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 2005-04

Sam Thurmond-Green v. Gene Hodges , 128 F. App'x 551 ( 2005 )


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  •                    United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-2600
___________
Sam Edward Thurmond-Green,           *
*
Appellant,               *
* Appeal from the United States
v.                             * District Court for the Eastern
* District of Arkansas.
Gene Hodges, Police Officer, Conway *
Police Department; Mike Welsh,       *      [UNPUBLISHED]
Detective, Conway Police Department, *
*
Appellees.               *
___________
Submitted: March 24, 2005
Filed: April 7, 2005
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Arkansas inmate Sam Edward Thurmond-Green (Green) appeals the district
court’s adverse grant of judgment on the pleadings in Green’s 42 U.S.C. § 1983
action.
Green alleged the following facts in his complaint. Police Officer Gene
Hodges and other unknown officers illegally entered and searched Green’s home
without a warrant or consent. While Green was being detained, Detective Mike
Welsh entered Green’s home and said he wanted to question Green about a robbery.
Green denied any knowledge of the robbery and denied Welsh’s request to search the
residence. Nevertheless, Welsh seized some of Green’s clothing. Hodges escorted
Green, who was wearing only his underwear, outside and presented him to the victim
for possible identification, but no identification was made. Hodges and Welsh
arrested Green without probable cause between 1:00 and 1:30 a.m., upon learning he
“was a convicted felon on federal supervised release.” Green “was jailed and held on
a frivolous federal probation revocation without a warrant for arrest.” Later that day,
Green was interviewed by the Arkansas state police, after which “the federal
probation hold was dropped” and “other subsequent charges were filed against” him
the next day. Green seeks damages for mental anguish and for the unlawful search,
arrest, and detention.
In addition to these allegations, the district court also considered Green’s guilty
plea to a related charge of being a felon in possession of a firearm (a matter of public
record), see Fed. R. Civ. P. 12(c); Porous Media Corp. v. Pall Corp.,
    186 F.3d 1077
    ,
1079 (8th Cir. 1999). Having concluded Green’s damage claims were barred under
Heck v. Humphrey,
    512 U.S. 477 
    (1994), because his felon-in-possession conviction
had not been overturned and was a complete defense to a section 1983 action, the
district court dismissed the complaint with prejudice. On appeal, defendants also
contend Green’s claims are precluded under the doctrine of collateral estoppel
because the claims involved the same issues as were presented in his criminal
prosecution.
Based on the pleadings, we cannot say Green’s conviction was a complete
defense to his section 1983 action. First, while there is case law in this circuit
holding a guilty plea forecloses a section 1983 claim of arrest without probable cause,
see Williams v. Schario,
    93 F.3d 527
    , 528-29 (8th Cir. 1996) (per curiam); Malady
v. Crunk,
    902 F.2d 10
    , 11-12 (8th Cir. 1990), these cases are distinguishable because
Green apparently did not plead guilty to, and was not convicted of, the offense for
which he was arrested; rather, he pleaded guilty to a later charged offense, cf.
-2-
Lambert v. City of Dumas,
    187 F.3d 931
    , 935 n.6 (8th Cir. 1999) (relevant inquiry for
§ 1983 unlawful-arrest claim was whether arresting officers had probable cause at
time of arrest, not whether decision to arrest could be justified by information learned
after arrest). Second, Green alleged he was arrested after officers had illegally
entered his home. In this circumstance, even if the officers had probable cause to
arrest him, a warrantless arrest would be unlawful absent exigent circumstances. See
Rogers v. Carter,
    133 F.3d 1114
    , 1118 (8th Cir. 1998). Further, we cannot conclude
collateral estoppel is a viable alternative ground for judgment on the pleadings,
because the record does not reflect whether the issues in the instant case were actually
litigated during Green’s criminal proceeding. See Pohlmann v. Bil-Jax, Inc.,
    176 F.3d 1110
    , 1112 (8th Cir. 1999); Zinger v. Terrell,
    985 S.W.2d 737
    , 740 (Ark. 1999).
Thus, we deny Green’s motion for appointment of appellate counsel and
remand the case to the district court for further proceedings consistent with this
opinion.
______________________________
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