Tenth Circuit Weighs in on Split Re Applicability of Heck Favorable-Termination Requirement When Plaintiff Lacks Habeas Remedy
Per Cohen v. Longshore, --- F.3d ----, 2010 WL 4069365 (10th Cir. Oct. 19, 2010):
In his amended complaint, Plaintiff sought to raise two claims: false imprisonment and denial of access to the courts. As for the false imprisonment claim, the district court concluded that this claim lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which generally prohibits an individual from recovering damages in a civil rights action for an allegedly unlawful confinement where there has not been a favorable termination of the criminal action on appeal or in a collateral action. Plaintiff argues, however, that Heck should not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 372 F. App'x 850 (10th Cir.2010). Under these circumstances, Plaintiff argues, his false imprisonment claim should not be barred by his failure to obtain relief in habeas.
The circuits have split on the question of whether the Heck favorable-termination requirement applies when the plaintiff lacks an available habeas remedy. See Vasquez Arroyo v. Starks, 589 F.3d 1091, 1096 (10th Cir.2009) (discussing the circuit split but resolving the case on other grounds).
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We  adopt the reasoning of these circuits and hold that a petitioner who has no available remedy in habeas, through no lack of diligence on his part, is not barred by Heck from pursuing a § 1983 claim.