           Case: 11-15870    Date Filed: 07/13/2012        Page: 1 of 6


                                                                 [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-15870
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:11-cv-01158-RBD-TEM



JERRY DAVIS,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellant,

                                     versus

OFFICER C. HODGES,
OFFICER J. OLIVE,
OFFICER J. THURMAN,
OFFICER M. GRIFFIN,
SERGEANT H. CARRASQUILLIO,
in their individual capacities,

                            llllllllllllllllllllllllllllllllllllllllDefendants - Appellees.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________
                             (July 13, 2012)
                  Case: 11-15870         Date Filed: 07/13/2012         Page: 2 of 6



Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

        Jerry Davis, a state prisoner proceeding pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 claim for failure to state a claim upon which

relief may be granted.

                                                    I.

        In his complaint, Davis alleged that prison officers violated his Eighth

Amendment rights when they conspired to have another inmate assault him,

incited the other inmate to assault him, and then allowed the assault to occur

without intervening to protect him. Davis sought compensatory damages. As a

result of the altercation with the other inmate, the Florida Department of

Corrections charged Davis and found him guilty of a fighting infraction for which

he lost thirty days of gain-time credit. Davis did not challenge the loss of his gain

time in his § 1983 suit.

        The district court dismissed Davis’s complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii)1 for failure to state a claim on which relief may be granted.



        1
          Section 1915(e)(2)(B)(ii) provides that a district court “shall dismiss the case at any
time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief
may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

                                                    2
              Case: 11-15870     Date Filed: 07/13/2012   Page: 3 of 6

The court determined that the claim was barred under Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364 (1994), which precludes § 1983 claims that necessarily

challenge the validity of an underlying conviction. See id. at 486–87, 114 S. Ct. at

2372; see also Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 1588

(1997). On appeal, Davis argues that his complaint is not barred under Heck

because success on his claims would not invalidate his disciplinary conviction or

loss of gain time.

                                        II.

      We review de novo a district court’s dismissal for failure to state a claim

under § 1915(e)(2)(B)(ii), taking the allegations in the complaint as true, Hughes

v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003), and liberally construing pro se

pleadings, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

                                        III.

      In Heck, the Supreme Court held that if a judgment in favor of the plaintiff

on his § 1983 claim for money damages “would necessarily imply the invalidity of

his conviction or sentence,” the district court must dismiss the complaint, unless

the conviction or sentence has already been invalidated. 512 U.S. at 487, 114

S. Ct. at 2372. The Court later extended this bar to prison disciplinary judgments

that result in the deprivation of good-time credits. See Edwards, 520 U.S. at

                                         3
              Case: 11-15870      Date Filed: 07/13/2012   Page: 4 of 6

646–48, 117 S. Ct. at 1588–89. However, Heck only applies to prison disciplinary

determinations if a prisoner’s § 1983 claim would necessarily affect the fact or

duration of his confinement. See Wilkinson v. Dotson, 544 U.S. 74, 79, 81–82,

125 S. Ct. 1242, 1246–48 (2005); Muhammad v. Close, 540 U.S. 749, 754, 124

S. Ct. 1303, 1306 (2004). Thus, as we have made clear, the same facts underlying

a conviction, or in this case, a disciplinary judgment, can also give rise to a § 1983

claim without implicating Heck. Dyer v. Lee, 488 F.3d 876, 879–80 (11th Cir.

2007) (“[A]s long as it is possible that a § 1983 suit would not negate the

underlying conviction, then the suit is not Heck-barred.”).

      In his § 1983 claim, Davis alleged Eighth Amendment violations based on

the prison officers’ purported conspiracy to have another inmate assault him,

incitement of that inmate to assault him, and allowing the inmate to assault him.

We have recognized that an inmate “has a constitutional right to be protected . . .

from physical assault by other inmates,” Zatler v. Wainwright, 802 F.2d 397, 400

(11th Cir. 1996), and that “[a] prison official’s deliberate indifference to a

substantial risk of serious harm to an inmate violates the Eighth Amendment,”

Carter v. Galloway, 352 F.3d 1346, 1349 (11th Cir. 2003) (quotation marks

omitted). To be deliberately indifferent, a prison official must be “subjectively

aware of the substantial risk of serious harm” and fail “to respond reasonably to

                                           4
              Case: 11-15870     Date Filed: 07/13/2012   Page: 5 of 6

the risk.” Id. (quotation marks and alterations omitted). To prove conspiracy, a

plaintiff must demonstrate that the defendants reached an understanding to violate

his constitutional rights. Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir.

2010).

      We conclude that the Eighth Amendment violations Davis alleged do not

necessarily imply that the disciplinary judgment revoking his good-time credits is

invalid. See Muhammad, 540 U.S. at 754, 124 S. Ct. at 1306. The prison

disciplinary report indicates that Davis committed the infraction of fighting with

another inmate. A prison officer witnessed Davis involved with another inmate

“in a physical altercation wherein they were head butting each other and pushing

each other against the walls.” Davis’s Eighth Amendment claims do not

necessarily invalidate the Florida Department of Corrections’s determination that

Davis was guilty of fighting with the other inmate.

      The defendant officers argue that Heck and Edwards necessarily bar Davis’s

claim, because his version of the facts are “at odds with the prison disciplinary

convictions.” Specifically, Davis portrays himself as the victim of aggression,

whereas the disciplinary report purportedly found Davis to be a “mutual




                                          5
                Case: 11-15870        Date Filed: 07/13/2012       Page: 6 of 6

aggressor.”2 However, the disciplinary report’s finding that Davis and the other

inmate were “head butting each other and pushing each other against the walls”

does not necessarily contradict or even undermine Davis’s claims that prison

officers conspired to put him in that situation, that they incited the other inmate to

attack him, and that they failed to intervene. The disciplinary report does not

otherwise describe the elements of the infraction, so we cannot say that Davis’s

allegations would necessarily invalidate the revocation of his gain-time credits.

See Muhammad, 540 U.S. at 754–55, 124 S. Ct. at 1306.

                                               IV.

       For these reasons, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.




       2
         This is how the defendant officers characterize Davis’s role in the fight. The report
does not use this term.

                                                6
