Lawson v. Molder

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-60192 Conference Calendar __________________

JAMES BERNARD LAWSON,

Plaintiff-Appellant,

versus

DENNIS MOLDER and JAMES DAVIS,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:94-cv-366BN - - - - - - - - - - June 30, 1995 Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

James Lawson appeals the dismissal of his action pursuant to

42 U.S.C. § 1983 as frivolous. This court addressed Lawson's

illegal-arrest contention in an earlier case. We determined that

Lawson's illegal-arrest claim called into question the validity

of his conviction and was barred by Heck v. Humphrey, 114 S. Ct.

2364 (1994). If a claim falls under Heck, a would-be § 1983

plaintiff has no cause of action until he can show that his

conviction has been invalidated. Id. at 2373.

The use at trial of unreliable identification evidence

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-60192 -2-

obtained by police through unnecessarily suggestive procedures

violates a defendant's right to due process. Neil v. Biggers,

409 U.S. 188, 199 (1972); Passman v. Blackburn, 652 F.2d 559, 569

(5th Cir. 1981), cert. denied, 455 U.S. 1022 (1982). Because

judgment in favor of Lawson on either his illegal-arrest claim or

his tainted-lineup claim would imply the invalidity of his

conviction, the district court properly dismissed those claims

pursuant to Heck.

Pursuant to Heck, district courts should not dismiss

§ 1983 actions for failure to pursue habeas corpus remedies or

stay § 1983 actions for exhaustion of habeas remedies. See Heck,

114 S. Ct. at 2373. Lawson's contention that the district court

should have stayed his lawsuit therefore is without merit.

Lawson seeks release from prison. By his own admission,

Lawson's state post-conviction application for relief was pending

when he filed his complaint. To the extent that Lawson seeks

habeas corpus relief, the district court should have dismissed

his claims without prejudice so that he could exhaust state-law

remedies. McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158,

161 (5th Cir. 1995). We modify the district court's judgment to

operate without prejudice to Lawson's ability to exhaust state-

law remedies and pursue federal habeas corpus remedies. See id.

We affirm the district court's judgment in all other respects.

Lawson is warned that he will be sanctioned if he files

frivolous appeals in the future. See Smith v. McCleod, 946 F.2d No. 95-60192 -3-

417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68, 69

(5th Cir. 1991).

AFFIRMED AS MODIFIED.