1 United States Court of Appeals,

Fifth Circuit.

No. 95-50297.

Jack Warren DAVIS; Patsy Bates Davis, Plaintiffs-Appellants,

v.

Fred S. ZAIN; Vincent J.M. Di Maio, Dr.; Bexar County, Texas,

Defendants-Appellees.

March 28, 1996.

App eal from the United States District Court for the Western

District of Texas.

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

PER CURIAM:

After reviewing the record, studying the briefs of the

parties, and considering the arguments presented to this court, we

have concluded that the district court erred in dismissing without

prejudice the suit brought under 42 U.S.C. § 1983 by Jack Warren

Davis and Patsy Bates Davis (together, "Davis") agains t Fred S.

Zain, Vincent J.M. Di Maio, and the Bexar County Medical Examiner's

Office (together, the "defendants").

Davis seeks damages in this § 1983 suit from the defendants

arising from their role i n the allegedly unconstitutional

conviction of Davis in 1990 for capital murder. In D avis v. State,

831 S.W.2d 426 (Tex.App. —Austin 1992, pet. ref'd), the Court of

Appeals of Texas reversed Davis's 1990 conviction and remanded for

a new trial, after finding that the district attorney engaged in

prosecutorial misconduct and suborned perjury. Subsequent to the

reversal, counsel for Davis uncovered, in the words of the State of2

Tex as, "more serious and probably perjurious misconduct of Fred

Zain." Davis then filed a pretrial writ of habeas corpus in state

court, seeking dismissal of the second prosecution against him on

grounds of double jeopardy and violation of his right to due

process. As support for his due process claim, Davis raised the

knowing use of Zain's perjured testimony and other prosecutorial

misconduct. Although the habeas court denied Davis's requested

relief, it found numerous "irregularities" in the de f endants'

handling of evidence in D avis's 1990 murder trial, including the

probability that Zain committed aggravated perjury in testifying at

that trial. The State of Texas has conceded the misconduct

observed by the appeals and habeas courts, and has indicated that

it will not rely upon this evidence at retrial. Davis now awaits

a second criminal trial. In the meantime, Davis filed this § 1983

suit against the defendants, alleging that Zain's investigation,

testing and testimony in connection with his conviction for capital

murder were inaccurate, and that the inaccuracies resulted from the

po licies, practices and customs of Bexar County and its medical

examiner, Di Maio.

Citing the Supreme Court's recent opinion in H eck v.

Humphrey,

--- U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994),

the district court here dismissed Davis's § 1983 suit on the

grounds that the criminal proceeding against Davi s had not

terminated in his favor and, consequently, that his § 1983 claim

had not accrued. We disagree with this reading of Heck.

The Supreme Court in Heck made clear that3

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment or for other harm caused by actions

whose unlawfulness would render a convictio n or sentence

invalid, a § 1983 plaintiff must prove 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, 28

U.S.C. § 2254. A claim for damages bearing that relationship

to a conviction or sentence that has not been so invalidated

is not cognizable under § 1983.

Heck,

--- U.S. at ----, 114 S.Ct. at 2372. The Supreme Court

imposed this requirement on § 1983 plaintiffs in order to avoid

collateral attacks by plaintiffs on convictions against them that

are "still outstanding." I d. at ----, 114 S.Ct. at 2371 ("We think

the hoary principle that civil tort actions are not appropriate

vehicles for challenging the validity of o utstanding criminal

judgments applies to § 1983 damag es actions that necessarily

require the plaintiff to prove the unlawfulness of his conviction

or confinement, ...") (emphasis added).

Davis squarely meets the requirements of Heck. The question

arising from Davis's criminal trial over which he is now suing—his

al legedly wrongful 1990 conviction in state court using tainted

evidence—has been fully adjudicated in his favor: the conviction

has been reve rsed. We therefore conclude that his § 1983 claim

relating to that conviction has accrued.

Furthermore, it is highly unlikely that Davis's § 1983 suit

will implicate the validity of his pending retrial for capital

murder—for which no date has yet been fixed. The State of Texas

has indicated that it "does not intend to use any evidence tainted

by Mr. Zain" in retrying Davis for capital murder. Consequently,4

there is little likelihood here for conflict between Davis's § 1983

suit and the pending state court criminal proceeding. The state

asserts that if Davis's § 1983 suit goes forward before or during

his criminal retrial, he can conduct civil discovery more broadly

than criminal discovery, and the state will incur the vexation of

two trials. It is the state's conduct, however, that led to this

situation when it initially prosecuted Davis with tainted evidence.

Moreover, if some presently unforeseen or unarticulat ed conflict

arises between the criminal retrial and the pending § 1983 case,

the district court may consider the propriety of a stay or,

perhaps, abstention. See Heck, --- U.S. at ----, n. 8, 114 S.Ct.

at 23 73, n. 8 ("[I]f a state criminal defendant brings a federal

civil- rights lawsuit during the pendency of his criminal trial,

appeal, or st ate habeas action, abstention may be an appropriate

response to the parallel state-court proceedings."). But compare

Allen v. Louisiana State Bd. of Dentistry, 835 F.2d 100, 104 (5th

Cir.1988) ("[R]equests for monetary damages do not fall within the

purview of the Younger abstention doctrine.")

In sum, we are satisfied that in this case, Davis's § 1983

cause of action against the defendants has accrued. The district

court did not reach the defendants' dispositive motio ns, and

neither do we. The judgment of the district court is therefore

REVERSED and the case is RE MANDED for further proceedings not

inconsistent with this opinion.

REVERSED and REMANDED.