### 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, w e disagree. The Government suggests alternative grounds for affirming the district court’ s dismissal. These arguments have potential merit, bu t at this early stage, the record is not

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 3, 2018 Lyle W. Cayce Clerk Case: 16-10067 Document: 00514746043 Page: 1 Date Filed: 12/03/2018No. 16

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2 su fficiently developed . Accordingly, we VACATE and REMAND for further proceedings.

I. B ACKGROUND A. Factual Joseph Blimline, federal prisoner # 18029

- 078, sued 30 unknown employees of the Securitie s and Exchange Commission and 15 unkn own employees of the Federal Bur e au 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. H e 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 undermi ne 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 o f Appellate Procedure 24(a)(3). Blimline filed a timely notice of appeal, and moved for leave to p roceed in forma pauperis on appeal. The magistrate judge denied the motion, noting tha t the district court had previously certified that any appeal would not be Case: 16-10067 Document: 00514746043 Page: 2 Date Filed: 12/03/2018No. 16

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3 taken in good faith. A judge of this cou r t granted Blimline’s IFP motion and directed entry of a briefing schedule. Both sides have filed briefs. Blimline argues that the di s trict c ourt 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 convi c tions. 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 thes e alternate grounds have merit.

II. J UR ISDICTION AND S TANDARD OF R EVIEW 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, 2 7 (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 § 191 5(e)(2)(B) & § 1915A(b)(1). We review such a dismissal de novo, G reen v. Atkinson , 623 F.3d 278, 280 (5th Cir. 2010), using the standard of review applicable to dismissals made pursuant to Federal R ule 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. , Case: 16-10067 Document: 00514746043 Page: 3 Date Filed: 12/03/2018No. 16

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4 495 F.3d 191, 205 (5th Cir. 2007) (applying de novo review of dismissal for failure to state a clai m using Rule 12(b)(6) standard). A plaintiff fails to state a claim upon which relie f 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 abo ve the speculative level on the assumption that all t h e allegati ons in the compla int are true (even if doubtful in fact).” Bell Atl. Corp

. , 550 U.S. at 55 5

. III. D ISCUSSION A. Whether Blimline’s Claim is Heck

- Barred A plaintiff in a civil rights action under § 198 3 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 convi ction or sentence has been

rever sed 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 om itted). 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” b ecause the results might prove inconclusive, exculpatory, or might further incriminate the prisoner. Id . at 533

– 34 (inte rnal quotation marks omitted, alterations, and citation omitted). Heck supports Blimline’s position. It is true that a plaintiff’s unlawful search and seizure cla i m undermines the validity of a conviction

. Thus, it is Heck

- barred if evidence that was a dir ect or indirect product of the alleged Case: 16-10067 Document: 00514746043 Page: 4 Date Filed: 12/03/2018No. 16

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5 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 in d epen d ent source or inevitable d i s c ov e ry do c trine, or if the evidence’s admission is d ee m e d harmless, Blimlin e ’s c laims would not

ne cessarily imply the invalidity of h is convictions. S ee H ec k , 512 U.S. at 487 n.7. A Fourth Am e ndment claim may survive if it all e ges som e dam age oth er than th e c onvi c tion and s entence. See id. Blimline requested “a full accounting of [his] property, money damages for loss of property, compe nsation 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 da mages other than his conviction and sentence. B y 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 B reaches 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. Case: 16-10067 Document: 00514746043 Page: 5 Date Filed: 12/03/2018No. 16

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6 B. Alternat e 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 suggest s thre e alternate bases for affirming: (1) Blimline’s cl aims 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) process es bars his takings and state

- law tort claims. Neither the mag istrate judge nor the district court address ed 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. 1 999) (FTCA and Bivens claims); 28 U.S.C. § 2679(b)(1) (state tort claims p roperly brought under the FTCA). The Government believes the causes of action all accrued more than two years be fore Blimline sued on September 24, 2015. It cites several possible ac crual 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 counter s that the date of accrual for all his claims is the Sep tember 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.3 d at 589

– 90 (internal quotation marks and citation omitted). “T he 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 Case: 16-10067 Document: 00514746043 Page: 6 Date Filed: 12/03/2018No. 16

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7 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 ultimate ly be correct, it is currently not clear from the face of Blimline’s complaint if some or all of the claims are time

barred. 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 Gover nment’s potential accrual dates

— at least some of his claims are not time

barred. 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

- y ear limitations period had run , it is questionable on this record wh eth er 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 t he 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 clai m 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 co urt 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 Case: 16-10067 Document: 00514746043 Page: 7 Date Filed: 12/03/2018No. 16

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8 Blimline’s claims were Heck

- barred, not because Blimline’s claims would fail on qualified immunity, Tucker Act, or FTCA grounds.

IV. C ONCLUSION In light of this, the Government’s alternate grounds for affirmance are insufficient on th is record. Accordingly, we VACATE and REMAND to the district court for further proceedings. Case: 16-10067 Document: 00514746043 Page: 8 Date Filed: 12/03/2018