                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                      FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             October 13, 2006
                            No. 05-16373                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                  D. C. Docket No. 05-22481-CV-FAM

HUNTLEY H. THOMPSON,


                                                          Plaintiff-Appellant,

                                 versus

CHARLES J. CRIST, JR.,
Attorney General,
KATHERINE FERNANDEZ RUNDEL,
Miami-Dade County State Attorney,
TOBY L. WILSON,
MICHAEL HASS,


                                                       Defendants-Appellees.


                      ________________________

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

                          (October 13, 2006)
Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Appellant Huntley Thompson, proceeding pro se, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 civil rights action pursuant to 28 U.S.C. § 1915.

Thompson requested that the district court compel the state of Florida to produce

and allow independent testing of DNA evidence used in his criminal trial. The

magistrate judge’s conclusion that Thompson’s claim was foreclosed by Heck v.

Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L .Ed. 2d 383 (1994), and thus

subject to dismissal for failure to state a claim pursuant to § 1915(e)(2)(B)(ii), was

adopted by the district court. Thompson argues on appeal that the district court

erred because its decision was inconsistent with our opinion in Bradley v. Pryor,

305 F.3d 1287 (11th Cir. 2002).

      We review de novo an appeal from a 28 U.S.C. § 1915(e)(2)(B)(ii) dismissal

for failure to state a claim. Leal v. Georgia Dep’t of Corrections, 254 F.3d 1276,

1278-79 (11th Cir. 2001). Pursuant to 28 U.S.C § 1915, the district court may

dismiss a case filed in forma pauperis at any time if it is frivolous or malicious,

fails to state a claim upon which relief may be granted, or seeks monetary relief

against a defendant who is immune from such relief. 28 U.S.C § 1915(e)(2)(B)(i-

iii). “A complaint should not be dismissed for failure to state a claim unless it



                                           2
appears beyond doubt that the prisoner can prove no set of facts in support of his

claim which would entitle him to relief.” Harmon v. Berry, 728 F.2d 1407, 1409

(11th Cir. 1984). “Pro se pleadings are held to a less stringent standard than

pleadings drafted by attorneys and will, therefore, be liberally construed.”

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

      In Heck, the Supreme Court held that “in order 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, a

§ 1983 plaintiff must prove that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas corpus.” 512 U.S. at 486-87, 114 S. Ct. at 2372. If

this type of action is brought prior to the invalidation of the challenged conviction

or sentence, it must be dismissed. Heck, 512 U.S. at 487, 114 S. Ct. at 2372. Thus,

“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.” Id. However, “if the district

court determines that the plaintiff’s action, even if successful, will not demonstrate



                                           3
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.” Id. at

512 U.S. at 487, 114 S. Ct. at 2372-73. (emphasis in original).

      In Bradley, we held that a § 1983 action seeking only post-conviction access

to DNA evidence used during trial was not barred by Heck because prevailing in

the action and obtaining access to the evidence would not demonstrate or imply

that the prisoner’s underlying conviction was invalid. Bradley, 305 F.3d at 1290.

In fact, allowing access to DNA evidence for testing “necessarily implies nothing

at all about the plaintiff’s conviction.” Id. at 1291. For example, the results of

DNA testing could be “inconclusive,. . .insufficiently exculpatory, or they may

even be inculpatory.” Id. “That these scientific possibilities exist, in and of itself,

suffices to establish that the asserted right of mere access is not a direct, or for that

matter even an indirect, attack on one’s conviction or sentence.” Id. Even if a

plaintiff “is successful in his lawsuit, his conviction and sentence will not be called

into question, since the only thing he will have secured is access to evidence.” Id.

at 1292. Instead, he “would have to initiate an entirely separate action at some

future date, in which he would have to argue for his release upon the basis of a

separate constitutional violation altogether.” Id. at 1291.

      Because Thompson seeks access to DNA evidence used during his trial, and



                                            4
denies that he is challenging his conviction, we conclude that his action is not

barred by Heck. See 512 U.S. 486-87, 114 S. Ct. at 2372; Bradley, 305 F.3d at

1291. Thus, we hold that the district court erred by relying on Heck as grounds for

concluding that Thompson failed to state a claim pursuant to § 1915, and

consequently failing to address whether he sufficiently stated a § 1983 claim.

Accordingly, we reverse the district court’s judgment and remand this matter for

further proceedings to determine whether Thompson’s complaint sufficiently

alleged a § 1983 cause of action.

      REVERSED and REMANDED.




                                          5
