     Case: 10-10274     Document: 00511700498         Page: 1     Date Filed: 12/19/2011




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

                                                                            FILED
                                                                        December 19, 2011
                                     No. 10-10274
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BRENT W. MYERS,

                                                  Plaintiff-Appellant

v.

M. SWINDLE, Dallas Policeman; S. TOMIYAMA, Dallas Policeman; JOHN
DOE, White Male Dallas Policeman; JOHN DOE, Black Male Dallas Policeman,
D. KUNKLE, Dallas Police Chief; JANE DOE, White Female Dallas Jail Medic;
JOHN DOE, Black Male Dallas Policeman,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:09-CV-2292


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Brent W. Myers, Texas prisoner # 1513909, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint arising from his arrest in April 2007
and his conviction in October 2007 of assault on a public servant. In his
complaint, Myers alleged claims of false arrest, excessive force, denial of medical
care, and false imprisonment arising from his interaction with Dallas police

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-10274   Document: 00511700498     Page: 2   Date Filed: 12/19/2011

                                 No. 10-10274

officers and jail personnel at the time of his arrest.       The district court
determined that these claims were barred by the applicable two-year statute of
limitations and that equitable tolling was not warranted. Myers also alleged
claims of malicious prosecution and wrongful conviction, which the district court
dismissed as barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994).
      The district court dismissed the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii). Such a dismissal is subject to de novo review by this court.
Green v. Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). Myers challenges the
district court’s ruling solely by arguing that the district court erred when it
determined that his claims were barred by the statute of limitations. He fails
to address the district court’s determination that his claims of malicious
prosecution and wrongful conviction were Heck-barred.         He has therefore
abandoned any such challenge. See United States v. Scroggins, 599 F.3d 433,
446-47 (5th Cir. 2010), cert. denied, 131 S. Ct. 158 (2010); FED. R. APP. P.
28(a)(9). In any event, a judgment in favor of Myers regarding his claims of
malicious prosecution and wrongful conviction would imply that his conviction
is invalid. As such, the district court did not err in determining that Myers’s
claims for malicious prosecution and wrongful conviction are barred by Heck.
See Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995).
      Regarding the limitations issue, Myers contends that he submitted in the
district court a log from the prison mail room that demonstrates that he
submitted the complaint in the instant proceeding to prison officials for mailing
within the limitations period. Pursuant to the prison mailbox rule, a prisoner’s
pleading is deemed to have been filed on the date that the pro se prisoner
submits the pleading to prison authorities for mailing. Causey v. Cain, 450 F.3d
601, 604 (5th Cir. 2006) (citing Houston v. Lack, 487 U.S. 266, 270-71 (1988)).
The prison mailbox rule applies to the filing of § 1983 complaints. Cooper v.
Brookshire, 70 F.3d 377, 378-81 (5th Cir. 1995).



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                                  No. 10-10274

      The mail room log that Myers submitted in response to the magistrate
judge’s sua sponte consideration of the limitations issue indicates that prison
officials mailed legal mail for Myers to the “Clerk, District Court, Northern
District of Texas, 1100 Commerce Street, Dallas, Texas, 75242,” within the
limitations period. The district court did not analyze the import of the log in
light of the prison mailbox rule. Rather, the district court construed Myers’s
argument as a request for equitable tolling. Notwithstanding the district court’s
equitable tolling analysis, if Myers tendered a complaint regarding the claims
in this litigation to prison officials for mailing prior to the expiration of the
limitations period, as the prison mail room log suggests, the district court erred
by dismissing the litigation as barred by the statute of limitations. See Houston,
487 U.S. at 275. Further factual development is necessary to determine the
nature of the pleading that is referenced in the mail room log, as the log does not
describe the pleading that Myers filed and therefore does not establish that
Myers filed a timely complaint in this litigation. In such a case, remand is
appropriate. See Causey, 450 F. 3d at 603 n.4, 607; Stoot v. Cain, 570 F.3d 669,
670-72 (5th Cir. 2009).
      In accordance with the foregoing, the district court’s determination that
Myers’s claims of malicious prosecution and wrongful conviction are Heck-barred
is affirmed. The district court’s determination that Myers’s claims of false
arrest, excessive force, denial of medical care, and false imprisonment are barred
by the statute of limitations is vacated. The case is remanded for further factual
development regarding whether the filing that is unidentified in the prison mail
log was a timely filing of this lawsuit and, if necessary, to consider the substance
of Myers’s claims for relief that were previously dismissed as time barred,
including whether those claims are barred by Heck.
      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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