Vernon Parker v. John Matthews , 71 F. App'x 613 ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1877
    ___________
    Vernon Parker,                            *
    *
    Appellant,                    *
    *
    v.                                  *
    *
    Det. John Matthews; Det. Severson;        *
    Emmet Warkenthien, Police Officer for *
    City of Sioux Falls; City of Sioux Falls, *
    South Dakota, Minnehaha County            *
    Detectives,                               *
    *
    Appellees.                    *
    ___________                             Appeals from the United States
    District Court for the
    No. 03-1899                             District of South Dakota.
    ___________
    [UNPUBLISHED]
    Vernon Parker,                           *
    *
    Appellant,                  *
    *
    v.                                 *
    *
    Det. John Matthews; Det. Severson;       *
    City of Sioux Falls, South Dakota,       *
    Minnehaha County Detectives,             *
    *
    Appellees.                  *
    ___________
    Submitted: August 14, 2003
    Filed: August 19, 2003
    ___________
    Before MORRIS SHEPPARD ARNOLD, MURPHY, and MELLOY, Circuit Judges.
    ___________
    PER CURIAM.
    South Dakota inmate Vernon Parker filed these actions under 
    42 U.S.C. § 1983
    , each arising from a series of allegedly abusive encounters with law
    enforcement officers in Sioux Falls. The district court dismissed both prior to service
    for failure to state a claim. Parker appeals, and we reverse in the first case and affirm
    in the second.
    According to Parker's complaints, he was falsely arrested by Detectives
    Matthews and Severson in February 2002 and jailed for seven weeks before he was
    able to make bail. He alleges that after his release, detectives regularly followed him
    around town. In April 2002, Matthews and Severson accused him of having drugs,
    threatened to have his bail revoked if he did not tell the truth, and arrested him for
    attempting to possess a controlled substance. They stopped him again in June 2002
    as he was leaving a Sioux Falls bar with a friend. According to the police report of
    the stop which Parker attached to his complaints, Matthews and Severson turned their
    car around to check a red Buick “parked on the north side of the Sportsmans bar with
    an unknown black male standing alongside.” Parker alleged that the two officers
    forcefully pulled him from the car and interrogated him and his companion regarding
    alleged possession of drugs. His companion attempted to flee and discarded a bag of
    crack cocaine, but was quickly captured. Although the companion indicated Parker
    knew nothing about the drugs, Parker was taken to the station for questioning and
    charged with conspiracy to distribute crack cocaine.
    -2-
    Parker's two § 1983 claims were filed against the City of Sioux Falls and a
    number of law enforcement officers, claiming constitutional violations. The district
    court dismissed both cases, reasoning that Parker's claims of false arrest,
    unconstitutional searches, and fabrication of evidence were barred by Heck v.
    Humphrey, 
    512 U.S. 477
    , 486-87 (1994) (where success of § 1983 claim would
    necessarily imply invalidity of conviction, plaintiff must prove conviction has been
    reversed, expunged, or called into question), and that his claims of police harassment
    and use of excessive force did not rise to the level of a constitutional violation.
    We conclude that preservice dismissal was not warranted in the first case.
    Accepting the allegations in the complaints as true, we cannot say that Parker's false
    arrest claims are barred by Heck. See Moore v. Sims, 
    200 F.3d 1170
    , 1171-72 (8th
    Cir. 2000) (per curiam); Whitmore v. Harrington, 
    204 F.3d 784
    , 784-85 (8th Cir.
    2000) (per curiam). Moreover, allegations that Parker was stopped and searched
    solely because of his race and that defendants used unnecessary force during his
    arrest were sufficient to avoid preservice dismissal. See Buffkins v. City of Omaha,
    
    922 F.2d 465
    , 469-70 (8th Cir. 1990) (race alone does not create reasonable and
    articulable suspicion of criminal activity), cert. denied, 
    502 U.S. 898
     (1991); Guite
    v. Wright, 
    147 F.3d 747
    , 750 (8th Cir. 1998) (right to be free from excessive force
    during arrest is clearly established right under Fourth Amendment).1
    We affirm the dismissal of the second of Parker’s complaints, however, as it
    is essentially repetitive of the first, and the latter may be amended on remand if
    appropriate. See Missouri ex rel. Nixon v. Prudential Health Care Plan, Inc., 259
    1
    Although Parker alleges only official capacity claims against the officers and
    did not allege his rights were violated pursuant to a custom or policy, we decline to
    affirm on that basis alone. If Parker had had notice of possible dismissal, he could
    have sought leave to amend his complaints to state individual capacity claims against
    the officers. See Good v. Dauphin County Soc. Servs. for Children & Youth, 
    891 F.2d 1087
    , 1096 (3d Cir. 1989).
    -3-
    F.3d 949, 954 (8th Cir. 2001) (plaintiff may not pursue multiple federal suits against
    same parties involving same controversy at same time).
    Accordingly, we affirm case 03-1899, and reverse and remand for further
    proceedings in case 03-1877. We grant Parker leave to proceed in forma pauperis;
    the filing fee shall be assessed and the collection details left to the district court. See
    Henderson v. Norris, 
    129 F.3d 481
    , 484-85 (8th Cir. 1997) (per curiam).
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -4-