Michael Angelo Riddick v. Angelone, 330 F.3d 630, 633 4th Cir. 2003 . We must accept the allegations in…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7882
MICHAEL ANGELO RIDDICK,
Plaintiff - Appellant,
versus
LEON LOTT, Sheriff; HOWARD L. AUSTIN,
Corporal, Richland County Sheriff Offices,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. R. Bryan Harwell, District Judge.
(CA-05-2182-RBH)
Submitted: July 26, 2006 Decided: October 12, 2006
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Michael Angelo Riddick, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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*This opinion should not be read as an indication regarding
our view of the merits of Riddick’s claim. We conclude only that
the action was prematurely dismissed.
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PER CURIAM:
Michael Angelo Riddick appeals the district court’s order
accepting the recommendation of the magistrate judge and dismissing
his 42 U.S.C. § 1983 (2000) complaint. We review de novo a
dismissal under 28 U.S.C. § 1915(e)(2) (2000). De’Lonta v.
Angelone, 330 F.3d 630, 633 (4th Cir. 2003). We must accept the
allegations in Riddick’s complaint as true and draw all reasonable
factual inferences in his favor. See De’Lonta v. Angelone, 330
F.3d 630, 633 (4th Cir. 2003). After thoroughly reviewing the
record, we vacate the district court’s dismissal order and remand
the case for further proceedings. *
In his pro se complaint, Michael Riddick contends that
Officer Austin, without provocation, punched Riddick in the face,
causing Riddick to lose three teeth. In a special interrogatory
ordered by the magistrate judge, Riddick acknowledged that he pled
guilty in state court to assaulting a police officer while
resisting arrest and threatening a public official. Riddick has
not appealed the conviction.
The magistrate judge recommended dismissing the action on
the ground that Riddick’s claim called into question the validity
of his conviction, and Riddick has failed to demonstrate that his
conviction has been reversed, expunged, invalidated, or otherwise

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called into question as required under Heck v. Humphrey, 512 U.S.
477 (1994). Riddick filed timely objections. The district court
accepted the recommendation of the magistrate judge and dismissed
the complaint.
As a preliminary matter, this case presents a question of
jurisdiction because Riddick appeals from a dismissal without
prejudice. We find appellate jurisdiction exists because the order
of dismissal suggests that no amendment could cure the defects in
Riddick’s case. See Young v. Nickols, 413 F.3d 416, 418 (4th Cir.
2005); Domino Sugar Corp. v. Sugar Workers Local Union 392, 10 F.3d
1064, 1066-67 (4th Cir. 1993).
As the district court recognized, Heck v. Humphrey bars
a § 1983 action if it is clear from the record that its successful
prosecution would necessarily imply that the plaintiff’s earlier
conviction was invalid. The Heck analysis requires a close factual
examination of the underlying conviction. See Heck, 512 U.S. at
487 n.7 (observing that suits for unreasonable searches may go
forward if the underlying conviction is otherwise saved by such
doctrines as independent source, inevitable discovery, and harmless
error); Ballenger v. Owens, 352 F.3d 842, 846-47 (4th Cir. 2003)
(conducting fact-intensive inquiry to determine whether evidence
from subsequently challenged search was “uniquely available from
the alleged illegal search” or was otherwise admissible or
cumulative); Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th Cir.

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2001), cert. granted, judgment vacated on other grounds, 537 U.S.
801 (2002) (examining criminal trial transcript to determine if
underlying conviction, based on general verdict, would be called
into question by successful § 1983 suit).
In this case, the record is sparse. Without knowing the
factual basis for Riddick’s plea, we cannot determine whether his
claim of police brutality would necessarily imply invalidity of his
earlier conviction for assaulting an officer while resisting
arrest. S.C. Code Ann. § 16-9-320 (2003). It is not clear from
Riddick’s pro se complaint whether the officer’s alleged punch
preceded, coincided with, or followed Riddick’s resistance and
assault. If the officer’s alleged punch caused Riddick to engage
in the conduct that undergirds his conviction, then a successful
§ 1983 suit would necessarily imply invalidity of that conviction,
since a person cannot be found guilty of resisting arrest if he is
simply protecting himself, reasonably, against an officer’s
unprovoked attack or use of excessive force. See State v.
Williams, 624 S.E.2d 443, 445-46 (S.C. App. 2005). If, however,
there is no legal nexus between the officer’s alleged punch and
Riddick’s resistance and assault; that is, the alleged punch
occurred, independently, either before Riddick resisted arrest, or
after his resistance had clearly ceased, then a successful § 1983
suit for excessive force would not imply invalidity of the
conviction. See Smith v. City of Hemet, 394 F.3d 689, 697-99 (9th

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Cir. 2005) (en banc) (“[A] § 1983 action is not barred by Heck
unless the alleged excessive force occurred at the time the offense
[of resisting arrest] was being committed. . . . [If the
officers’] alleged acts of excessive force . . . occurred before or
after Smith committed the acts to which he pled, [they] would not
invalidate his conviction [for resisting arrest].”) (citation
omitted). In analogous cases, courts have ruled that Heck does not
bar § 1983 actions alleging excessive force despite a plaintiff’s
conviction for resisting arrest because a “state court’s finding
that [a plaintiff] resisted a lawful arrest . . . may coexist with
a finding that the police officers used excessive force to subdue
[the plaintiff].” Martinez v. City of Albuquerque, 184 F.3d 1123,
1127 (10th Cir. 1999); accord Nelson v. Jashurek, 109 F.3d 142,
145-46 (3d Cir. 1997); Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.
1995). In a similar vein, Riddick’s conviction may coexist with a
finding that the officer’s alleged attack was unprovoked and
occurred independently of Riddick’s own resistance.
Because the timing of the events is unclear, we vacate
the district court's order dismissing Riddick's action without
prejudice pursuant to Heck and remand for further proceedings
consistent with this opinion. We dispense with oral argument
because the facts and legal contentions are adequately presented in

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the materials before the court and argument would not aid the
decisional process.
VACATED AND REMANDED

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