### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUI T November 14, 2003 THOMAS K. KAHN

CLERK [PUBL ISH]

IN THE UNITED STATES COURT OF APPEALS FOR TH E ELEV ENTH C IRCUIT

________________________ No. 02-11508

________________________ D. C. Docket No. 01-00527-CV -BH-C NED HUG HES , Plaintiff- Appe llant,

versus CHA RLE S LO TT, P olice Of ficer, DEN NIS J OHN SON , et al.,

Defen dants-A ppellees.

________________________ Appeal from the United States District Court for the Southe

rn Dist rict of Alaba ma

_________________________ (November 14, 2003) Before TJOF LAT, BA RKET T and HIL L, Circuit Judges. BARKE TT, Circuit Judge: Ned H ughes a ppeals th e district co urt’s dism issal, purs uant to 2 8 U.S .C. §2

1915(e)(2)(B)(i) and ( ii), of his pro se and in form a paupe ris civil ri ghts acti on under 4 2 U.S .C. § 19 83 again st several C ity of M obile po lice officer s. In his complaint,Hughes alleges t hat the police officer

s violate d his Fourth Amendment rights by st

opping, searc

hing, and arre sting him without reasonable s

uspicion, probab le cause, o r a warr ant. He a lso alleges that the of ficers’ treatm ent of him after the in itial stop an d arrest, in cluding holding him aga inst his w ill, forcing him to remove his clothes and wait in the cold, and interrogating him in his underwear,

was un constitutio nal. Fina lly, Hug hes claim s that the o fficers too k severa l of his items without

a warrant or his

consent and never

returned the

m. Prior to ser

vice of process, the district court found that Hughes’s claims w ere barred by Heck v. Humphrey , 512 U .S. 477 (1994 ); res judica ta ; the Prison Li tigati on Reform Act, 42 U.S.C. § 1997e(e); and

the st atut e of li mitat ions. It therefore dis

misse d them sua sponte . On appeal, Hughes asse rts that : (1) his claim of an unlawful s earch and seizure is not precluded by Heck , because hi s convictions would not necessa rily be invalidated if he prevailed; (2) his claims are not barred by res judica ta because his prior co mplaint w as dismis sed with out preju dice; (3) h is comp laint requ ests nominal damages,which are not barr ed by 42 U.S.C. § 1997e(e), for violat

ions of his Fou rth Am endme nt rights; a nd (4) th e factual re cord w as insuff iciently3

developed for t

he distri ct court t

o determine t

hat the st atute of limitations period was not tolled for his depriv ation of prop erty claim. We a ffirm the district cou rt’s order with regar

d to the depri

vation of proper

ty clai m. However, we reverse and remand for further pro ceedings on the remainder of H ughes’s claims.

BACKGROUND Hughes is serving l

ife sente nces in Alabama st

ate prison f

or two 1997 convictions

for second-degre e burglary and r eceipt of s

tolen propert

y. In 1998, he filed a compl aint in fe deral dist rict court alleging t

hat the poli

ce officer

s’ acti ons before and aft

er he was taken i

nto custody vi olated the Fourth, Fifth,

Sixth, Eighth, and Fourteenth Amendments. The distric t court dis

missed that

complaint wit

hout prejudic e prior to service o f proces s, holdin g that H ughes’s claims ofillegal arres t, search and sei

zure, and coer

ced confessi on would have the effe ct of undermini ng his burglary

conviction a

nd were therefore

barred by the r

ule in Heck . In addition, it held that his

post-custody claims did not allege physical inj ury – only mental anguish, humiliation,and emotional di stress – and t herefore were bar

red under 42 U.S.C. § 1997e(e). Hugh es filed a se cond co mplaint in 2001,w hich is the subject o f this app eal, similarl y allegi ng violati ons of his Fourth,Fifth, and Fourt eenth Amendment4

rights. U nlike his f irst comp laint, how ever, H ughes’s second compla int explicitly seeks compensatory damages for property seized by t he police officers. I

n addition, it does not s eek damages for time spent incarcerat ed. The district court again dismis sed the complai nt prior to s ervice of proc ess, rel ying on Heck and § 1997e(e) as well as the doctrine of res judica ta for the claims raise d in Hug hes’s first compl aint. It

dismissed Hughes’ s deprivation of property claim as barred by the two-year statute of limitations. Hughes now appeals.

STANDARD OF REVIEW In form a paupe ris proceed ings are g overne d by 28 U.S.C . § 1915

. Subsection (e)(2) of that stat ute provides that “t

he court shall dismiss t

he case at any time if

the court det

ermines that

. . . (B) t he action or a

ppeal – (i) i s frivolous or malicious [or]; (ii) fails to st ate a claim upon which relief may be granted . . . .” 28 U.S.C. § 19 15(e)(2). A district court’s sua spo nte dismissal for fail ure to state a claim under § 1915(e)(2)(B)(ii) is revie wed de novo , viewing the a llegations in the compla int as true. Mitchell v. Farcass , 112 F .3d 148 3, 1490 (11th C ir. 1997 ). Similarly, a dist

rict court’s ruling on issues of res judica ta is reviewed de novo

. NAACP v. Hunt , 891 F.2d 1555 , 1560 (11th Cir. 1990 ). A district court’s sua sponte dismissal

for frivoli

ty under 28 U.S.C. § 1915(e)(2)(B)(i) i s reviewed for5

abuse o f discretio n. Bilal v. Driver , 251 F .3d 134 6, 1348 (11th C ir. 2001 ). “ Pro se pleadings are held to a less stringent standard than pleadings d rafted by attorneys and will, therefore, be l

iberally construed. ” Tannenbaum v. United States , 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

DISCUS SION I. Heck v. Humphrey Under Heck v. Humphrey , 512 U.S. 477 (1994), a s tate pri soner may not bring a clai

m for damages under 42 U.S.C. § 1983 “if a judgment i n favor of the plaintiff would necessaril y imply the invalidi

ty of his conviction.” Id. at 4 87. As the Supreme Co urt noted, the most obvious exam ple of an action barred by Heck is one in w hich the p laintiff actu ally “seek[s ] damag es directly a ttributable to conviction or confinement.” Id. at 487 n.6. But e ven when the plaint

iff does not seek such damages, his suit may be barred if , for example, he must negate “an element o f the offe nse of w hich he h as been c onvicted ” in orde r to prev ail, id. , or if he conte nds that th e statute un der wh ich he w as conv icted is un constitutio nal. The Court explaine d in a footnote , however, that its holdi ng would not necessarily precl

ude a Fourth Amendment claim of illegal search and seizure: For ex ample, a s uit for da mages a ttributable to an alleg edly unr easonab le search may lie even if the c hallenged search produced evidence that was1 See also Haring v. Prosise , 462 U.S. 306, 321-2

2 (1983); Gerstein v. Pugh , 420 U.S. 103, 119 (1975) (“illegal arrest or detention does not void a subsequent conviction”)

.

2 In Heck , the Supreme Court noted that some Fourth Amendment claims would, if successful, necessarily imply the invalidity of the conviction because they would negate an element of the offense. For example, a successful § 1983 claim for unreasonable seizure might negate an element of the offense of resisting arrest. See Heck , 512 U.S. at 487 n.6. Thus, the court must look both to the claims raised under § 1983 and to the specific offenses for which the § 1983 claimant was convicted. 6 introdu ced in a sta te crimina l trial resultin g in the § 1983 p laintiff's still-outst

anding conviction. Because of doctrines l ike independent source and inevitable discovery, . . . and especially harmless error, . . . such a § 1983 a ction, eve n if succe ssful, w ould no t necessar ily imply that the plaintiff' s conviction was unlawful. In order to recover compensatory damages, however, the § 1983 plaintiff must prove not only that the search was unlawful, but t

hat it ca used him actual , compensable i njury, . . . which, we hold today, does notencompass the "i njury" of bei

ng convicted and imprisoned (until his convict ion has been overturned). Id. at 487 n.7 (citati ons omitted) (emphasis in original ). Because an illegal

search or arrest m ay be follo wed b y a valid co nviction , see id. , 1 a successful § 1983 action for Fourth Amendment searc h and seizure violations doe s not necessa rily impl y the invalidity o f a conv iction. A s a result, Heck does not generally bar such claims. 2 See Datz v. Kilgore , 51 F.3d 252, 253 n.1 (11th Cir. 1995) (per curiam) (“ Heck v. Humphrey . . . is no bar to Datz’ civil acti on because, even if the perti nent search did viola te the Fed eral Con stitution, D atz’ conv iction mig ht still be va lid considering s

uch doctrines

as inevit able discove

ry, independe

nt source, a

nd harmles s error.”) ; see also Moore v. Si ms , 200 F.3d 1170 (8th Cir. 2000) (per curiam) (holding that unlawfu l seizure claims are not barred by Heck ); Beck v.7

City of M uscogee P olice Dep’t , 195 F.3d 553, 558 (10th Cir. 1999) (finding that Heck did not apply to defendant’s claims of illegal ar rest, search, and sei

zure); Copus v. City of Edgert on , 151 F.3d 646, 648 (7th Ci r. 1998) (observi

ng that the Seventh Circuit interprets Heck to allow all § 1983 claims for unlawful searches or seizures u nder the Fourth Amen dment to go forw ard). But see Harvey v. Waldron , 210 F.3d 1008, 1110 (9th Cir. 2000) (concluding that under Heck , § 1983 claims of illegal search and sei

zure of evidenc e on which criminal charges are based do not accrue until the charges have bee n dismissed or the conviction has been overtur ned); Hudson v. Hughes , 98 F.3d 868, 872 (5th Cir. 1996) (holding that Heck barred the def

endant’s claims of fals e arrest a nd excessive f

orce based on the specific fa cts of the c ase); Schilling v. Wh ite , 58 F.3d 1081, 1086 (6th Ci r. 1995) (finding that under Heck , setti ng aside a convi ction is a preconditi on for bringing Fourth Amen dment c laims). In this cas e, the ci

rcumstances s

urrounding Hughes’s convictions for burglary and receipt of stolen property are unknown from the record. It was impossible,

therefore,

for the dist

rict court to determine

that a succ essful § 1983 action for unreasonable search and sei zure necessar ily implied the invalidi ty of those convictions. The distr ict court therefore e

rred in finding these clai ms barred under Heck at this stage in the pro ceeding s.3 In 1996, 28 U.S.C. § 1915(d) was redesignated as § 1915(e), pursuant to the Omnibus

Consolidated Resci

ssions and Appropr

iations Act of 1996 , Pub. L. No. 104 -134, § 804, 110 Stat

. 1321-74 (April 26, 1996). 8 II. Res Jud icata Additionall

y, the dis trict c ourt erred by a

lternat ively fi nding that,according to the doctrine of res judica ta , Hughes failed to state a c laim. Under res judica ta , a final judgment

bars a subsequent

lawsuit rel

itigat ing matters

that were li

tigated or could h ave been litigated in th e earlier su it. I.A. Dur bin, Inc. v. Jeffers on Nat’l Bank , 793 F .2d 154 1, 1549 (11th C ir. 1986 ). How ever, res judica ta does no t apply if there w as no fin al judgm ent on th e merits in the earlier s uit. Id. A dismissal without prejudice is not an adjudi cation on the merits and thus does not have a res judicata effect. Cooter & Gell v. Hartmar x Corp. , 496 U.S. 384, 396 (1990). In this case, th e district co urt dism issed w ithout pr ejudice H ughes’s claims rais ed in 1998. Accordingly, the doctrine of res judica ta did not bar Hughes from reassert ing the same claims in 2001. The distric

t court’s reliance to the contr

ary on Denton v. Hernandez , 504 U.S. 25 (1992), is misplaced. Describing the appropriat e standard of review for § 1915(d) dismissals, 3 the Denton Court noted that one factor to consider i s “whether the dismissal was with or without prejudice .” Id. at 34. The Court then continued by observing tha

t § 1915(d) dismis sals are not dismissal s on the merits and,9

therefor e, do no t prejudic e the later filin g of a pa id comp laint. Id. They “could, however, have a res judicata effect on frivolousness determinations for fut ure in forma p auperis petitions.” Id. As a result, a reviewing court “should consider wheth er the distr ict court ab used its d iscretion b y dismiss ing the co mplaint w ith prejudice or without leave to amend.” Id. Thus the Denton Court recognize d no res judica ta effect of § 1915 di smissals on s ubsequent paid c omplaints but, at the same time, stressed t

o the courts of appeal the importance of c onsidering whether the dismissal was with or w ithout prejudice. The logical conclusion is that only § 1915 dismissals with prejudice would have a res judica ta effect on future in for ma pauper is petiti ons; the dis tincti on between “with” or “without” would ot

herwise be meaningless. The district court therefore erred in fi nding here that the earlier § 1915 d ismissal without prejudice barred Hughes’s 2001 in form a paupe ris claims.

III. Prison Litigation Reform Act Hughes’s 2001 complaint also seeks damages for his treat ment by the police officers a fter he w as taken in to custod y. He alleg es that he w as forced to strip down to his underwear, sit in the cold for an extended peri od, and then answer question s at the po lice station, s till wearin g only h is under wear. C haracteriz ing it as an Eighth, or alternati vely a Fourteenth, Amendment claim, the dist rict court4 Section 1997e(e), however, “only precludes some actions for money damages, and does not materially thwart actions for declaratory and injunctive relief.” Harris v. Garner , 190 F.3d 1279, 1288 (11th Cir. 1999), vacated , 197 F.3d 1059 (11th Cir. 1999), reinstated in relevant part , 216 F.3d 970, 972 (11th Cir. 2000) ( en banc ). 10 dismissed this clai

m as barred by the Prison Litigation Reform Act, which precludes a prisoner from bringing a federal civil acti on “for mental or emotional injury suff

ered while in c

ustody without a

prior showing of physical harm.” 42 U.S.C . § 1997 e(e). Hu ghes arg ues on a ppeal tha t, proper ly constru ed, his compla int raises a F ourth A mendm ent challen ge to the u nreason ableness of his arrest and seeks no minal da mages. S ection 19 97e(e), h owev er, bars an y claim seeking compensatory dam ages for emotional distress suffered w hile in custody. 4 See Napier v. Preslicka , 314 F .3d 528 , 532 (1 1th Cir. 2 002). H ughes c oncede s this but argues tha

t § 1997e(e) does not

bar nominal damages , which he clai ms to have sough t. Nominal damages are appropriate if a plaint iff establis

hes a violation of a fundam ental con stitutional r ight, even if he cann ot prov e actual inju ry sufficie nt to entitle him to comp ensatory damag es. Carey v. Piphus , 435 U.S. 247, 255 (1978). Nom inal dam ages are a vailable fo r Four th Am endme nt violatio ns. See Slicker v. Jackson , 215 F.3d 1225, 1227 (11th Cir. 2000) (approving of nominal damages award in Fou rth Am endme nt excess ive force claim). Relying on the plain text of the statute,the Second, Third, Seventh, Ninth, and Tenth Circuits have int erpreted11

§ 1997 e(e) not to preclud e a prison er from seeking nomin al damag es. See Calhoun v. Detella , 319 F .3d 936 , 941 (7 th Cir. 20 03); Oliver v. Keller , 289 F.3d 623, 630 (9th Cir . 2002) ; Thompson v. Carter , 284 F .3d 411 , 418 (2 d Cir. 20 02); Searles v. Van Bebber , 251 F .3d 869 , 878-7 9 (10th Cir. 200 1); Allah v. Al-Hafeez , 226 F.3d 247, 252 (3d Cir. 2000). The dis trict court d ismissed Hugh es’s com plaint sua spo nte before servi ce of process. Thus,the issue of whether § 1997e(e) pre cludes a pri soner from seeki ng nominal damages has

not been present

ed in any way to t

he distri ct court,and the district cou rt did no t conside r wheth er Hug hes’s com plaint cou ld be liber ally constru ed to req uest nom inal dam ages. See Leal v. Ga. Dep’t of Corrections , 254 F.3d 127 6, 1280 (1 1th Cir. 200 1) (per curiam ) (vacating the d istrict court’s judgment and remandi

ng to allow that

court to consider the lega l question i

n the first i nstance). Thus this cla

im should be considered by the di strict court in the first instance

.

IV. Depriv ation of P roperty Final ly, t he distric t cour t dismisse d Hughes’ s depri vati on-of-proper

ty claims under the Fourtee

nth Amendment on the grounds t hat they were f

iled outside of Alabama’s two-year statute of li mitations applicable to § 1983 actions and were12

therefore frivo lous under 28 U.S .C. § 1915 (e)(2)(B)(i). T o dismiss a pr isoner’s complaint as

time-barre d prior to ser vice, it must “appear be

yond a doubt from the complaint i

tself t hat [the pri soner] can prove no set of fact

s which would avoid a statute of li

mitations bar.” Leal , 254 F.3d at 1280. From the complaint, it is c lear that more than two ye ars pa ssed be tween t he accrual o f Hughes’ s prope rty c laims and the filing of his compla int in 2001. Hughes asserts,however, that he may be able to show that

the limit ations period was tolled i f he is given a chance to amend his com plaint. In Leal , the district c ourt sua spo nte dismisse d the pris oner’s § 1983 s uit because, on i

ts face,the complaint

appeared to be ba

rred by the t

wo-year stat

ute of limitat ions. On appeal,

Leal argued and we found t hat the st atute of limitations may hav e been to lled wh ile he exh austed h is admin istrative rem edies. A s a result, given the fac

ts of Leal’ s case, we concl uded that “i

t does not appea

r beyond a doubt from the compla int itself that L eal can pr ove no set of facts which would avoid a statute of li

mitations bar.” Id. We vacated the di strict court’s opi

nion and remand ed for L eal to pres ent his arg ument to that cour t first. Although the procedural posture here is similar, Hughes, unlike Leal, has pointed us to no particular reason w hy the statu te of limitatio ns migh t be tolled in his case, and we can discern none from the record. We therefore concl ude that the13

distric t court did not

abuse its di scretion i

n dismissing Hughes’ s claim. The district cou rt’s order did not, h owev er, specify that it dism issed this c laim with prejudice. Thus, if Hughes is able t o plead facts that would support a finding t hat the statute o f limitation s has bee n tolled, h e should be gran ted leave to amend his compla int. AFFIRM ED in part and REVER SED in part.