### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3307

U CHE P. M ORDI

, Plaintiff

‐ Appellant

,

v.

T ODD Z EIGLER

, et al

., Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 11

‐ cv

‐ 193

‐ MJR

— Michael J. Reagan

, Chief Judge

.

____________________

A RGUED A PRIL 20, 2017

— D ECIDED S EPTEMBER 5, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and E ASTERBROOK

,

Circuit Judges

.

W OOD

, Chief Judge

. In January 2012, proceeding pro se

, Uche P. Mordi, a Nigerian national, filed a civil rights action

under 42 U.S.C. § 1983 against local and state officials for

alleged violations associated with his 2009 arrest in southern

Illinois. The district court screened Mordi’s civil rights

complaint, as required by 28 U.S.C. § 1915A. It dismissed with

prejudice all claims except for those against three of the2 No. 15

‐ 3307

officers; the surviving claims relied on the Vienna Convention

on Consular Relations, art. 36.1(b), Apr. 24, 1963, 21 U.S.T. 77,

596 U.N.T.S. 261 (“the Vienna Convention”). After the district

court rejected the officers’ assertion of qualified immunity on

the Vienna Convention claims, they took an interlocutory

appeal to this court. We ruled that all three—Todd Zeigler,

Greg Chance, and Gregg Healey—were entitled to qualified

immunity from Mordi’s claim that they violated his rights

under the Vienna Convention, and we remanded “with

instructions to dismiss the action” against these three. Mordi

v. Zeigler

, 770 F.3d 1161, 1167 (7th Cir. 2014).

On November 21, 2014, the district court dismissed the

Vienna Convention claims against Zeigler, Chance, and

Healey, and entered final judgment on November 24, thus

disposing of all claims against all parties brought by Mordi’s

January 2012 complaint. In an effort to revive his other

theories for recovery, Mordi filed a motion on

December 18, 2014, requesting that the district court revisit its

section 1915A threshold screening order. The district court

denied Mordi’s motion, and Mordi has now brought a timely

appeal from that decision. With the Vienna Convention claims

off the table, Mordi now argues that Officers Zeigler and

Nathan Zerrusen violated his Fourth Amendment rights

when they stopped the car he was driving. They did so, Mordi

asserts, not because they had probable cause for the traffic

stop, but because they were engaged in impermissible racial

profiling. In addition, he argues, the officers unlawfully

prolonged the stop so that they could bring a drug

‐ sniffing

dog to the car. We conclude that the district court acted

prematurely, and that Mordi’s Fourth Amendment claim may

move forward.No. 15

‐ 3307 3

I

Our review of the underlying facts can be brief. At approx

‐ imately 1:10 p.m. on March 12, 2009, Mordi and a passenger,

Aderinola Otesile, were traveling southbound on Interstate 57

in southern Illinois. They passed two Illinois state police cars

parked in the median, one facing northbound, the other

southbound. About ten minutes later, the northbound

‐ facing

car, driven by State Trooper Zeigler, pulled out into the south

‐

bound lane, approached Mordi’s car, and signaled for him to

pull over.

Mordi complied immediately. Zeigler approached the ve

‐

hicle on the passenger side and asked why the license plate

was not on the front bumper, but instead was inside on the

windshield. Mordi explained that the grille and bumper were

cracked, and so he was not able to attach the plate to the front

bumper. Zeigler also told him that the hood was not closed all

the way; Mordi countered that the space between the hood

and the body of the car was less than an inch.

After that exchange, Zeigler asked Mordi for his license

and insurance, and Mordi furnished both. Zeigler also asked

for Otesile’s identification. At that point Zeigler asked Mordi

to get into the squad car; Mordi did so. By now Zeigler knew

that Mordi was a student at Southern Illinois University, and

so he asked Mordi questions about the school, his travel plans,

and similar things, while he checked out Mordi’s identifica

‐

tion. Based on the results, Zeigler asked Mordi about an out

‐ standing warrant for failure to appear in a misdemeanor ma

‐ rijuana case from White County, Illinois. Mordi said he knew

nothing about any warrant, but he admitted that he had paid

fines and complied with an unspecified disposition related to4 No. 15

‐ 3307

such an offense. He then commented that he “could only im

‐ agine a DUI case pending, if any.”

At some point Officer Zerrusen had joined the group.

Mordi remained in the squad car for a few minutes while

Zeigler and Zerrusen questioned Otesile, who was still sitting

in Mordi’s car. Zeigler returned to Mordi and told him that

“everything was good,” and that he would issue Mordi a

warning citation. He did so, gave it to Mordi to sign, and

returned Mordi’s identification to him. But the encounter was

not yet over. Zeigler then asked Mordi if there were drugs in

the car, and Mordi responded (somewhat equivocally) “there

shouldn’t be.” Zeigler asked if he could search the car, but

Mordi said no, several times. Some 20 minutes or so into the

stop, at 1:34 p.m., Zeigler radioed for Rob Rich, of the

Effingham County Sheriff’s Department, to come to the car

with his drug

‐ sniffing dog. Rich arrived ten minutes later; the

dog sniffed the car; and it alerted. The officers ordered Mordi

and Otesile out of the car, searched it, and found crack cocaine

in Mordi’s duffle bag in the back seat.

Mordi and Otesile were taken separately to the state police

station in Effingham. Eventually, however, Mordi was

charged with, and pleaded guilty to, federal drug charges for

possessing with intent to distribute the cocaine. He is now

serving a 120

‐ month sentence for that conviction.

II

Mordi brought the present case under 42 U.S.C. § 1983 be

‐

cause he believes that the officers involved in his stop and de

‐

tention violated his Fourth Amendment rights. The district

court received the complaint on March 14, 2011. It is not late,

however, because Mordi was incarcerated at the time, and heNo. 15

‐ 3307 5

mailed his complaint from the prison on March 11, 2011. That

gives him the benefit of the prison mailbox rule, see Taylor v.

Brown

, 787 F.3d 851, 858–59 (7th Cir. 2015), under which his

complaint is treated as filed within the two

‐ year limit. See 735

ILCS 5/13

‐ 202. The district court dismissed with prejudice

some, but not all, counts of Mordi’s complaint. Its decision to

deny qualified immunity to some of the defendants was im

‐ mediately appealable. See Behrens v. Pelletier

, 516 U.S. 299

(1996). As we noted earlier, we concluded that they were en

‐

titled to qualified immunity and in 2014 remanded the case

for further proceedings.

More than two years earlier, on January 19, 2012, the

district court entered a screening order pursuant to

section 1915A. Its order organized the claims presented in

Mordi’s pro se civil rights complaint into separate counts and

dismissed with prejudice all but the Vienna Convention claim

against Zeigler, Chance, and Healey. (No Vienna Convention

claims against other defendants were preserved.) This

included a rejection of Mordi’s assertion that the initial stop

violated his Fourth Amendment rights. The court gave this

point short shrift in its section 1915A screening order, which

in relevant part read as follows:

At the outset, it must be stated that many of Plain

‐

tiff’s allegations of unconstitutional conduct by the ar

‐ resting and investigating officers, which led to his con

‐

viction, cannot be addressed in the context of a § 1983

action. Indeed, Plaintiff’s complaint never requests the

Court to invalidate his conviction. However, Plaintiff

claims that the original traffic stop was a result of im

‐

proper “profiling,” the stop was illegally prolonged in6 No. 15

‐ 3307

order to conduct a canine sniff search, he was pres

‐

sured to waive his Miranda rights, his interrogation

was unduly coercive, and the county prosecutors acted

improperly in turning him over to the federal prosecu

‐

tor. Such matters are not the proper subject of a civil

rights action under § 1983. See Graham v. Broglin

,

922 F.2d 379, 381 (7th Cir. 1991) (release from custody

cannot be sought in a § 1983 action). Challenges to the

constitutionality of a conviction must be raised, if at all,

on direct appeal from the conviction or in a proper

post

‐ conviction or habeas action, if Plaintiff’s right to

raise such matters was not waived by his guilty plea,

and if any of these actions could be timely filed. Ac

‐ cordingly, these allegations will not be further ad

‐

dressed in this proceeding, and this count shall be dis

‐

missed with prejudice.

Mordi sought reconsideration of this order, but on

September 17, 2015, the district court denied that motion. In

the present appeal, with the assistance of appointed counsel,

he argues only that the district court erred in rejecting his

Fourth Amendment claims against Zeigler and Zerrusen.

III

The distinction on which the district court relied between

a lawsuit that would undermine a conviction, and a lawsuit

focusing on a civil rights violation, is a valid one. See Preiser

v. Rodriguez

, 411 U.S. 475 (1973); Heck v. Humphrey

, 512 U.S.

477 (1994). Heck

, as the Supreme Court later explained in

Wallace v. Kato

, 549 U.S. 384 (2007), held that a prisoner may

not raise a claim under section 1983 “which, if true, would

have established the invalidity of his outstanding conviction.”

Id. at 392. In such a case, the prisoner’s only recourse is eitherNo. 15

‐ 3307 7

direct appeal or a petition for a writ of habeas corpus; if the

time has run for either or both, the prisoner is out of luck, at

least until he is no longer in custody and possibly even then.

See Whitfield v. Howard

, 852 F.3d 656 (7th Cir. 2017).

A plaintiff is the master of his own complaint, however,

and so we must examine what Mordi is asking for, before we

can decide whether he may pursue his section 1983 action or

if the Heck line of cases stands in his way. See Gilbert v. Cook

,

512 F.3d 899, 901–02 (7th Cir. 2008). As the Supreme Court put

it in Muhammad v. Close, 540 U.S. 749, 751 (2004), “ Heck ’s re

‐ quirement to resort to state litigation and federal habeas be

‐

fore § 1983 is not

... implicated by a prisoner’s challenge that

threatens no consequence for his conviction or the duration of

his sentence.” In addition, “when a defendant is convicted

pursuant to his guilty plea rather than a trial, the validity of

that conviction cannot be affected by an alleged Fourth

Amendment violation because the conviction does not rest in

any way on evidence that may have been improperly seized.”

Haring v. Prosise

, 462 U.S. 306, 321 (1983). Mordi insists that he

is complaining only about the improper racial profiling that

led to his traffic stop, and about the officers’ decision to pro

‐ long his detention while they waited for the drug

‐ sniffing dog

to arrive. If he were to prevail on either or both of these points,

his conviction would be unaffected. We recognized as much

in Evans v. Poskon

, 603 F.3d 362 (7th Cir. 2010), where we

wrote:

Many claims that concern how police conduct

searches or arrests are compatible with a conviction.

For example, an arrest without probable cause violates

the fourth amendment but does not imply the invalid

‐ ity of a conviction, because courts do not “suppress the8 No. 15

‐ 3307

body” of the accused. See United States v. Alvarez–

Machain

, 504 U.S. 655 (1992). Similarly, a court ʹ s deci

‐

sion not to suppress illegally seized evidence can lead

to a conviction without blotting out a § 1983 challenge

to the seizure.

Id. at 363–64. We therefore held in Evans that the plaintiff was

“entitled to an opportunity to prove that the defendants used

unreasonable force during and after his arrest.” Id. at 364.

Mordi makes a similar point: even if he were to prevail on his

racial

‐ profiling and prolonged

‐ detention arguments, the dis

‐

covery of the cocaine found within the car would be just as

secure, his guilty plea would stand, and his conviction would,

too. All he can hope for in his Fourth Amendment case would

be some form of damages for the loss of his time and the dig

‐ nitary insult inflicted by racial discrimination.

Despite the fact that Mordi insisted in his complaint that

he was not challenging his conviction (a point that the district

court recognized), the state urges us to read the complaint as

if he were. There is an exception to the Heck bar, under which

a challenge may be brought to actions such as searches and

seizures or a false arrest that do not have any necessary effect

on the validity of a conviction. See Wallace

, 549 U.S. at 397; see

also Dominguez v. Hendley

, 545 F.3d 585, 589 (7th Cir. 2008),

cert. denied

, 556 U.S. 1235 (2009) (“Even if no conviction could

have been obtained in the absence of the violation, the

Supreme Court has held that, unlike fair trial claims, Fourth

Amendment claims as a group do not necessarily imply the

invalidity of a criminal conviction, and so such claims are not

suspended under the Heck bar to suit.”).

The state acknowledges the Wallace exception, but, it ar

‐

gues, there is an exception to that exception. The second

‐ layerNo. 15

‐ 3307 9

exception comes into play if a plaintiff’s allegations necessarily

imply the invalidity of a conviction (even one based on a

guilty plea); in that case, it says, the Heck bar springs back into

existence. It rests its argument on Okoro v. Callaghan

, 324 F.3d

488 (7th Cir. 2003), where we held that defendant Okoro’s ef

‐

fort to complain about a search was just a disguised way of

asserting his innocence. Okoro wanted to argue that the po

‐

lice, who were searching for heroin, had actually stolen gems

and cash from him. Id. at 489. We found that Okoro was really

raising a fundamental argument about the evidence that was

used to convict him—that there were no drugs and that he

was framed. If a jury believed those allegations, the basis of

his conviction would have been wiped out. In keeping with

our normal practice of looking beyond labels and judging

cases on the basis of their substance, we held that Okoro’s at

‐ tempted section 1983 action was Heck

‐ barred.

The worst one can say about Mordi’s case is that he made

a few half

‐ hearted attempts to assert his innocence between

the time the police arrested him and the time he found himself

facing federal charges. But those efforts did not make their

way into his complaint as anything but background infor

‐

mation or an account of what he said at the time. Unlike

Okoro, Mordi is not asking for any form of relief that would

undermine his guilty plea or his conviction. He is raising a

civil rights complaint, and he is raising the type of complaint

that Wallace says accrues at the time of the stop and arrest. In

addition, even if Mordi filed a complaint that included some

Heck

‐ barred contentions and other cognizable arguments, we

have held that the proper response is not to toss the entire

complaint. Instead, the judge must carve off any Heck

‐ barred

contentions and proceed with what remains. Evans

, 603 F.3d

at 364; Gilbert

, 512 F.3d at 902.10 No. 15

‐ 3307

IV

The district court cut off this case at the screening stage,

based on a finding that it could not properly proceed under

section 1983. This was in error, and so we R EVERSE and

R EMAND for further proceedings consistent with this opinion.