                        NONPRECEDENTIAL DISPOSITION
                         To be cited only in accordance with
                                  Fed. R. App. P. 32.1




              United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                               Submitted August 29, 2013*
                                Decided August 29, 2013

                                          Before



                            RICHARD A. POSNER, Circuit Judge

                            ILANA DIAMOND ROVNER, Circuit Judge

                            JOHN DANIEL TINDER, Circuit Judge

No. 12-2504

GREGORY GORDON,                                    Appeal from the United States District
    Plaintiff-Appellant,                           Court for the Western District of
                                                   Wisconsin.
       v.
                                                   No. 11-cv-22-wmc
MIKE MILLER, et al.,
     Defendants-Appellees.                         William M. Conley,
                                                   Chief Judge.

                                        ORDER

      Gregory Gordon, a Wisconsin prisoner, appeals the dismissal of his complaint
under 42 U.S.C. § 1983 alleging that the defendants unlawfully arrested and prosecuted
him. He contends that his arrest and prosecution were unlawful because he did not


      *
         After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-2504                                                                          Page 2

commit the offense, for which he was arrested and convicted, of operating a vehicle
under the influence of an intoxicant. Because a judgment in Gordon’s favor would
impugn the validity of that conviction, we affirm.

        At the pleading stage we assume the truth of Gordon’s allegations. See Gomez v.
Randle, 680 F.3d 859, 864 (7th Cir. 2012). The first set of allegations describe the arrest,
which occurred in October 2007. Officer Mike Miller came to the parking lot of the Isla
Vista Casino in Red Cliff, Wisconsin, to respond to a report from security guards that
Gordon had been drinking and drove his red pickup truck into a Cadillac. Based on the
guards’ report, Officer Miller arrested Gordon for operating a vehicle while intoxicated,
see WIS. STAT. § 346.63(1)(a), and criminal damage to property, see id. § 943.01(1). Gordon
insists that he never drove the pickup, and for that reason he should not have been
arrested; he maintains instead that the truck rolled into the Cadillac on its own. En route
to the station for booking, according to Officer Miller, Gordon kicked out one of his
squad car’s back windows, leading to another charge of criminal damage to property.
Gordon insists that he damaged the car only accidentally.

        The charges led to two trials, the subject of Gordon’s second set of allegations. At
the trial on the charge of operating a vehicle while intoxicated, Gordon was convicted.
At a second trial covering the two property-damage charges, Gordon was convicted of
one count of criminal damage to property for kicking out the squad car window, but
acquitted of the other charge based on the car collision. Gordon asserts that the
government prosecuted him at both trials by withholding exculpatory evidence and
using falsified evidence to suggest, incorrectly, that he drove the pickup truck while
intoxicated. Specifically, Gordon alleges that Officer Miller testified falsely that Gordon
drove the pickup into the Cadillac while intoxicated and that this collision was
accurately recorded on the casino’s video surveillance system. Gordon also contends
that the audio-recording of Officer Miller’s conversation with dispatch and an unaltered
version of the casino’s security footage, evidence withheld from him, would have
proven him innocent. Gordon appears also to allege that he was denied this evidence, at
least in part, because he is a Native American.

        After allowing Gordon an opportunity to amend his complaint to clarify his
claim about his status as an American Indian, the district court dismissed the case. The
court concluded that, because he intends to prove his false-arrest claim by maintaining
that he is innocent of the charge of driving while intoxicated, Gordon’s false-arrest claim
is foreclosed by Heck v. Humphrey, 512 U.S. 477, 487 (1994). Heck bars any suit under §
1983 where “a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction” unless the conviction has already been invalidated. Construing some
No. 12-2504                                                                         Page 3
of Gordon’s claims as also alleging malicious prosecution, the court relied on Newsome
v. McCabe, 256 F.3d 747, 750 (7th Cir. 2001), to rule that Wisconsin’s tort of malicious
prosecution forecloses any constitutional claim under § 1983. Finally, the court ruled
that Gordon’s allegations that he was treated differently because he is a Native
American did not comply with Federal Rule of Civil Procedure 8.

       On appeal Gordon contends that, because he was acquitted of the count charging
him with criminal damage to the Cadillac, Heck does not bar his claims that he was
unlawfully arrested and prosecuted on that charge. But Gordon was convicted of
driving the pickup while intoxicated. Although under Heck this conviction would not
necessarily bar a claim that the police lacked probable cause to arrest him, Wallace v.
Kato, 549 U.S. 384, 393–94 (2007), Gordon does not attack the arrest by focusing on an
absence of probable cause. Instead, he insists that the arrest and prosecutions were
wrongful because he never drove the pickup truck at all, a showing he says he was
prevented from making at his criminal trials. But if he proves in this case that he did not
drive the pickup truck, that proof would necessarily impugn the validity of the
conviction that he did drive the pickup while intoxicated. When a plaintiff “makes
allegations that are inconsistent with [his] conviction’s having been valid, Heck kicks in
and bars his civil suit.” McCann v. Neilsen, 466 F.3d 619, 621–22 (7th Cir. 2006) (internal
citation and quotation marks omitted); see also Moore v. Mahone, 652 F.3d 722, 723–25
(7th Cir. 2011); Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) Cunningham v. Gates,
312 F.3d 1148, 1154 (9th Cir. 2002). Because prevailing on his assertion that he never
drove the pickup would undermine his outstanding conviction on the charge that he
drove it while intoxicated, the case is barred by Heck.

       Gordon’s claims should have been dismissed without prejudice, however, so that
he can pursue them if his convictions are ever invalidated. See Polzin v. Gage, 636 F.3d
834, 839 (7th Cir. 2011). The district court correctly observed that, Heck to one side, the
availability of Wisconsin’s tort for malicious prosecution forecloses a federal claim
under § 1983 that the defendants maliciously launched a prosecution. See Ray v. City of
Chicago, 629 F.3d 660, 664 (7th Cir. 2011); Newsome, 256 F.3d at 750–51. But if Gordon’s
remaining convictions are invalidated, he may pursue “a due process claim in the
original sense of that phrase—he did not receive a fair trial if the prosecutors withheld
material exculpatory details.” Newsome, 256 F.3d at 752 (citing Brady v. Maryland, 373
U.S. 83 (1963)).

       We have considered Gordon’s remaining contentions and all are without merit.
No. 12-2504                                                                 Page 4
       Accordingly, we AFFIRM but we MODIFY the judgment so that Gordon’s
claims are dismissed without prejudice.
