              Case: 16-10176     Date Filed: 03/08/2017   Page: 1 of 10


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10176
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:15-cv-24012-PCH



JOSEPH HARVEY,

                                                                 Plaintiff-Appellant,

                                        versus

UNITED STATES OF AMERICA,
CLAUDIA ANGEL,
individually and in official capacity as Officer,
United States Postal Service,
JAN SMITH,
individually, and in official capacity, United States
Public Defender’s Office,
LEONARDO SPITOLE,
individually, and in official capacity, United States
Public Defender’s Office,
THOMAS AUSTIN WATTS-FITZGERALD,
individually, and in official capacity, United States
Attorney’s Office, et al.,

                                                              Defendants-Appellees.
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                             ________________________

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

                                    (March 8, 2017)

Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

       Joseph Harvey, a pro se prisoner proceeding in forma pauperis, appeals the

dismissal of his Bivens action.1 The district court dismissed the action as frivolous

and for failing to state a claim upon which relief could be granted under 28 U.S.C.

§§ 1915(e)(2)(B)(i) and (ii). On appeal, Harvey argues the district court erred in

relying on Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), to dismiss his

claims for illegal search and seizure under the Fourth Amendment and for abuse of

process. After careful review, we hold the district court erred in dismissing these

claims. We therefore reverse.

                                            I.

       Harvey, a federal prisoner, brought a Bivens action against several federal

employees on October 26, 2015. In his complaint, Harvey alleged the following

facts: Harvey was arrested on October 5, 2011. On October 22, while Harvey was

in jail, a criminal investigator for the United States Postal Service named Claudia

       1
         Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91
S. Ct. 1999 (1971).
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Angel called the Public Storage facility where Harvey had a rental storage unit.

She told the facility that Harvey was under federal investigation and had been

arrested. She asked the storage facility to prevent anyone from accessing Harvey’s

unit because of its interest to the government. She also told the storage facility she

would provide the documents necessary to support her request within a week. In

response, the storage unit employee disabled the gate code and locked Harvey’s

unit. Angel never provided the promised documents. On the same day Angel

called, Harvey’s daughter contacted the storage facility with Harvey on the line.

Harvey explained that he needed his daughter to retrieve some items from the unit,

and requested the lock be cut. The storage facility denied his request.

      When Harvey next contacted the storage unit on December 26, 2011, he was

informed that the items stored within the unit would be auctioned off due to non-

payment of the rental fees. Harvey responded that he would send the facility a

check to cover any past due amounts. He then attempted to have two checks sent

from his commissary account to the storage facility. They were never processed—

despite the fact that other checks Harvey sent to other recipients during this time

were successfully transmitted. Neither did the prison notify Harvey that the checks

had not issued, although prison policy requires that notice be given to him.

      Based on this sequence of events, Harvey claims that Angel and the federal

prosecutor on his case, Thomas Watts-Fitzgerald, conspired to prevent his checks


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from being sent to the storage facility in order to cause his account to default. He

argues they did this because they lacked probable cause to lawfully seize the items

in his storage unit. Thus, they planned to purchase the items at the auction

following Harvey’s default instead. On January 17, 2012, the items were

auctioned, and came into the possession of the postal inspectors.

      Harvey’s defense attorneys (two Assistant Federal Public Defenders named

Jan Smith and Leonardo Spitale) informed him that the government had prevented

his checks from being mailed to the storage facility to satisfy his outstanding

balance at the storage facility. However, when Harvey asked whether they

intended to do anything about the government’s actions, they responded that they

would not file any pre-trial motions, seek discovery to reveal the government’s

actions, or otherwise litigate the issue.

      In his complaint, Harvey also alleged that an employee with the Bureau of

Prisons (“BOP”) Trust Fund Department and the Unit Counselor at the Federal

Detention Center in Miami, Florida both failed to follow BOP procedures for

issuing a check from his inmate account fund. He also alleges that Elaine Soma, a

United States Court Reporter, conspired with the government to destroy the grand

jury transcripts from his prosecution. Harvey brought his Bivens action against all

of these federal employees, asserting claims of negligence, illegal search and

seizure, conspiracy, due process, and abuse of process. He sought declaratory


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relief and compensatory, punitive, and treble damages.

       Because Harvey brought his action in forma pauperis, the district court could

dismiss his case “at any time” pursuant to 28 U.S.C. § 1915(e)(2) if it determined

that his action was frivolous or failed to state a claim. See 28 U.S.C. §§

1915(e)(2)(B)(i) & (ii). Harvey’s case was assigned to a magistrate judge, who

recommended that Harvey’s complaint be dismissed with prejudice for failing to

state a claim. 2 The magistrate judge reasoned that Heck bars Harvey’s civil rights

action so long as Harvey’s underlying conviction remains valid. Specifically, the

magistrate judge said Heck requires dismissal of any claim that, if successful,

“would necessarily imply the invalidity of [the plaintiff’s] conviction or sentence,”

unless the conviction has already been invalidated. The magistrate judge stated

that Harvey’s Bivens action “challenges the constitutionality of his conviction and

resultant confinement,” so any ruling in Harvey’s favor would necessarily imply

the invalidity of Harvey’s conviction. As a result, he recommended that Harvey’s

complaint be dismissed under Heck.

       Harvey filed objections to the magistrate judge’s report and

recommendation. He argued that Heck does not bar either his abuse of process

claim or his Fourth Amendment illegal search and seizure claim. Over these


       2
        Before reaching this conclusion, the magistrate judge took judicial notice of Harvey’s
unsuccessful postconviction challenge to his conviction and sentence pursuant to 28 U.S.C.
§ 2255. See Harvey v. United States, No. 1:14-cv-21939-JLK (S.D. Fla.).
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objections, the district court adopted the magistrate judge’s report and

recommendation as the opinion of the court.

                                          II.

      On appeal, Harvey says the district court was wrong to dismiss the entirety

of his Bivens action as frivolous and for failing to state a claim because his abuse

of process and Fourth Amendment claims are not barred by Heck. The standard

for determining whether a complaint states a claim upon which relief may be

granted is the same whether under 28 U.S.C. § 1915(e)(2)(B)(ii) or Federal Rule of

Civil Procedure 12(b)(6). See Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir.

1997). A district court’s sua sponte dismissal for failure to state a claim is

reviewed de novo, viewing the allegations in the complaint as true. Hughes v.

Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003).

      In Bivens, the Supreme Court held that victims of a constitutional violation

by a federal official or someone acting under color of federal law may recover

damages against that person despite the absence of any statute conferring such a

right of action. 403 U.S. at 397, 91 S. Ct. at 2005. Plaintiffs may pursue both

Fourth Amendment and Due Process claims for damages under Bivens. 403 U.S.

at 392, 91 S. Ct. at 2002; Davis v. Passman, 442 U.S. 228, 243–44, 99 S. Ct. 2264,

2276 (1979). Important to our analysis here, courts generally apply 42 U.S.C.

§ 1983 law to Bivens cases. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.


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1995).

      Under Heck, a § 1983 plaintiff seeking to 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” must first

prove that his conviction or sentence has been invalidated. 512 U.S. at 486–87,

114 S. Ct. at 2372. Thus, a § 1983 damages suit is due to be dismissed if “a

judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence,” unless the plaintiff’s conviction or sentence has been

invalidated. Heck, 512 U.S. at 487, 114 S. Ct. at 2372. But at the same time, if the

plaintiff’s action would “not demonstrate the invalidity of any outstanding criminal

judgment,” then it should not be dismissed. Id. (emphasis omitted). “[A]s long as

it is possible that a § 1983 suit would not negate the underlying conviction, then

the suit is not Heck-barred.” Dyer v. Lee, 488 F.3d 876, 879–80 (11th Cir. 2007).

      In a footnote in Heck, the Supreme Court addressed a suit for damages

arising out of an allegedly unreasonable search and noted that this type of suit may

proceed even if evidence from the challenged search was introduced in the

criminal trial that resulted in the plaintiff’s conviction. 512 U.S. at 487 n.7, 114 S.

Ct. at 2372 n.7. The Court reasoned that, “[b]ecause of doctrines like independent

source and inevitable discovery, and especially harmless error, such a § 1983

action, even if successful, would not necessarily imply that the plaintiff’s


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conviction was unlawful.” Id. (citations omitted). In another footnote, the Heck

Court recognized that an abuse of process claim under § 1983 also does not

necessarily imply that the plaintiff’s conviction is invalid. Id. at 486 n.5, 114 S. Ct.

at 2372 n.5. The Court said the “gravamen of [abuse of process] is not the

wrongfulness of the prosecution, but some extortionate perversion of lawfully

initiated process to illegitimate ends.” Id.

      In keeping with this language from Heck, this court has recognized that

Heck does not necessarily bar § 1983 damages actions for Fourth Amendment

violations because illegal searches may be followed by valid convictions. In other

words, a successful § 1983 action for search and seizure violations does not

necessarily imply that a conviction is invalid. Hughes, 350 F.3d at 1160. And we

have recognized that in a § 1983 action, the Fourth Amendment can serve as the

basis for malicious prosecution claims, which are very similar to abuse of process

claims. Uboh v. Reno, 141 F.3d 1000, 1003 & n.4 (11th Cir. 1998). To determine

whether a Fourth Amendment claim necessarily implies that the plaintiff’s

conviction was unlawful, the court must “look both to the claims raised under

§ 1983 and to the specific offenses for which the § 1983 claimant was convicted.”

Hughes, 350 F.3d at 1160 n.2. When the circumstances surrounding a conviction

cannot be discerned from the record, it is impossible for a court to determine

whether a successful § 1983 damages action for unreasonable search and seizure


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would necessarily imply that the conviction is invalid. Id. at 1161. Thus, any

determination that such a § 1983 damages action is barred by Heck is error. Id.

Finally, this court held in Abella that the Heck rule applies to Bivens actions. 63

F.3d at 1065.

      Here, neither the magistrate judge nor the district court made any findings

about or provided any reasoning for why Harvey’s abuse of process and illegal

search and seizure claims would necessarily imply that his underlying conviction

was invalid. We therefore cannot determine on this record whether those claims

are barred by Heck. Hughes, 350 F.3d at 1167. Indeed, the adjudication of

Harvey’s postconviction challenge to his conviction and sentence, of which the

magistrate judge took judicial notice, seems to weigh in Harvey’s favor on this

point. One of Harvey’s postconviction arguments was that his lawyer was

ineffective for failing to suppress the evidence obtained from the storage facility.

See Harvey v. United States, No. 1:14-cv-21939-JLK, Doc. 25 at 3 (S.D. Fla. June

17, 2015). The magistrate judge in Harvey’s postconviction challenge—who is the

same magistrate judge in this Bivens challenge—rejected Harvey’s claim, stating

“it is hardly likely that the jury’s verdicts of guilt turned on the evidence contained

in the storage unit. The other evidence of [Harvey’s] guilt overwhelmingly

supported the jury’s guilty verdicts.” Id. at 36. Thus, Harvey’s abuse of process

and illegal search and seizure claims may not imply that his underlying conviction


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is invalid. We therefore reverse and remand to the district court for additional

consideration of Harvey’s abuse of process and unreasonable search and seizure

claims.

      REVERSED AND REMANDED.




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