United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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 No. 03-1877

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Vernon Parker, *

*

Appellant, *

*

v. *

*

Det. John Matthews; Det. Severson; *

Emmet Warkenthien, Police Officer for *

City of Sioux Falls; City of Sioux Falls, *

South Dakota, Minnehaha County *

Detectives, *

*

Appellees. *

___________ Appeals from the United States

District Court for the

No. 03-1899 District of South Dakota.

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[UNPUBLISHED]

Vernon Parker, *

*

Appellant, *

*

v. *

*

Det. John Matthews; Det. Severson; *

City of Sioux Falls, South Dakota, *

Minnehaha County Detectives, *

*

Appellees. *

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 Submitted: August 14, 2003

 Filed: August 19, 2003

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Before MORRIS SHEPPARD ARNOLD, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

South Dakota inmate Vernon Parker filed these actions under 42 U.S.C. §

1983, each arising from a series of allegedly abusive encounters with law

enforcement officers in Sioux Falls. The district court dismissed both prior to service

for failure to state a claim. Parker appeals, and we reverse in the first case and affirm

in the second.

According to Parker's complaints, he was falsely arrested by Detectives

Matthews and Severson in February 2002 and jailed for seven weeks before he was

able to make bail. He alleges that after his release, detectives regularly followed him

around town. In April 2002, Matthews and Severson accused him of having drugs,

threatened to have his bail revoked if he did not tell the truth, and arrested him for

attempting to possess a controlled substance. They stopped him again in June 2002

as he was leaving a Sioux Falls bar with a friend. According to the police report of

the stop which Parker attached to his complaints, Matthews and Severson turned their

car around to check a red Buick “parked on the north side of the Sportsmans bar with

an unknown black male standing alongside.” Parker alleged that the two officers

forcefully pulled him from the car and interrogated him and his companion regarding

alleged possession of drugs. His companion attempted to flee and discarded a bag of

crack cocaine, but was quickly captured. Although the companion indicated Parker

knew nothing about the drugs, Parker was taken to the station for questioning and

charged with conspiracy to distribute crack cocaine.
1

Although Parker alleges only official capacity claims against the officers and

did not allege his rights were violated pursuant to a custom or policy, we decline to

affirm on that basis alone. If Parker had had notice of possible dismissal, he could

have sought leave to amend his complaints to state individual capacity claims against

the officers. See Good v. Dauphin County Soc. Servs. for Children & Youth, 891

F.2d 1087, 1096 (3d Cir. 1989).

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Parker's two § 1983 claims were filed against the City of Sioux Falls and a

number of law enforcement officers, claiming constitutional violations. The district

court dismissed both cases, reasoning that Parker's claims of false arrest,

unconstitutional searches, and fabrication of evidence were barred by Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994) (where success of § 1983 claim would

necessarily imply invalidity of conviction, plaintiff must prove conviction has been

reversed, expunged, or called into question), and that his claims of police harassment

and use of excessive force did not rise to the level of a constitutional violation.

We conclude that preservice dismissal was not warranted in the first case.

Accepting the allegations in the complaints as true, we cannot say that Parker's false

arrest claims are barred by Heck. See Moore v. Sims, 200 F.3d 1170, 1171-72 (8th

Cir. 2000) (per curiam); Whitmore v. Harrington, 204 F.3d 784, 784-85 (8th Cir.

2000) (per curiam). Moreover, allegations that Parker was stopped and searched

solely because of his race and that defendants used unnecessary force during his

arrest were sufficient to avoid preservice dismissal. See Buffkins v. City of Omaha,

922 F.2d 465, 469-70 (8th Cir. 1990) (race alone does not create reasonable and

articulable suspicion of criminal activity), cert. denied, 502 U.S. 898 (1991); Guite

v. Wright, 147 F.3d 747, 750 (8th Cir. 1998) (right to be free from excessive force

during arrest is clearly established right under Fourth Amendment).1

We affirm the dismissal of the second of Parker’s complaints, however, as it

is essentially repetitive of the first, and the latter may be amended on remand if

appropriate. See Missouri ex rel. Nixon v. Prudential Health Care Plan, Inc., 259
-4-

F.3d 949, 954 (8th Cir. 2001) (plaintiff may not pursue multiple federal suits against

same parties involving same controversy at same time).

Accordingly, we affirm case 03-1899, and reverse and remand for further

proceedings in case 03-1877. We grant Parker leave to proceed in forma pauperis;

the filing fee shall be assessed and the collection details left to the district court. See

Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir. 1997) (per curiam).

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.