F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 23 2000
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


MARTIN PETE HERNANDEZ,

          Plaintiff-Appellant,

v.

LEE KENNY, parole agent; RODNEY
LEPLANT; BLAKE WOODRING;                               No. 99-4236
LES DAROCZI, District Attorney,                     (District of Utah)
Weber County; CURTIS GARNER,                     (D.C. No. 99-CV-649-K)
and MICHAEL R. SIBBETT, Board of
Pardons and Parole; MANNY
GARCIA, attorney; PUBLIC
DEFENDER ASSOCIATION OF
WEBER COUNTY,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Martin P. Hernandez, a pro se prisoner proceeding in forma pauperis,

appeals the district court’s dismissal with prejudice of his 42 U.S.C. § 1983 civil

rights complaint. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291

and reverses the district court’s order of dismissal.

      In his § 1983 complaint, Hernandez asserted that he was arrested without a

warrant, that he was not released or charged within seventy-two hours of his

arrest, that he was sentenced to prison “illegally,” and that he was denied an

appeal. The matter was referred to a magistrate judge for initial proceedings

pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommended that all

of Hernandez’s claims be dismissed pursuant to Heck v. Humphrey, 

,

487 (1994). In so recommending, the magistrate judge simply noted, without any

further analysis of each of Hernandez’s individual claims, that “[b]ecause a

judgment in [Hernandez’s] favor would imply the invalidity of his conviction,

[he] is barred from this action for damages unless his underlying conviction or

sentence has been invalidated.” Report & Recommendation (“R & R”) at 2.

Hernandez filed written objections to the magistrate judge’s R & R, asserting that

dismissal of his claims relating to the warrantless arrest and the failure to charge

or release within seventy-two hours were not properly dismissed pursuant to


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Heck. He further asserted that even if those claims were properly dismissed

pursuant to Heck, dismissal with prejudice was not appropriate. In response to

Hernandez’s objections to the R & R, the district court conducted a de novo

review of those issues raised in Hernandez’s objections, adopted the R & R, and

dismissed the complaint with prejudice.

      On appeal, Hernandez asserts that the district court erred in dismissing his

warrantless-arrest and charge-or-release claims pursuant to Heck. As this court

recently noted, “Heck applies only to those claims that would necessarily imply

the invalidity of any conviction.” Beck v. City of Muskogee, 

, 557

(10th Cir. 1999). Beck made clear that Heck does not apply to claims such as

those at issue in this appeal, holding that “[c]laims arising out of police actions

toward a criminal suspect, such as arrest, interrogation, or search and seizure are

presumed to accrue when the actions actually occur.” 

This is true

because the application of doctrines such as independent source, inevitable

discovery, and harmless error preclude a conclusion that a successful § 1983

action would necessarily imply that a plaintiff’s conviction was unlawful. 

conclude that the district court erred in dismissing Hernandez’s

warrantless-arrest and charge-or-release claims pursuant to Heck. See Strepka v.

Miller, No. 99-1387, 

, at *1 (10th Cir. Feb. 1, 2000)

(unpublished disposition) (citing Beck and concluding that claims almost identical


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to those at issue here were not subject to dismissal under Heck). 1 That is not to

say, however, that Heck has no application to claims such as those asserted here.

In particular, Heck serves to significantly limit the measure of damages available.

See 

n.3 (noting that although a § 1983 suit for damages for

illegal search and seizure may proceed even where the underlying conviction has

not been invalidated, damages recovered “cannot include those for being

convicted and imprisoned, at least not until the conviction has been overturned).

      The order of the district court dismissing Hernandez’s warrantless-arrest

and charge-or-release claims with prejudice pursuant to Heck is hereby

REVERSED and the case is REMANDED to the district court for further

proceedings consistent with this opinion.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




      1
       Although this court need not reach the issue in light of our conclusion that
Heck does not mandate dismissal of the claims at issue here, it is clear that
“[w]hen a § 1983 claim is dismissed under Heck, the dismissal should be without
prejudice.” See Fottler v. United States, 

, 1065 (10th Cir. 1996).

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