Opinion
NO. 4:09CV122-P-A.
August 3, 2010
ORDER
Presently before the court is the defendants' motion to stay this matter. This matter was filed on November 10, 2009, under 42 U.S.C. § 1983. The plaintiff has stated a claim for excessive force arising out of his arrest on state charges of careless driving, possession of cocaine and resisting arrest. A grand jury ultimately issued a true bill for the possession of cocaine charge.
As for this civil matter, a hearing was held, the defendants were served with process and filed their answer, and a scheduling order was entered. The defendants filed their motion to stay relying on Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994). The defendants contend that the matter should be stayed until the state court criminal charges have been resolved.
According to Heck, a cause of action under 42 U.S.C. § 1983 does not accrue until the plaintiff's conviction or sentence has been invalidated or called into question. Id. at 489-91. A plaintiff may not challenge the validity of his conviction or sentence by seeking damages under 42 U.S.C. § 1983. It is possible, however, for a plaintiff facing unresolved criminal charges to challenge the forced used to procure his arrest without challenging the underlying criminal charges or running afoul of the holding in Heck. See Brown v. Sudduth, 255 Fed. Appx. 803, 805-07, 2007 WL 3283777 at **2-5 (5th Cir. Nov. 7, 2007). Therefore, the defendants' motion (docket entry 30) is DENIED.
IT IS SO ORDERED.