                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3037
                         ___________________________

                                  LaFrance Colbert

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

Monticello, Arkansas, City of, a public body corporate and police; Ricky Fleming,
in his individual and official capacity as police officer for the City of Monticello,
Arkansas; Steven Stain, in his individual and official capacity as police officer for
  the City of Monticello, Arkansas; Ray Singleton, in his individual and official
capacity as police officer for the City of Monticello, Arkansas; B. Johnson, in his
    individual and official capacity as police officer for the City of Monticello,
 Arkansas; Clayton Moss, in his individual and official capacity as police officer
                        for the City of Monticello, Arkansas

                             lllllllllllllllllllll Defendants

  Jeremy Chapman, in his individual and official capacity as Deputy Sheriff for
                           Drew County, Arkansas

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                          Submitted: December 11, 2014
                            Filed: December 30, 2014
                                   [Published]
                                  ____________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
                       ____________

PER CURIAM.

      A state court found LaFrance L. Colbert guilty of disorderly conduct and
refusal to submit to arrest (a lesser included offense of resisting arrest). Colbert
alleges that in a traffic court: deputy sheriff Jeremy Chapman beckoned him to a
group of officers and loudly said, “Don’t be eyeballing my officers”; when Colbert
said he was not eyeballing them, an officer grabbed Colbert and told him to “shut
up”; and, when Colbert told that officer to let go, the officers handcuffed him, threw
him against a wall (causing his nose to bleed), threw him to the floor, tased him twice,
“hog tied” him, and dragged him from the courtroom.

      Colbert sued the officers under 42 U.S.C. § 1983, alleging unreasonable seizure
and excessive force. The district court dismissed Colbert’s claims against Chapman
under Heck v. Humphrey, 512 U.S. 477 (1994), and denied his motion to reconsider.
Colbert appeals the dismissal only of his excessive-force claim. Having jurisdiction
under 28 U.S.C. § 1291, this court reverses.

     This court reviews de novo the dismissal of a claim under Heck. See Entzi v.
Redmann, 485 F.3d 998, 1003 (8th Cir. 2007). In Heck, the Supreme Court said:

      [W]hen a state prisoner seeks damages in a § 1983 suit, the district court
      must consider whether a judgment in favor of the plaintiff would
      necessarily imply the invalidity of his conviction or sentence; if it
      would, the complaint must be dismissed unless the plaintiff can
      demonstrate that the conviction or sentence has already been
      invalidated. But if the district court determines that the plaintiff’s
      action, even if successful, will not demonstrate the invalidity of any
      outstanding criminal judgment against the plaintiff, the action should be
      allowed to proceed, in the absence of some other bar to the suit.

                                          -2-
512 U.S. at 487. A finding that Chapman used excessive force would not necessarily
imply the invalidity of Colbert’s convictions. “[T]here is no inherent conflict
between a conviction for resisting arrest or harassment of a police officer and a
finding that the police officers used excessive force in effectuating the arrest.”
Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir. 2000). See also Hadley v. Gutierrez,
526 F.3d 1324, 1331 (11th Cir. 2008) (“The jury is free to . . . believe that [plaintiff]
was nonetheless punched at a time when he was not resisting. Under that version of
facts . . . there is no Heck bar.”); Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008)
(“[A] claim that excessive force occurred after the arrestee has ceased his or her
resistance would not necessarily imply the invalidity of a conviction for the earlier
resistance.”); VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006) (“Were we to
uphold the application of Heck in this case, it would imply that once a person resists
law enforcement, he has invited the police to inflict any reaction or retribution they
choose, while forfeiting the right to sue for damages.”); Huey v. Stine, 230 F.3d 226,
230 (6th Cir. 2000) (“In general, the federal courts hold that Eighth Amendment
claims do not run afoul of Heck because the question of the degree of force used by
a police or corrections officer is analytically distinct from the question whether the
plaintiff violated the law.”), cited by Henson v. Brownlee, 2 Fed. Appx. 635, 637 (8th
Cir. 2001) (unpublished); Martinez v. City of Albuquerque, 184 F.3d 1123, 1127
(10th Cir. 1999) (“The state court’s finding that Martinez resisted a lawful arrest . .
. may coexist with a finding that the police officers used excessive force to subdue
him.”); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997) (“Nelson charges
that Jashurek effectuated a lawful arrest in an unlawful manner. Accordingly . . . we
do not see why a judgment in his favor would throw the validity of his conviction into
doubt.”).

       Chapman asks this court to affirm on a different ground, that Colbert failed to
state a claim. See Fed. R. Civ. P. 12(b)(6). Chapman did not present this argument
to the district court, and this court declines to rule on it. See Singleton v. Wulff, 428
U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved

                                          -3-
for the first time on appeal is one left primarily to the discretion of the courts of
appeals, to be exercised on the facts of individual cases.”).

                                    *******

      The judgment is reversed and the case remanded for proceedings consistent
with this opinion.
                     ______________________________




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