1 Mackey's complaint named Permian Basin Drug Task Force

Agent Rick Dickson, Brownfield Police Chief Bill Avery, Assistant

Chief Roy Rice, County Sheriff Jerry Johnson, and prosecutor G.

Dwayne Pruitt as defendants. For the first time on appeal,

Mackey names three additional Permian Basin Drug Task Force

Agents as defendants: Shirley Lee, Steve Fuertez, Tony Bowdoin.

1 United States Court of Appeals,

Fifth Circuit.

No. 94-10800.

Alton R. MACKEY, Plaintiff-Appellant,

v.

Rick DICKSON, et al., Defendants-Appellees.

March 16, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before KING, GARWOOD and BENAVIDES, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Alton R. Mackey (Mackey) appeals the

district court's dismissal of his section 1983 suit as frivolous

pursuant to 28 U.S.C. § 1915(d). We vacate and remand.

Facts and Proceedings Below

Mackey, a Terry County, Texas Jail inmate, filed this suit on

June 22, 1994, pursuant to 42 U.S.C. § 1983 against four law

enforcement off icers and a prosecutor asserting, i nter alia, an

unreasonable search and seizure claim. 1 The district court granted

Mackey leave to proceed in forma pauperis. Mackey alleges that he

was arrested on January 15, 1993, harassed by officers, and then

released. Mackey also alleges that he was again arrested on March

3, 1994, and subsequently indicted on March 21, 1994, for delivery2 This March 21, 1994, indictment is the most recent event

described by Mackey.

3 The district court did not dismiss on this basis (as it

perhaps could have had Mackey persisted in a refusal to state

what relief he desired). In his brief on appeal, Mackey states

for the first time that he is seeking monetary damages.

2 of cocaine in June, July, and August 1993. 2 Where the form

complaint that Mackey used asks the plaintiff to state the relief

sought, Mackey wrote that he would "state relief latter [sic]." 3

The district co urt s ua sponte and without prior notice

determined that Mackey was attacking the constitutionality of his

arrest. Because the district court held that "an attack on the

constitutionality of an arrest is an attack on the fact of

confinement," it determined that Mackey's complaint w as a habeas

corpus action and dismissed it for failure to exhaust state

remedies. In addition, the district court held that, to the extent

Mackey sought tort damages in his section 1983 action, his claim

was not actionable unless and until the validity of his conviction

is called into question and therefore dismissed his claim. On July

26, 1994, the district court entered a judgment dismissing Mackey's

complaint without prejudice. No S pears hearing was held; nothing

was filed on behalf of any of the defendants. Mackey filed a

timely notice of appeal.

Discussion

Dismissal of an in forma pauperis petition under 28 U.S.C. §

1915(d) is appropriate where the district court is satisfied that

the action is frivolous. An action is frivolous "where it lacks an

arguable basis either in law or in fact." N eitzke v. Williams, 4903

U.S. 319, 323-25, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989);

see also Booker v. Koonce, 2 F.3d 114, 115-16 (5th Cir.1993). We

r eview a district court's section 1915(d) dismissal for abuse of

discretion. D enton v. Hernandez,

--- U.S. ----, ----, 112 S.Ct.

1728, 1734, 118 L.Ed.2d 340 (1992).

If success for the plaintiff in his section 1983 suit would

challenge the constitutionality of his conviction and the plaintiff

cannot show t hat the conviction has been reversed, expunged,

invalidated, or called into question by the issuance of a habeas

writ, the district court may properly dismiss the section 1983

c laim under section 1915(d). B oyd v. Biggers, 31 F.3d 279 , 283

(5th Cir.1994), applying Heck v. Humphrey,

--- U.S. ----, 114 S.Ct.

2364, 129 L.Ed.2d 383 (1994). However, if the district court

decides "that the plaintiff's [section 1983] action, even if

successful, will not demonstrate the invalidity of any outstanding

criminal judgment against the plaintiff, the action should be

allowed to proceed, in the absence of some other bar to the suit."

Heck, --- U.S. at ---- - ----, 114 S.Ct. at 2372-73.

While Mackey' s pro se complaint is confusing, the district

court construed it as an attack on the constitutionality of his

arrests. It is well established that a claim of unlawful arrest,

standing alone, does not necessarily implicat e the validity of a

criminal pros ecution following the arrest. U nited States v.

Wilson, 732 F.2d 404, 410 (5th Cir.), cert. denied, 469 U.S. 1099,

105 S.Ct. 609, 83 L.Ed.2d 718 (1984) (citing Gerstein v. Pugh, 420

U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); F risbie v. Collins,4

342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952); K er v. Illinois,

119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886)). S ee also Brown v.

E dwards, 721 F.2d 1442, 1448 (5th Cir.1984) ("[T]here is nothing

necessarily inconsistent between the arrest being illegal and [the]

conviction being proper.").

The record does not clearly reflect that a successful attack

on Mackey's arrests will implicate the validity of his confinement.

It is not clear whether or not Mackey has been tried or convicted.

When his suit was filed, it appears that he was confined pursuant

to the March 21 indictment, the validity of which would not

necessarily be implicated by any illegality in earlier arrests. If

Mackey is tried and convicted and in his contested criminal case no

evidence is presented resulting directly or indirectly from any of

his arrests, it is difficult to see how any illegality in any of

his arrests could be inconsistent with his conviction. On the

other hand, if he is convicted and evidence is present ed by the

prosecution at his criminal trial which is a direct or indirect

product of one or more of his arrests, then his section 1983 damage

claims challenging the validity of his arrests would appear to

undermine the validity of his conviction and hence be barred by

Heck. Of course, in any event any equitable relief in the nature

of release from confinement would be barred by P reiser v.

Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

At this point it is simply premature to determine whether or

not Mackey's damage claims are barred under Heck. Accordingly, the

district court erred in dismissing the claims on the basis of Heck.5

The court may—indeed should—stay proceedings in the secti on 1983

case until the pending criminal case has run its course, as until

t hat time it may be difficult to determine the relation, if any,

between the two.

The judgment of the district court is VACATED and the cause is

REMANDED.