NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0460n.06 Nos. 11-1972/2024/2029
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T ROBERT NO EL , Plaintiff-Appellant/Cross-Appe llee,

v. CARRI E GUERRERO, Detec tive; TI M L ARRI SON, Detec tive; MR. C AMPBEL L , Detec tive; MR. R I CE, Detec tive; MR. URI BE, D etec tive; MR. L OTHI AN, Detec tive; MR. GEORGE BEST, Prosec utor; RUSS EL L J . PERR Y, J R., Attorney ; BERNARD COPOL I NO, Prosec utor; AMY M. MI L L ER, Secre tary ; J ENNI FER KEL L ERMAN, Secre tary ; HEATHER WI L BER, Sec reta

ry ; NANCY A. AB RAHAM, Assistant U.S. P rosec uting Attorne y ; ROY KRANZ , Assistant U.S. P rosec uting Attorne y ; BAY AREA NARCOTI CS ENFORCEMENT TEAM; CI TY OF SAGI NAW; KENNETH ROB ERT SASS E, Attorney ; THOMAS L . L UDI

NGTON , J udg e; THOMAS M. DEASY, L t./I nterna l Affa irs, Def endants-A

ppellees/Cross-Appe llants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL

FROM THE UNI TED STATES DI STRI CT COURT FOR THE E ASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and CL AY, Circuit J udg es; HOOD , District J udg e. *

PER CURI AM. Robert Noel, a fede ral prisoner proce eding pro se , appea ls a district c ourt order dismiss ing his c ivil rights complaint filed pursua nt to 42 U.S.C . §§ 1983 and 1985. Seeking monetary relief

, Noel filed a complaint ag ainst the Ba y Are a Nar cotics Enforc ement Tea m (B AYANE T); s ix BA YANET detec tives; three BA YANET secr etar ies; two Sag inaw County ,

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ng by

desig nation.Nos. 11-1972/2024/2029 - 2 - Michig an, assistant prosec utors; two assistant United States attorney s; attorney s Russell J

. Perry , J r., and Kenne th Robert Sasse; the City of Sag inaw, Michig an; a federa l d i s trict court judge ; and a Michig an State Police office r. Noel alleg ed that his civil rig hts wer e violated when false information

was included in aff

idavits supporting sear ch war rants for his proper

ty

. The sear ches wer e executed

on Aug ust 3, 2007, J uly 24, 2008, and September 4, 2008. The first two sear ches y ielded evidenc e supporting Noel’s convictions for fede ral wea pon offe nses. He is c urre ntly incar cer ated as a result of those convictions. Both Perry and Sasse wer e appointed t o re p resent Noel during his criminal
proce eding s. Noel also alleg ed that th e d ef en d an ts wer e responsible for the submissi on of false documents to the court during his criminal prosec ution, and that they conspired to violate his c ivil rig hts. Perry , Sasse, and the two state prosec utors filed motions to dismiss Noel’s complaint or for
summary judgmen t ; twelve of the rema ining defe ndants filed motions to dismiss the complaint pursuant to Fe dera l Rule of Civil Procedur e 12(b). Noel filed a motion “to hold in abey ance claims dealing with the sear ches of Aug ust 3, 2007 and Jul y

24, 2008.” A mag istrate judg e filed a repor t

rec ommending that Noel’s motion be construed as a motion to voluntarily dismiss the case and that it be g rante d. Over the objections of Perry , Sasse, and Noel, the district court ag ree d with the
mag istrate judge ’s rec ommendation, g rante d Noel’s construed motion for voluntary dismiss al, and dismiss ed the case without prejudice

. Noel filed a timely appeal (N o. 11-1972). Sasse (No. 11- 2024) and Per

ry (No. 11-2029) filed cr oss-appe als. Noel re quests the appointment of c ounsel. Noel challeng es the d i s t ri ct court’s dismiss al of his case . He arg ues that he reque sted the district c ourt to hold his c ase in abey ance as to the Aug ust 3, 2007 and J uly 24, 2008 sear ches, but

not the September 4, 2008 sear ch. Acc ording to Noel, hi s case could have proce eded as to the September 4, 2008 sear ch beca use that sear ch did not produce any evidenc e to support hisNos. 11-1972/2024/2029 - 3 - convictions and did not implicate Hec k v. Hu mp hrey , 512 U.S. 477 (1994). He arg ues that the district court errone ously ref used t o bifurcate hi s complaint and allow his cla ims pertaining to the September 4 sear ch to proce ed. The district court found that bifurcation was “inappr o p r ia te ” beca use Noel “esse ntially seeks compensa tion for his alleg edly unlawful conviction” and that relief “does not

rea dily permit a bifur cation of c laims.”
Gene rally , a plaintiff who reque sts, a nd is g rante d, a voluntary dismiss al without pr ejudice

cannot appea l tha t dismissal. See Dearth v. Mukase y , 516 F.3d 413, 415–16 (6th Cir. 2008). This is so beca use a voluntary dismiss al “is not an involuntary adver se judgme nt.” Id. at 415. Howeve r, in this case , the di strict court construed Noel’s m o t i o n to hold his claims in abey ance as a motion for voluntary dismiss al and Noel con t es t s t he voluntariness of the dismiss al. Under these circ umstances, we find that the district court’ s order is appea lable.
Once an oppo s i n g p ar t y h as responde d to a complaint, “an action m ay be dis missed at t he plaintiff’s reque st only by court order , on terms that the court co n s i ders proper .” Fe d. R. Civ. P. 41(a) (2). Unless otherwise stated, a Rule 41(a) (2) dismiss al “is without prejudice .” Id. We revie w

a district court’s ruling on a Rule 4 1 (a )( 2 ) m otion for an abuse of discretion. Eagles, Ltd. v. Am. Eagle Found. , 356 F.3d 724, 730 ( 6th Cir. 2004). Following the filing of responsive pleading s by some of the defe ndants, Noel filed a motion

to hold his “cla ims dealing with the sear ches of Aug ust 3, 2007 and J uly 24, 2008” in abey ance . His motion indicated that he required tim e to challeng e his fede ral convictions in an eff ort to obtain a favor able ruling overturning those convictions to avoid the Hec k bar that he was fac ing in the instant civil action. Be cause abey ance is not an option to allow a prisoner to challeng e a criminal conviction in an eff ort to av oid the Hec k bar, see Edwards v. Balisok , 520 U.S. 641, 649 (1997), the districtNos. 11-1972/2024/2029 - 4 -
court construed Noel’s motion as a reque st for voluntary dismiss al under Rule 41(a) (2), and g rante d the motion without prejudice. The district c ourt’s dec ision is not an abuse of its discretion. Noel’s civil rig hts action was subje ct t o dismiss al because it challeng ed the validity of hi s convictions. Claims that challeng e the validity of a conviction or sentenc e are not cog nizable under § 1983 in the absenc e of a demonstration that the conviction or sentenc e “has been reve rsed on direc t
appea l, expunged by executive orde r, declare d invalid by a st ate tribunal authorized to make such dete rm i n at i o n , o r called into question by a fede ral court’s issuance of a writ of habea s corpus.”
Hec k , 512 U.S. at 486–87. Noel allege d that the s ear ch warran ts for his proper ty contained false information and that evidenc e seized as a result of at least two of those war rants was used to obtain his convictions. He
soug ht damag es for his all ege d u nlawful incar cer ation. Be cause Noel intended to use § 1983 to coll ater ally attack the validity of his convictions, his civil rig hts claim may not proceed u n t i l h i s criminal convictions are overturne d. See id

. at 486–87. Noel did not alleg e t h at h i s crimi nal convictions had been overturne d and his action could not be stay ed while he challeng ed the validity of his convictions. See Edwards , 520 U.S. at 649. Noel’s claims rela ted to the September 4 sear ch

are not subject to bifurca

tion beca use his suit seeks damag es for his alleg ed unlawful convictions and imprisonment, not separ ate damag es cause d by eac h individual sear ch. T h e district court’s construction of Noel’s motion to hold the case in abey ance was proper under these circ umstances. Be cause the district c ourt dismiss ed Noel’s civil rig hts action without prejudice , he may re- file his suit if he succe ssfully

challeng es his criminal convic tions. Noel also arg ues that the district court failed to rule on his motion for the appointment of counsel. The district cour t’s docket r efle cts that this moti on was filed one month after the motion to hold the claims in a

bey ance . Shortly there afte r, the district c ourt dismiss ed the case under RuleNos. 11-1972/2024/2029 - 5 - 41(a) (2). The district court’s order of dis m i s s al constituted an implicit denial of Noel’s pending motion for the appointment of c ounsel. See W imberly v . Clark Control ler Co. , 364 F.2d 225, 227 (6th Cir. 1966). The district court’s denial of Noel’s motion for the appointment of counsel was not an abuse of discretion. See Lavado v. Keohane , 992 F.2d 601, 605 (6th Cir. 1993). The appointment of counsel in a civil proce eding “is no t a co n s t i t utional rig ht” and “is justified only by exceptional circ umstances.” Id

. at 605–06 (citations omitt ed ). W hen “dete rmining whether exceptional circ umstances exis t,” courts g ener ally examine the “complexity of the fa ctual and leg al issues involved” and the pl aintiff’s ability to repr esent him self. Id. at 606 (interna l quotat ion marks and ci t at i o n s omitted). This case prese nted non-complex issues and Noel demonstrated his ability t o handle the c ase in a pro se capa city throug hout the proce eding s. Fur ther, there ar e no exceptional circ umstances that would justify the appointment of c ounsel. Perry and Sasse contest the district court’s dismiss al of Noel’s claims ag ainst them without prejudice and advocate dismi ssal wi t h p re j u dice. They contend that their di spositive motions did

not rely upon Hec k , but inste ad we re b as ed u p on the fac t that they are not state actor s subject to liability under § 1983 and that Noel’s complaint failed to state a §1985 conspirac y claim. Sasse fea rs defe nding Noel’s action a second time should Noel preva il in any action challeng ing his criminal convictions. The district court dismiss ed Noel’s case under Rule 41(a) (2), which specifie s that a dismiss al pursuant to that rule “is without prejudice .” Assuming that Noel succe ssfully challeng es his criminal convictions, re- files his civil action and identifi es P er ry and Sasse as defe ndants ag ain, Perry and
Sasse are protec ted from the expense of defe nding ag ainst a second civil action. I f a plaintiff re- files “in any court” a pre viously

dismiss ed ac tion that is “based on or including the same claim ag ainstNos. 11-1972/2024/2029 - 6 - the same defe ndant,” a district court has the authority to “orde r the plaintiff to pay all or part of the

costs of that previous action” and to “stay the proce eding s until the plaintiff has complied” with the
court’s order

. Fe d. R. Civ. P. 41(d). Thus, the district court was not require d to dismiss Noel’s claims ag ainst these two defe ndants with prej u d i ce in order to protec t them from the expense of future litig ation arising from the sa me claims should Noel re -file his ac tion ag ainst them. We deny the motion for the appointment of c ounsel and a ffirm the district c ourt’s orde r.