* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 23 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTIN PETE HERNANDEZ, Plaintiff-Appellant,

v. LEE KENNY, parole agent; RODNEY LEPLANT; BLAKE WOODRING; LES DAROCZI, District Attorney, Weber County; CURTIS GARNER, and MICHAEL R. SIBBETT, Board of Pardons and Parole; MANNY GARCIA, attorney; PUBLIC DEFENDER ASSOCIATION OF WEBER COUNTY, Defendants-Appellees. No. 99-4236 (District of Utah) (D.C. No. 99-CV-649-K)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Martin P. Hernandez, a pro se prisoner proceeding in forma pauperis , appeals the district court’s dismissal with prejudi ce of his 42 U.S.C. § 1983 civil rights complaint. This court exercises jurisdictio n pursuant to 28 U.S.C. § 1291 and reverses the district court’s order of dismissal. In his § 1983 complaint, Hernandez asserted that he was arrested without a warrant, that he was not released or charged within seventy-two hours of his arrest, that he was sentenced to prison “illegally, ” and that he was denied an appeal. The matter was referred to a magistrate ju dge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that all of Hernandez’s claims be dismissed pursuant to Heck v. Humphrey , 512 U.S. 477, 487 (1994). In so recommending, the magistrate jud ge simply noted, without any further analysis of each of Hernandez’s individual claims, that “[b]ecause a judgment in [Hernandez’s] favor would imply the inv alidity of his conviction, [he] is barred from this action for damages unless his underlying conviction or sentence has been invalidated.” Report & Recommend ation (“R & R”) at 2. Hernandez filed written objections to the magistrat e judge’s R & R, asserting that dismissal of his claims relating to the warrantless arrest and the failure to charge or release within seventy-two hours were not proper ly dismissed pursuant to-3-

Heck . He further asserted that even if those claims we re properly dismissed pursuant to Heck, dismissal with prejudice was not appropriate. In response to Hernandez’s objections to the R & R, the district c ourt conducted a de novo review of those issues raised in Hernandez’s object ions, adopted the R & R, and dismissed the complaint with prejudice. On appeal, Hernandez asserts that the district court erred in dismissing his warrantless-arrest and charge-or-release claims pur suant to Heck . As this court recently noted, “Heck

applies only to those claims that would necessaril y imply the invalidity of any conviction.” Beck v. City of Muskogee , 195 F.3d 553, 557 (10th Cir. 1999). Beck

made clear that Heck

does not apply to claims such as those at issue in this appeal, holding that “[c]lai ms arising out of police actions toward a criminal suspect, such as arrest, interrog ation, or search and seizure are presumed to accrue when the actions actually occur. ” Id. at 558. This is true because the application of doctrines such as indepe ndent source, inevitable discovery, and harmless error preclude a conclusionthat a successful § 1983 action would necessarily imply that a plaintiff’s conviction was unlawful. Id. Accordingly, we conclude that the district court er red in dismissing Hernandez’s warrantless-arrest and charge-or-release claims pur suant to Heck

. See Strepka v. Miller , No. 99-1387, 2000 WL 121494, at *1 (10th Cir. Feb . 1, 2000) (unpublished disposition) (citing Beck and concluding that claims almost identical1 Although this court need not reach the issue in lig ht of our conclusion that

Heck does not mandate dismissal of the claims at issue here, it is clear that “[w]hen a § 1983 claim is dismissed under Heck, the dismissal should be without prejudice.” See Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996). -4- to those at issue here were not subject to dismissa l under Heck). 1 That is not to say, however, that Heck has no application to claims such as those asserte d here. In particular, Heck

serves to significantly limit the measure of damag es available. See Beck, 195 F.3d at 559 n.3 (noting that although a § 198 3 suit for damages for illegal search and seizure may proceed even where t he underlying conviction has not been invalidated, damages recovered “cannot inc lude those for being convicted and imprisoned, at least not until the co nviction has been overturned). The order of the district court dismissing Hernande z’s warrantless-arrest and charge-or-release claims with prejudice pursuan t to Heck is hereby
REVERSED and the case is REMANDED to the district court for further proceedings consistent with this opinion.
ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge