IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-10067

JOSEPH S. BLIMLINE, 

 Plaintiff–Appellant

v.

THIRTY UNKNOWN EMPLOYEES OF THE SECURITIES AND 

EXCHANGE COMMISSION; FIFTEEN UNKNOWN EMPLOYEES OF THE 

FEDERAL BUREAU OF INVESTIGATION, 

 Defendants–Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:15-CV-3166

Before STEWART, Chief Judge, DENNIS, and WILLETT, Circuit Judges. 

PER CURIAM:*

The district court held that federal prisoner Joseph Blimline’s Bivens

action against various federal actors was barred by Heck v. Humphrey, 512 

U.S. 477 (1994). As explained below, we disagree. The Government suggests 

alternative grounds for affirming the district court’s dismissal. These 

arguments have potential merit, but at this early stage, the record is not 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 3, 2018

Lyle W. Cayce

Clerk

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sufficiently developed. Accordingly, we VACATE and REMAND for further 

proceedings.

I. BACKGROUND

A. Factual

Joseph Blimline, federal prisoner # 18029-078, sued 30 unknown 

employees of the Securities and Exchange Commission and 15 unknown 

employees of the Federal Bureau of Investigation under Bivens. Blimline 

claims the defendants conspired to violate his constitutional rights by 

searching his offices without a warrant and seizing his property in 2009. These 

searches led to criminal charges in the United States District Court for the 

Eastern District of Texas, where Blimline ultimately pleaded guilty to mail 

fraud and conspiracy to commit mail fraud in 2012. He was sentenced to 144 

months of imprisonment. See ECF TXED 4:10-CR-137, 59, p.1. As relief, 

Blimline sought “a full accounting of [his] property, money damages for loss of 

property, compensation for damages and loss of assets, and full discovery.”

The magistrate judge entered a report and recommendation 

recommending dismissal for failure to state a nonfrivolous claim under 28 

U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Specifically, the magistrate 

judge stated that Heck barred Blimline’s claims because resolving them in 

Blimline’s favor would undermine his federal convictions. The district court 

agreed, dismissing the case as frivolous under §§ 1915(e)(2)(B) and 1915A(b) 

until such time that Blimline demonstrated he could satisfy the Heck

requirements. The district court also certified that any appeal would not be 

taken in good faith under § 1915(a)(3) and Federal Rule of Appellate Procedure 

24(a)(3).

Blimline filed a timely notice of appeal, and moved for leave to proceed 

in forma pauperis on appeal. The magistrate judge denied the motion, noting 

that the district court had previously certified that any appeal would not be 

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taken in good faith. A judge of this court granted Blimline’s IFP motion and 

directed entry of a briefing schedule. Both sides have filed briefs. Blimline 

argues that the district court erred by concluding that his Bivens suit was 

barred under Heck. He says permitting the case to proceed does not undermine 

the validity of his criminal convictions. The Government does not discuss Heck

at all, and instead urges affirmance on alternate grounds—statute of 

limitations, qualified immunity, and failure to comply with mandatory 

procedures—because these grounds “provide more straightforward grounds for 

dismissal than Heck.” Blimline responds that none of these alternate grounds 

have merit.

II. JURISDICTION AND STANDARD OF REVIEW

A. Statement of Jurisdiction

The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We 

have jurisdiction to review the district court’s final order under 28 U.S.C. 

§ 1291.

B. Standard of Review

A Bivens action is analogous to a 42 U.S.C. § 1983 action except that 

§ 1983 applies to constitutional violations by state, rather than federal, actors. 

Izen v. Catalina, 398 F.3d 363, 367 n.3 (5th Cir. 2005). Analysis of a Bivens

claim therefore “parallel[s] the analysis used to evaluate state prisoners’ § 1983 

claims.” Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir. 1994).

If the claim is frivolous or fails to state a claim upon which relief may be 

granted, then the district court should dismiss the claim. See § 1915(e)(2)(B) & 

§ 1915A(b)(1). We review such a dismissal de novo, Green v. Atkinson, 623 F.3d 

278, 280 (5th Cir. 2010), using the standard of review applicable to dismissals 

made pursuant to Federal Rule of Civil Procedure 12(b)(6). DeMoss v. Crain, 

636 F.3d 145, 152 (5th Cir. 2011); see also In re Katrina Canal Breaches Litig., 

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495 F.3d 191, 205 (5th Cir. 2007) (applying de novo review of dismissal for 

failure to state a claim using Rule 12(b)(6) standard).

A plaintiff fails to state a claim upon which relief can be granted when 

the claim does not contain “enough facts to state a claim to relief that is 

plausible on its face.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). “Factual allegations must be enough to raise a right to relief above the 

speculative level on the assumption that all the allegations in the complaint 

are true (even if doubtful in fact).” Bell Atl. Corp., 550 U.S. at 555.

III. DISCUSSION

A. Whether Blimline’s Claim is Heck-Barred

A plaintiff in a civil rights action under § 1983 may not recover damages 

for an “allegedly unconstitutional conviction or imprisonment, or for other 

harm caused by actions whose unlawfulness would render a conviction or 

sentence invalid,” unless he proves “that the conviction or sentence has been 

reversed on direct appeal, expunged by executive order, declared invalid by a 

state tribunal authorized to make such determination, or called into question 

by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486–

87 (internal footnote omitted). Heck applies equally to civil rights actions 

against federal officials under Bivens. Stephenson, 28 F.3d at 27 & n.1. In 

Skinner v. Switzer, 562 U.S. 521 (2011), the Supreme Court held that a 

judgment in favor of the plaintiff in his § 1983 suit for an order requiring DNA 

testing “would not necessarily imply the invalidity of his conviction” because 

the results might prove inconclusive, exculpatory, or might further incriminate 

the prisoner. Id. at 533–34 (internal quotation marks omitted, alterations, and 

citation omitted).

Heck supports Blimline’s position. It is true that a plaintiff’s unlawful 

search and seizure claim undermines the validity of a conviction. Thus, it is

Heck-barred if evidence that was a direct or indirect product of the alleged 

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unlawful search and seizure was presented in the plaintiff’s criminal 

conviction proceeding. See Heck, 512 U.S. at 487 n.7; see also Mackey v. 

Dickson, 47 F.3d 744, 746 (5th Cir. 1995) (in the context of an allegedly 

unlawful arrest). If, however, the illegally obtained evidence is admissible 

under the independent source or inevitable discovery doctrine, or if the 

evidence’s admission is deemed harmless, Blimline’s claims would not 

necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487 

n.7. A Fourth Amendment claim may survive if it alleges some damage other 

than the conviction and sentence. See id.

Blimline requested “a full accounting of [his] property, money damages 

for loss of property, compensation for damages and loss of assets,” for the SEC 

and FBI’s allegedly warrantless search of his office and seizure of his property, 

the failure to provide him with an accounting of the assets seized, and the 

intentional infliction of emotional distress. The record is not sufficiently 

developed to determine whether any illegally obtained evidence was 

admissible under the independent source or inevitable discovery doctrine or 

whether the admission of the evidence was harmless. Plus, Blimline has 

alleged damages other than his conviction and sentence. By failing to brief the 

Heck issue, the Government has provided no insight here.

On this record (and keeping in mind what Blimline must demonstrate in 

the district court to survive summary dismissal), the district court erred by 

dismissing Blimline’s Bivens suit based on Heck. See Bell Atl. Corp., 550 U.S. 

at 555; In re Katrina Canal Breaches Litig., 495 F.3d at 205. Perhaps, upon 

further development of the record, the district court could determine that the 

suit is Heck-barred. But for now, the record is not sufficiently developed to 

affirm the summary dismissal on that basis.

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B. Alternate Grounds for Dismissal

This court may nevertheless affirm the district court’s judgment on any 

basis the record supports. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). 

The Government suggests three alternate bases for affirming: (1) Blimline’s 

claims are all time-barred; (2) Qualified immunity blocks Blimline’s takings 

and due process claims; and (3) Failure to comply with the Tucker Act’s and/or 

Federal Tort Claims Act’s (FTCA) processes bars his takings and state-law tort 

claims. Neither the magistrate judge nor the district court addressed these 

grounds for dismissal.

1. Limitations

The Government claims Blimline’s causes of action are all subject to a 

two-year statute of limitations. See Brown v. Nationsbank Corp., 188 F.3d 579, 

589–90 (5th Cir. 1999) (FTCA and Bivens claims); 28 U.S.C. § 2679(b)(1) (state 

tort claims properly brought under the FTCA). The Government believes the 

causes of action all accrued more than two years before Blimline sued on 

September 24, 2015. It cites several possible accrual dates: the December 2009 

search and seizure, Blimline’s 2010 indictment and 2012 conviction, Blimline’s 

April 2013 sentence reduction, and the September 23, 2013 civil judgment. 

Blimline counters that the date of accrual for all his claims is the September 

23, 2013 civil judgment and that he placed his complaint in the mail on 

September 21, 2015.

“A cause of action accrues, under federal law, when the plaintiff knows 

or has reason to know of the injury which is the basis of the action.” Brown, 

188 F.3d at 589–90 (internal quotation marks and citation omitted). “The 

plaintiff’s knowledge of the injury depends on two elements: (1) the existence 

of the injury; and (2) the connection between the injury and the defendant’s 

actions.” Id. at 590. “Dismissal is appropriate if it is clear from the face of the 

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complaint that the claims asserted are barred by the applicable statute of 

limitations.” Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).

Although the Government may ultimately be correct, it is currently not 

clear from the face of Blimline’s complaint if some or all of the claims are timebarred. If Blimline is correct that his cause of action accrued when the civil 

judgment was entered against him on September 23, 2013—one of the

Government’s potential accrual dates—at least some of his claims are not timebarred. Blimline was incarcerated when he submitted his Bivens complaint.

So, he receives the benefit of the prison mailbox rule. See Causey v. Cain, 450 

F.3d 601, 604 (5th Cir. 2006); Cooper v. Brookshire, 70 F.3d 377, 378–81 (5th 

Cir. 1995) (applying prison mailbox rule in civil rights case). Given that 

Blimline states he mailed the document before the two-year limitations period 

had run, it is questionable on this record whether his claims are time-barred.

2. Qualified Immunity, Tucker Act, and FTCA

The Government assumes Blimline has failed to allege facts in his 

complaint which could overcome qualified immunity. As for Blimline’s alleged 

noncompliance with the Tucker Act and the FTCA, the Government again 

relies on Blimline’s failure to allege facts that would demonstrate that he 

exhausted the remedies those subsections provide. Generally, a district court 

must not dismiss a pro se litigant’s complaint for failure to state a claim unless 

it has given the litigant an opportunity to develop the facts and amend his 

complaint to remedy the deficiencies. Eason v. Thaler, 14 F.3d 8, 9–10 (5th 

Cir.1994). Blimline did not have such an opportunity in this case because the 

magistrate judge and district court did not address this ground for dismissal. 

While the magistrate judge did state that Blimline was not permitted the 

opportunity to amend his complaint because such amendment would be futile, 

this conclusion was premised on the magistrate judge’s conclusion that 

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Blimline’s claims were Heck-barred, not because Blimline’s claims would fail 

on qualified immunity, Tucker Act, or FTCA grounds.

IV. CONCLUSION

In light of this, the Government’s alternate grounds for affirmance are 

insufficient on this record. Accordingly, we VACATE and REMAND to the 

district court for further proceedings.

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