Vasquez Arroyo v. Starks

FILED
United States Court of Appeals
Tenth Circuit

December 16, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARTIN VASQUEZ ARROYO,

Plaintiff-Appellant,

v. No. 08-3121

CURTIS STARKS, Police Officer;
MARK FRAME, City Attorney,

Defendants-Appellees.
_________________

MARTIN VASQUEZ ARROYO,

Plaintiff-Appellant,

v. No. 08-3134

TAMMY GROSS, Police Officer;
MARK FRAME, City Attorney,

Defendants-Appellees.

Appeal from the United States District Court
for the District of Kansas
(D.C. Nos. 5:07-CV-03298-SAC & 5:08-CV-03035-SAC)

Jason M. Lynch of Reilly Pozner LLP, Denver, Colorado (Martin Vasquez, also
filed a pro se brief), for Plaintiff-Appellant.

Mark Frame, Edwards County Attorney, Kinsley, Kansas, for Defendants-
Appellees.
Before BRISCOE, SEYMOUR, and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.

Martin Vasquez Arroyo, proceeding in forma pauperis, filed two pro se 42

U.S.C. § 1983 actions in the United States District Court for the District of

Kansas. He alleged that in two separate incidents Kansas state authorities falsely

arrested him and filed falsified pre-trial diversion agreements containing his

forged signatures. 1 The district court dismissed the claims against the arresting

officers without prejudice, holding that Mr. Vasquez’s § 1983 claims were barred

by Heck v. Humphrey, 512 U.S. 477 (1994). In one of the actions, the district

court alternatively held the claims barred by the relevant statute of limitations.

We reverse.

I.

On December 6, 2007, Mr. Vasquez filed his first §1983 action. In his

complaint, Mr. Vasquez asserted that in July 1998, Curtis Starks, a Kansas police

1
In May 2005, following a jury trial, Mr. Vasquez was convicted on
multiple counts, including three counts of first degree murder. The § 1983 claims
before us do not stem from his 2005 convictions or the events leading up to them.
Mr. Vasquez is currently an inmate at the Larned Mental Health Correctional
Facility.

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officer, falsely arrested him, gave him a ticket for driving under the influence and

for transportation of an open container of alcohol, and falsely imprisoned him,

and that on August 11, 1998, Mark Frame, the City Attorney in Kinsley, signed

the ticket and forged Mr. Vasquez’s signature on a pre-trial diversion agreement.

On January 28, 2008, Mr. Vasquez filed a second § 1983 complaint, this

time against Tammy Gross, another Kansas police officer, and Mr. Frame. This

complaint alleged that officer Gross falsely arrested and imprisoned him for

disorderly conduct and battery in July 1998 and that Mr. Frame forged his

signature on a pre-trial diversion agreement filed with the state court on August

27, 1998. 2

The district court dismissed both complaints sua sponte, holding that

“claims against defendant Frame are dismissed with prejudice due to his absolute

prosecutorial immunity” and “plaintiff’s remaining claims are barred by Heck v.

Humphrey and are dismissed without prejudice.” Case No. 08-3121, Rec., vol. I

(hereinafter “Rec. I”), Court Order filed April 25, 2008 (hereinafter “Order I”) at

7; Case No. 08-3134, Rec., vol. I (hereinafter “Rec. II”), Court Order filed April

25, 2008 (hereinafter Order II”) at 6. In addition, the court alternatively held

with respect to the complaint against Officer Gross that it was barred by the

relevant statute of limitations. Mr. Vasquez appeals both judgments but only as

2
Mr. Vasquez alleged that he learned about the diversion agreements when
they were presented in court during his 2005 trial.

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to the officers, not as to the city attorney.

This court appointed counsel to represent Mr. Vasquez and asked the

parties to submit supplemental briefs addressing “[w]hether the Heck v.

Humphrey bar applies to a Kansas pre-trial diversion agreement. Specifically, the

parties should address the question whether Heck v. Humphrey applies when the

plaintiff lacks an available remedy in habeas, in light of the circuit split on this

issue.” Order filed October 3, 2008. As it turns out, we need not reach this issue.

II.

The question presented to the Supreme Court in Heck was whether “a state

prisoner may challenge the constitutionality of his conviction in a suit for

damages under 42 U.S.C. § 1983.” 512 U.S. at 478. All nine justices agreed that

the issue required the Court to reconcile two acts of Congress, § 1983 and the

federal habeas corpus statute: “[T]his case lies at the intersection of the two most

fertile sources of federal-court prisoner litigation – the Civil Rights Act of 1871,

Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983, and the federal habeas corpus

statute, 28 U.S.C. § 2254.” Id. at 480; id. at 491 (Souter, J., concurring in

judgment); id. at 490 (Thomas, J., concurring).

In reconciling § 1983 and the federal habeas statute, Heck confronted the

issue of § 1983 claims brought “to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid.” Id. at 486. The

Court held that in order to be allowed to proceed in those types of actions, “a

§ 1983 plaintiff must prove that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” Id. at 486-87.

Thus, when a state prisoner seeks damages in a § 1983 suit, the
district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated. But if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the absence of some other
bar to the suit.

Id. at 487 (emphasis in original) (footnotes omitted); see also Wallace v. Kato,

549 U.S. 384, 393 (2007) (noting the Heck bar is called into play only when there

exists a criminal conviction that the § 1983 cause of action would impugn).

We have said that “[t]he purpose behind Heck is to prevent litigants from

using a § 1983 action, with its more lenient pleading rules, to challenge their

conviction or sentence without complying with the more stringent exhaustion

requirements for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th

Cir. 2007) (citing Muhammad v. Close, 540 U.S. 749, 751-52 (2004) (per

curiam)). The question presented here is whether the Heck bar is applicable

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where the § 1983 claims arise from allegedly false arrests that led to falsified pre-

trial diversions.

III.

Like dismissals under Rule 12(b)(6), we review de novo a district court’s

sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2) in an in forma pauperis

proceeding. See Perkins v. Kansas Dep’t of Corrs., 165 F.3d 803, 806 (10th Cir.

1999).

In dismissing Mr. Vasquez’s § 1983 claims against Officers Starks and

Gross, the district court stated:

The court concludes the diversion agreement in question here is
sufficiently analogous to a finding in a criminal action that it is
reasonable to impose the Heck bar. There has been no favorable
termination of the criminal charges against plaintiff, and the court
finds no compelling reason to allow claims presented in a civil rights
action which would imply the invalidity of a diversion to proceed
where claims arising from a criminal conviction could not. [3]

Order I at 6; Order II at 5 (emphasis added). Contrary to the district court’s

conclusion, under Kansas law a “[d]iversion is . . . a means to avoid a judgment

of criminal guilt,” the opposite of a conviction in a criminal action. State v.

3
The district court also held that it “interprets this action to assert claims
of constitutional violations. Although plaintiff appears to challenge the validity
of the diversion, such a claim must be pursued in the state court.” Order II at 3.
The court noted: “The court offers no opinion on whether any state court remedies
remain available to the plaintiff, as it appears the events occurred nearly ten years
prior to the filing of this action.” Id. at 3 n.2.

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Chamberlain, 120 P.3d 319, 323 (Kan. 2005); K AN .S TAT . A NN . § 22-2906(3), (4)

(2008); K AN . S TAT . A NN . § 12-4413(c), (d) (2008).

Here, there is no related underlying conviction that could be invalidated by

Mr. Vasquez’s § 1983 actions. The diversion agreements resulted in deferral of

prosecution of the offenses at issue. As a consequence, under Kansas law there

are no “outstanding judgments,” or “convictions or sentences” against Mr.

Vasquez either for driving under the influence and transportation of open

containers of alcohol, or for disorderly conduct 4 and battery – the charges from

which his § 1983 claims stem.

Courts disagree as to whether the Heck bar applies to pre-trial programs

similar to diversion agreements. Compare, e.g., S.E. v. Grant County Bd. of

Educ., 544 F.3d 633, 639 (6th Cir. 2008) (holding Heck inapplicable to pre-trial

diversion agreements); and Butts v. City of Bowling Green, 374 F. Supp. 2d 532,

537 (W.D. Ky. 2005) (same), with Gilles v. Davis, 427 F.3d 197, 211-12 (3d Cir.

2005) (holding that § 1983 claims of a plaintiff who had participated in pre-trial

probationary programs were barred by Heck). In our judgment, holding that the

Heck bar applies to pre-trial diversions misses the mark.

The Supreme Court in Wallace made clear that the Heck bar comes into

play only when there is an actual conviction, not an anticipated one. 549 U.S. at

4
The charge of disorderly conduct was dismissed on August 27, 1998. See
Rec. II, exh. 2 (state court order approving second diversion agreement).

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393. The Court explained why this is so:

What petitioner seeks . . . is the adoption of a principle that
goes well beyond Heck: that an action which would impugn an
anticipated future conviction cannot be brought until that conviction
occurs and is set aside. The impracticality of such a rule should be
obvious. In an action for false arrest it would require the plaintiff
(and if he brings suit promptly, the court) to speculate about whether
a prosecution will be brought, whether it will result in conviction,
and whether the pending civil action will impugn that verdict, see
Heck, 512 U.S., at 487, n. 7, 114 S.Ct. 2364 – all this at a time when
it can hardly be known what evidence the prosecution has in its
possession. And what if the plaintiff (or the court) guesses wrong,
and the anticipated future conviction never occurs, because of
acquittal or dismissal? . . . . We are not disposed to embrace this
bizarre extension of Heck.

Id.; see also Butler, 482 F.3d at 1279 (“The starting point for the application of

Heck . . . is the existence of an underlying conviction or sentence that is tied to

the conduct alleged in the § 1983 action. In other words, a § 1983 action

implicates Heck only as it relates to the conviction that it would be directly

invalidating.”). 5 There is no such conviction here.

Because we have determined that the Kansas pre-trial diversion agreements

are not outstanding convictions and therefore these § 1983 claims impugning their

validity are not barred by Heck, we need not decide whether Heck applies when

5
In Butler, 482 F.3d at 1279, we permitted the petitioner to bring a § 1983
action seeking damages based on the officer’s conduct during his arrest where the
resulting charges were later dismissed as part of a plea agreement regarding other
unrelated charges. We reasoned that Heck was inapplicable because with respect
to the dismissed charge “[t]here [wa]s no related underlying conviction . . . that
could be invalidated by Mr. Butler’s § 1983 action.” Id.

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the plaintiff lacks an available remedy in habeas. Although we implied in Butler

in dicta that Heck does not apply when a habeas remedy is lacking, 482 F.2d at

1278-81, we decline to reach this issue which the Supreme Court has not

resolved, see Close, 540 U.S. at 752 n.2, and on which the circuits are split. 6

IV.

In the case against Officer Gross, the district court stated in its sua sponte

dismissal order that “even if the court declined to extend the Heck rule to a

diversion, this matter would be subject to dismissal under the two-year limitation

6
Compare, e.g., Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007)
(applying Heck to bar petitioner’s § 1983 action challenging the length of his
imprisonment where habeas relief was no longer available), Gilles v. Davis, 427
F.3d 197, 209-10 (3d Cir. 2005) (applying Heck to bar § 1983 action challenging
on First Amendment grounds his arrest for disorderly conduct although plaintiff
had no recourse to habeas action), Randell v. Johnson, 227 F.3d 300, 300-01 (5th
Cir. 2000) (applying Heck to bar § 1983 action where petitioner was ineligible to
obtain habeas relief because he was no longer in custody), and Figueroa v.
Rivera, 147 F.3d 77, 79-80 (1st Cir. 1998) (applying Heck to bar § 1983 action
brought by heirs of former inmate whose habeas petition was dismissed as moot
following his death), with Wilson v. Johnson, 535 F.3d 262, 264, 267-68 (4th Cir.
2008) (holding Heck does not bar relief for petitioner seeking monetary damages
for past confinement where it was no longer possible for petitioner to satisfy the
favorable termination requirement via habeas corpus), Powers v. Hamilton County
Public Defender Comm’n, 501 F.3d 592, 598, 601-03 (6th Cir. 2007) (holding
Heck inapplicable where petitioner was incarcerated for less than thirty days and
thus could not bring a challenge under the habeas corpus statute), and Nonnette v.
Small, 316 F.3d 872, 874, 876 (9th Cir. 2002) (holding Heck does not bar parolee
seeking damages for unconstitutional deprivation of good-time credits where
habeas unavailable because petitioner had already served the term resulting from
parole revocation).

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period applicable to an action brought pursuant to § 1983.” Order II at 6 n.3. As

the district court noted, Mr. Vasquez asserted in his complaint against Officer

Gross that he “did not knew [sic] about this false case until 2005.” Rec. II, vol. I,

Complaint II at 5. Mr. Vasquez did not file his complaint against Officer Gross

until 2008, more than two years after he allegedly learned about the pre-trial

diversion. 7

The Supreme Court has made clear that even under the judicial screening

procedures set up in the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e

et seq., to screen out meritless § 1983 prisoner complaints, there is no heightened

pleading requirement and a pro se plaintiff does not have to anticipate affirmative

defenses in his complaint. Jones v. Bock, 549 U.S. 199, 212-13 (2007). In so

doing, the Court nevertheless recognized the long-standing rule that “[i]f the

allegations . . . show that relief is barred by the applicable statutes of limitations,

the complaint is subject to dismissal for failure to state a claim.” Id. at 215. See

Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. 1995) (district courts have the

authority to raise the statute of limitations affirmative defense sua sponte when it

is “clear from the face of the complaint [and is] rooted in adequately developed

facts.”).

7
When we appointed counsel for Mr. Vasquez on this appeal, we asked him
to address only the Heck matter. Hence, we have no briefing from either party on
the statute of limitations question.

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 But a statute of limitation is subject to tolling and nothing in Mr. Vasquez’s

complaint indicates that he would have no meritorious tolling argument. In fact,

Mr. Vasquez is incarcerated at the Larned Mental Health Correctional Facility,

Order II at 1, raising the implication that he might be entitled to tolling for a

mental disability. See Fratus, 49 F.3d at 675 (reversing sua sponte dismissal of

prisoner suit where tolling of statute of limitations for mental incompetency was

possible); Britz v. Williams, 942 P.2d 25, 30 (Kan. 1997) ( KAN . S TAT . A NN .

§ 60-515 “tolls the statute of limitations for any person who is incapacitated at the

time the cause of action accrues or at any time during the period the statute of

limitations is running.”).

While the Supreme Court has said in the habeas context that “district courts

are permitted, but not obliged, to consider, sua sponte, the timeliness of a state

prisoner’s habeas petition,” Day v. McDonough, 547 U.S. 198, 209 (2006), the

Court held that “[o]f course, before acting on its own initiative, a court must

accord the parties fair notice and an opportunity to present their position,” id. at

210 (emphasis added). In applying Jones and Day in Kilgore v. Attorney Gen. of

Colo., 519 F.3d 1084, 1086-89 (10th Cir. 2008), we addressed a situation where

the district court had dismissed a prisoner’s habeas action for failing to

sufficiently respond to the court’s order that he provide information to establish

that the one-year statute of limitations was tolled. The prisoner asserted that he

had tried without success to obtain the necessary information from the state. In

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reversing, we held “that a § 2254 petitioner does not bear a heightened burden of

pleading timeliness in his application. Consequently, the court may not dismiss

the petition sua sponte simply because it lacks sufficient information to determine

whether the application has been timely filed.” Id. at 1089.

We think the aforementioned authorities support our conclusion that a

district court may not sua sponte dismiss a prisoner’s § 1983 action on the basis

of the statute of limitations unless it is clear from the face of the complaint that

there are no meritorious tolling issues, or the court has provided the plaintiff

notice and an opportunity to be heard on the issue. See Abbas v. Lt. Dixon, 480

F.3d 636, 640 (2d Cir. 2007) (applying Jones and holding that where “the District

Court could not tell from the face of Abbas’s complaint whether he might have

meritorious tolling arguments . . . the District Court should not have dismissed

Abbas’s complaint on the basis of an anticipated statute-of-limitations defense

without granting Abbas notice and an opportunity to be heard.”). When a district

court believes it is likely that a pro se prisoner’s § 1983 complaint is dismissible

on the basis of the state’s statute of limitations, the court may issue a show cause

order giving the plaintiff an opportunity to explain why the statute of limitations

should be tolled. See Street v. Vose, 936 F.2d 38, 41 n.5 (1st Cir. 1991)

(suggesting same). 8 Because it is not clear from the face of Mr. Vasquez’s

8
The dissent believes that the district court’s order of dismissal provided
(continued...)

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complaint that no state tolling provision was applicable to cure his timeliness

problem and he was not given notice and an opportunity to address the issue, we

reverse the district court’s alternative holding that Mr. Vasquez’s complaint

against Officer Gross was dismissible on the basis of the statute of limitations.

V.

For the foregoing reasons, we REVERSE the district court’s dismissal of

Mr. Vasquez’s complaints against both Officer Stark (No. 08-3121) and Officer

Gross (No. 08-3134) and REMAND for further proceedings in accordance with

this opinion.

8
(...continued)
Mr. Vasquez sufficient notice to raise any tolling argument. But that ignores the
Supreme Court’s admonition in Day that “before acting on its own initiative, a
court must accord the parties fair notice and an opportunity to present their
positions,” 547 U.S. at 210, as well as our long-standing rule that a prisoner
complaint is dismissed sua sponte on statute of limitations grounds only so long
as the defense is “patently clear from the face of the complaint” and “rooted in
adequately developed facts,” Fratus, 49 F.3d at 675. Cf. Kilgore, 519 F.3d at
1086-89 (applying the same rule in habeas cases).

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08-3121, Vasquez v. Starks; 08-3134, Vasquez Arroyo v. Frame

BRISCOE, J., concurring in part and dissenting in part:

Because I agree that the district court erred in concluding that both cases

were barred by Heck v. Humphrey, 512 U.S. 477 (1994), I join Parts I, II and III

of the majority opinion. In turn, because the Heck ruling was the only basis for

the district court’s dismissal of Vasquez’s complaint against Officer Starks (Case

No. 08-3121), I fully join in the judgment reversing and remanding that case for

further proceedings.

I cannot, however, join Part IV of the majority’s opinion which reverses the

district court’s alternative basis for dismissing Vasquez’s complaint against

Officer Gross (Case No. 08-3134), i.e., that Vasquez’s complaint was untimely. I

would affirm the district court’s dismissal of Case No. 08-3134 on statute of

limitations grounds and not remand for a show cause to address equitable tolling.

By way of the district court’s order of dismissal in that case, Vasquez was given

notice of the statute of limitations problem evident from the face of his complaint

against Officer Gross. At that point, he had the opportunity to raise before the

district court any viable bases he may have had for equitable tolling. He did not

do so. Although he has appealed the order of dismissal, and thereby had an ample

opportunity to challenge the district court’s statute of limitations ruling, his

appellate pleadings also do not mention the district court’s statute of limitations

ruling or otherwise offer any explanation that could reasonably be construed as an
argument for equitable tolling.

I also question the propriety of the new rule announced by the majority in

Part IV, which borrows support for its conclusions from our habeas corpus

jurisprudence. As I read it, Part IV will, in all but a few instances, effectively

require a district court, prior to dismissing as untimely a pro se prisoner § 1983

complaint, to issue a show cause order “giving the plaintiff an opportunity to

explain why the statute of limitations should not be tolled.” Maj. Op. at 12. In

my view, however, no such procedural requirement is necessary. A district

court’s order of dismissal on statute of limitations grounds effectively operates as

a “show cause” order that may be responded to by a pro se prisoner in at least two

ways. Specifically, a pro se prisoner plaintiff whose § 1983 action has been

dismissed as untimely has the opportunity, either by way of a motion for

reconsideration or via appellate pleadings, to argue any “meritorious tolling

issues” that may exist. If those arguments have merit, the district court can

withdraw the order of dismissal following the filing of a motion for

reconsideration, or the court of appeals can reverse the district court when the

issue is raised by the prisoner on appeal. As Vasquez has not sought the benefit

of equitable tolling by raising it either before the district court or on appeal, it is

not our role to now raise the issue for him.

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