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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.
Appeal 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") against 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 in the allegedly unconstitutional
conviction of Davis in 1990 for capital murder. In Davis 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 of
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Texas, "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 defendants'
handling of evidence in Davis'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
policies, practices and customs of Bexar County and its medical
examiner, Di Maio.
Citing the Supreme Court's recent opinion in Heck 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 Davis 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 that
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[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment or for other harm caused by actions
whose unlawfulness would render a conviction 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." Id. at ----, 114 S.Ct. at 2371 ("We think
the hoary principle that civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal
judgments applies to § 1983 damages 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
allegedly wrongful 1990 conviction in state court using tainted
evidence--has been fully adjudicated in his favor: the conviction
has been reversed. 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,
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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 unarticulated 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 2373, n. 8 ("[I]f a state criminal defendant brings a federal
civil-rights lawsuit during the pendency of his criminal trial,
appeal, or state 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 motions, and
neither do we. The judgment of the district court is therefore
REVERSED and the case is REMANDED for further proceedings not
inconsistent with this opinion.
REVERSED and REMANDED.

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