FILED
United States Court of Appeals
Tenth Circuit
August 15, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
EDDIE MENDIA,
Plaintiff-Appellant,
v. No. 10-3312
(D.C. No. 6:10-CV-01132-MLB-KMH)
CITY OF WELLINGTON, a (D. Kan.)
municipal corporation; BRONSON
LEE CAMPBELL; BILL UPTON;
KURT R. VOGEL, all individually
and in their official capacity,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Plaintiff-appellant Eddie Mendia is a Hispanic man appearing pro se in the
district court and in this court. He originally filed this action in Kansas state
court, asserting racial profiling and other claims under the federal and state
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
constitutions and federal and state statutes. The defendants—the City of
Wellington and three of its police officers—removed the case to federal court,
raised the defense of qualified immunity in their answer, and later filed a motion
to dismiss under Fed. R. Civ. P. 12(b)(1) and (6). Mr. Mendia appeals from the
district court’s November 2, 2010, Memorandum and Order dismissing his federal
and state claims. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
I. Procedural History
The facts relevant to this appeal are summarized as follows. On
September 6, 2008, Mr. Mendia was stopped while driving by defendant
Bronson Campbell for failing to yield the right of way to a police car. R. at 24,
¶¶ 37-38. Officer Campbell also told Mr. Mendia that the police were conducting
a DUI saturation patrol, id., and he asked Mr. Mendia if he had been drinking, id.
at 25, ¶ 40. Mr. Mendia responded: “I have been drinking all day.” Id.
Officer Campbell instructed Mr. Mendia to exit his vehicle, and Mr. Mendia then
began stating that he had not been drinking alcohol. Id.
Defendant Bill Upton arrived on the scene. Id., ¶ 41. Officer Campbell
explained the situation to Captain Upton and then began conducting field sobriety
tests on Mr. Mendia, despite Mr. Mendia’s complaints that he had not been
drinking alcohol and that he had hurt his ankle earlier in the day and could not
complete the tests. Id. at 26, ¶ 43. Captain Upton radioed for assistance, and
-2-
defendant Kurt Vogel arrived. Id. at 13, ¶ 45. Mr. Mendia asserted in his
complaint that the three officers proceeded to engage in a “Freak Out the
Motorist” (“F.O.M.”) technique of intense and threatening behavior towards him.
Id. at 29, ¶¶ 52-55. Mr. Mendia ultimately passed the sobriety tests, however, and
the officers released him with a citation for failure to yield the right of way. Id.
at 32, ¶ 60.
Mr. Mendia contested the citation in municipal court, but he was convicted.
He appealed to the state district court, which held a trial de novo. Mr. Mendia
asserted in his complaint that Officer Campbell’s testimony before the state
district court was untruthful and that it was “orchestrated” by the city prosecutor.
See id. at 33-34, ¶¶ 63-64. The court affirmed his conviction, concluding that it
seemed “farfetched that the officer would just fabricate a story to justify a left
turn citation.” See id. at 33, ¶ 63.
Mr. Mendia did not pursue further direct appeal. Rather, he filed this civil
rights suit in state court, asserting both federal and state-law claims centered
around his allegations of racial profiling. As noted above, defendants removed
the case to federal court. They raised the defense of qualified immunity in their
answer, and Mr. Mendia filed a reply, asking the district court to set aside the
state district court’s verdict. See R. at 3 (District Court Docket Sheet, Doc. 15).
Mr. Mendia later filed a motion to clarify and define the issues that would be
remanded to state court. Defendants then filed a motion to dismiss for lack of
-3-
subject matter jurisdiction and for failure to state a claim under
Fed. R. Civ. P. 12(b)(1) and (6). Mr. Mendia filed a response in opposition.
The district court granted defendants’ motion to dismiss. Noting that
Mr. Mendia’s claims arose under 42 U.S.C. § 1983, the court explained that his
Fourth Amendment claim was barred by Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), because it necessarily implied the invalidity of his conviction for failure
to yield the right of way, but his conviction had not been overturned.
R. at 283-84. 1 The district court further explained that Mr. Mendia’s equal
protection claim under the Fourteenth Amendment failed because, although he
had alleged some facts tending to show that Officer Campbell acted with
discriminatory intent, he had not alleged facts showing that defendants’ actions
had a discriminatory effect. Id. at 284-87. The court also explained that
Mr. Mendia’s due process claims failed because he had not alleged sufficient
facts of racial profiling to support his Fourteenth Amendment claim, and police
officers cannot be held liable under the Fifth Amendment for failing to advise him
1
The district court placed the dismissal of Mr. Mendia’s Fourth Amendment
claim based on the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), under
Fed. R. Civ. P. 12(b)(1), which covers a lack of subject matter jurisdiction. We
have previously indicated, however, that a dismissal under Heck is for failure to
state a claim, which falls under Rule 12(b)(6). See Hafed v. Fed. Bur. of Prisons,
635 F.3d 1172, 1178 (10th Cir. 2011) (citing Davis v. Kan. Dep’t of Corr.,
507 F.3d 1246, 1248, 1249 (10th Cir. 2007)).
We also note that a dismissal under Heck is without prejudice. Jiron v.
City of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004).
-4-
of his rights under Miranda v. Arizona, 384 U.S. 436, 467-74 (1966).
R. at 287-88. The court dismissed Mr. Mendia’s Eighth Amendment claims
because that amendment’s “protections are not applicable prior to a conviction.”
Id. at 288. And the court dismissed his claims under 18 U.S.C. §§ 241, 242, 245,
and 42 U.S.C. § 14141 because none of these statutes provides a private cause of
action. R. at 288-89. Finally, the court declined to exercise supplemental
jurisdiction over Mr. Mendia’s state-law claims. Id. at 289. 2
II. Discussion
“Our review of the district court’s dismissal of [Mr. Mendia’s] complaint,
for lack of subject matter jurisdiction and for failure to state a claim respectively,
is de novo.” Muscogee (Creek) Nation v. Okla. Tax Comm’n, 611 F.3d 1222,
1227 (10th Cir. 2010). “We assume the truth of all well-pleaded facts in the
complaint, and draw all reasonable inferences therefrom in the light most
favorable to the plaintiff[].” Leverington v. City of Colo. Springs, 643 F.3d 719,
723 (10th Cir. 2011) (internal quotation marks omitted). “However, ‘[t]o survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, “to state a claim to relief that is plausible on its face.”’” Id. (quoting
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
2
We note that the dismissal of Mr. Mendia’s state-law claims was without
prejudice. See Brooks v. Gaenzle, 614 F.3d 1213, 1229-30 (10th Cir. 2010),
cert. denied, 131 S. Ct. 1045 (2011).
-5-
Twombly, 550 U.S. 544, 570 (2007))). Because Mr. Mendia appears in this court
pro se, we construe his pleadings liberally. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)
(per curiam)).
Mr. Mendia’s “briefs are difficult to understand[, but we] have tried to
discern the kernel of the issues []he wishes to present on appeal.” de Silva v.
Pitts, 481 F.3d 1279, 1283 n.4 (10th Cir. 2007) (citation omitted). Mr. Mendia
argues that the district court erred by using Heck to shield the defendants, that his
discrimination claims were plausible, and that this court should appoint counsel
for him and remand his claims to state court for trial. He also argues that the
district court should have appointed counsel for him. However, the district court
docket sheet does not reflect that he filed a motion for appointment of counsel,
and he has not indicated where he made such a motion. See generally R. at 2-7.
We have carefully reviewed the parties’ arguments in light of the record on
appeal and the governing law. We conclude that there is no error, and we affirm
for substantially the reasons stated in the district court’s November 2, 2010,
Memorandum and Order.
Mr. Mendia’s motion for this court to appoint counsel is denied. The
judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-6-