reversed. It determined that the district court did not give McCann
“the benefit of all reasonable inferences” and did not appropriately view his complaint in the
light most favorable to him. Id. at 622. Had the court done so, it could have read the complaint
as a claim that McCann “never posed a threat of violence, attempted escape, or resisted arrest to
a degree that would have justified the use of deadly force as a response.” Id. This claim, when
so construed, was not necessarily inconsistent with McCann’s assault conviction. Heck did not
bar the § 1983 suit.

                                                 7
                Case: 16-15040       Date Filed: 04/23/2018       Page: 8 of 9


         To the extent we adopted the inconsistent-factual-allegation gloss on Heck in

our Dyer decision, we agree with the Seventh Circuit that it is only apposite in the

narrow category of cases like Okoro: where the allegation in the § 1983 complaint

is a specific one that both necessarily implies the earlier decision is invalid and is

necessary to the success of the § 1983 suit itself. The “logical necessity” of

conflict between the punishment and the § 1983 suit, itself “at the heart of the Heck

opinion,” is present only in these circumstances. Dyer, 488 F.3d at 879. When a

plaintiff alleges a fact that, if true, would conflict with the earlier punishment, but

that fact is not necessary to the success of his § 1983 suit, the Heck bar does not

apply.

         Such is the case here. The gravamen of Dixon’s § 1983 complaint is that

Pollock used excessive force against him. The success of this claim is not

necessarily dependent on whether Dixon lunged at Pollock or not. His disciplinary

punishment, of course, establishes that he did. 3 But that factual finding is not

determinative of whether Pollock used excessive force against Dixon. It is

logically possible both that Dixon lunged at Pollock and that Pollock used

excessive force against him. Because “there is a version of the facts which would



         3
         At this stage, a court may determine that Dixon does not dispute this fact in his
complaint. Construing Dixon’s complaint in the light most favorable to him, it is possible to
read the Statement of Facts as silent on what transpired between the time he turned to walk away
from the officers’ station and the time that Pollock began to use force against him. Pollock
contends that it was during this period that Dixon formed a fist with his hand and lunged at him.
                                                8
              Case: 16-15040    Date Filed: 04/23/2018   Page: 9 of 9


allow the [punishment] to stand” alongside a successful § 1983 suit, Heck does not

control. Id. at 883.

                                        IV.

      We conclude that Heck and its progeny, including Balisok, do not bar this

lawsuit. On the contrary, Dyer requires that the suit be allowed to proceed through

the threshold gates of Heck. We therefore vacate the judgment of the District

Court and remand for further proceedings not inconsistent with this opinion.

      VACATED AND REMANDED.




                                         9
