Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
3-18-1997
Nelson v. Jashurek
Precedential or Non-Precedential:
Docket 96-3599
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 96-3599
CARL NELSON,
Appellant
v.
GEORGE JASHUREK, Patrolman
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 95-0097E)
Submitted under Third Circuit LAR 34.1(a)
February 19, 1997
BEFORE: GREENBERG, LEWIS, and MCKEE, Circuit Judges
(Filed: March 18, 1997)
Carl Nelson
Huntingdon SCI
1100 Pike Street
Huntingdon, PA 16654-1112
Appellant pro se
Kathryn J. Kisak
Quinn, Buseck, Leemhuis, Toohey
& Kroto
2222 West Grandview Boulevard
Erie, PA 16506-4508
Attorneys for appellee
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OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. BACKGROUND
Carl Nelson appeals from an order for summary judgment
entered on September 19, 1996, in this action under 42 U.S.C. §
1983 ("section 1983"). On April 18, 1995, Nelson filed this
action against George Jashurek under the Eighth Amendment to the
Constitution. In his complaint Nelson set forth that Jashurek, a
Sheffield Township police officer, attempted to arrest him on
July 9, 1994. At that time Nelson was wanted for alleged
violations of conditions of parole following his release from
prison after a homicide conviction. According to Nelson's
complaint, he disobeyed Jashurek's orders to halt and instead ran
away. Jashurek pursued and caught Nelson, and a struggle ensued.
Nelson claims that he then sat down and that when he later got
up from the chair, Jashurek beat him with a flashlight and used
excessive and malicious force to subdue him. Nelson asserts that
he sustained physical and psychological injuries as a result of
Jashurek's actions.
After arresting Nelson, Jashurek charged him with
resisting arrest in violation of 18 Pa. Cons. Stat. Ann. § 5104
(West 1983) ("section 5104"). A jury convicted Nelson at a trial
on the criminal charge on October 28, 1994, in the Warren County
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Court of Common Pleas. While we do not know whether Nelson
appealed his criminal conviction, he does not claim that any
court has set aside the conviction or that the validity of the
conviction has been thrown into doubt in any other proceeding.
We thus decide this appeal on the assumption that the conviction
is unimpaired.
In this civil case, which Nelson filed after the
conviction, Jashurek and Nelson filed cross-motions for summary
judgment. The district court referred the motions to a
magistrate judge who filed a report and recommendation on August
28, 1996. In his motion, Jashurek argued that Nelson did not
prove the essential elements of his claim because Nelson could
not show that Jashurek had used an objectively unreasonable
amount of force, and he thus was entitled to qualified immunity.
Jashurek also claimed that he was entitled to a summary judgment
in his favor on the basis of collateral estoppel predicated on
the findings in the criminal trial at which the jury convicted
Nelson.
The magistrate judge found that Heck v. Humphrey, 512
U.S. 477, 114 S.Ct. 2364 (1994), governs this case. In Heck v.
Humphrey the Supreme Court made it clear that an action under
section 1983 could not be maintained on the basis of events
leading to a conviction which has not been reversed or impaired
by other official proceedings if a judgment in favor of the
plaintiff in the civil case would imply that the conviction was
invalid. Id. at 2372. The magistrate judge then cited the
following example from Heck v. Humphrey of an action that cannot
3
be brought unless the underlying conviction has been reversed or
otherwise impaired:
An example of this latter category--a § 1983
action that does not seek damages directly
attributable to conviction or confinement but
whose successful prosecution would
necessarily imply that the plaintiff's
criminal conviction was wrongful--would be
the following: A state defendant is convicted
of and sentenced for the crime of resisting
arrest, defined as intentionally preventing a
peace officer from effecting a lawful arrest.
(This is a common definition of that
offense. See People v. Peacock,68 N.Y.2d
675, 505 N.Y.S.2d 594, 496 N.E.2d 683 (1986);
4 C. Torcia, Wharton’s Criminal Law § 593, p.
307 (14th ed. 1981).) He then brings a §
1983 action against the arresting officer,
seeking damages for violation of his Fourth
Amendment right to be free from unreasonable
seizures. In order to prevail in this § 1983
action, he would have to negate an element of
the offense of which he has been convicted.
Regardless of the state law concerning res
judicata . . . the § 1983 action will not
lie.
Heck v. Humphrey, 512 U.S. at , 114 S.Ct. at 2372 n.6.
The magistrate judge then concluded as follows:
Plaintiff's cause of action is a due process
claim for use of excessive force in his
arrest. However, he was convicted of the
crime of resisting arrest based on this
incident in state court. Because he was
convicted of the crime of resisting arrest in
state court, his claim here is precisely that
described by the Supreme Court in the quoted
material above as one that will not lie until
the underlying conviction is reversed or
called into question. This claim, having not
accrued, must be dismissed.
App. at 11. Consequently, the magistrate judge recommended that
the district court grant Jashurek's motion and deny Nelson's
motion. The magistrate judge did not consider any basis for
granting the motion other than an application of Heck v. Humphrey
4
and thus she did not consider Jashurek's qualified immunity
defense.
The district court adopted the report and
recommendation and thus it granted Jashurek's motion and denied
Nelson's motion. In adopting the report and recommendation, the
district court, like the magistrate judge, relied only on Heck v.
Humphrey. Nelson then appealed from the district's court order,
but only to the extent that the district court granted Jashurek's
motion as Nelson does not contend that the court should have
granted his motion. Rather, he requests that we remand the case
for consideration of his excessive force claim.
II. DISCUSSION
Exercising plenary review, Petruzzi's IGA Supermarkets
Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993),
we will reverse the district court order to the extent that it
granted Jashurek summary judgment. A comparison of the elements
of the state criminal convictions and Nelson's claim against
Jashurek, compels the conclusion that if the proceedings on the
remand are conducted in accordance with the guidelines we set
forth in this opinion, a judgment in Nelson's favor would not
throw the validity of the judgment of conviction in the criminal
case into doubt. Nelson was convicted for resisting arrest in
violation of section 5104 which provides that a person is guilty
of resisting arrest if “with the intent of preventing a public
servant from effecting a lawful arrest [he] creates a substantial
risk of bodily injury to the public servant . . . or employs
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means justifying or requiring substantial force to overcome the
resistance.” (Emphasis added.).
The district court treated Nelson's inartfully drafted
pro se complaint as stating a claim under section 1983 and
analyzed the complaint under the Fourth Amendment reasonableness
standard. The district court was undoubtedly correct in this
approach, and on the remand which will follow this opinion, the
district court should grant Nelson leave to amend his complaint
to assert his claims under section 1983 and the Fourth Amendment.
See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871
(1989); United State v. Johnstone, No. 95-5833, slip op. at 6-9.
(3d Cir. Feb. 24, 1997); In re City of Philadelphia Litig., 49
F.3d 945, 962 (3d Cir.), cert. denied, 116 S.Ct. 176 (1995). A
Fourth Amendment reasonableness inquiry is objective, so the
question in this case is whether Jashurek's actions in
effectuating the arrest were objectively reasonable without
regard for his underlying intent or motivation. See Johnstone,
slip op. at 7.
We have read the charge to the jury delivered in the
state criminal case and note that the trial judge, in accordance
with section 5104, told the jury that if Nelson's actions “did
not justify substantial force by [Jashurek], you must find Mr.
Nelson not guilty.” App. at 122. Clearly, therefore, inasmuch
as the jury found Nelson guilty and therefore must have concluded
that Jashruek was justified in using "substantial force," Heck v.
Humphrey would bar this action if Nelson's case depended on a
demonstration that Jashurek was not justified in using
6
"substantial force" in arresting him. Our difficulty with the
district court's result is that the fact that Jashurek was
justified in using "substantial force" to arrest Nelson does not
mean that he was justified in using an excessive amount of force
and thus does not mean that his actions in effectuating the
arrest necessarily were objectively reasonable. In short, there
undoubtedly could be "substantial force" which is objectively
reasonable and "substantial force" which is excessive and
unreasonable.
Yet a finding that Jashurek used excessive "substantial
force" would not imply that the arrest was unlawful and thus the
Supreme Court's example of how Heck v. Humphrey can bar a civil
action is not applicable here. Rather, we believe that the
Supreme Court intended to demonstrate that a civil suit for an
unreasonable seizure predicated on a false arrest would be barred
so long as a conviction for resisting the same arrest remained
unimpaired. But this case is different because Nelson does not
charge that Jashurek falsely arrested him. Instead, Nelson
charges that Jashurek effectuated a lawful arrest in an unlawful
manner. Accordingly, while we do not doubt that even on the
facts as presented by Nelson it will be difficult for him to
establish liability in this case, we do not see why a judgment in
his favor would throw the validity of his conviction into doubt.
Cf. Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)
("Because a successful section 1983 action for excessive force
would not necessarily imply the invalidity of Smithart's arrest
or conviction [for assault with a deadly weapon during a traffic
7
stop], Heck does not preclude Smithart's excessive force
claim."). Consequently, Heck v. Humphrey does not bar this case,
and we cannot affirm the order of the district court on the
authority of that case.
We add an important caveat. The proceedings in the
district court must go forward on the basis that Nelson's
conviction was valid unless the conviction is impaired in other
proceedings such as a reversal on direct appeal, expungement by
executive order, a declaration of invalidity in a state
proceeding, or the issuance of a writ of habeas corpus by a
federal court under 28 U.S.C. § 2254. Heck v. Humphrey, 512 U.S.
at , 114 S.Ct. at 2372; see Mosley v. Wilson, 102 F.3d 85,
91-92 (3d Cir. 1996); Smith v. Holtz, 87 F.3d 108, 112 (3d Cir.
1996), cert. denied, 117 S.Ct. 611 (1996). Therefore, in the
absence of any such impairment, if this case reaches trial, the
trier of fact must be aware that Jashurek was justified in using
"substantial force" in arresting Nelson. Otherwise there would
be a danger that in returning a general verdict against Jashurek
predicated on a finding that he used excessive force, the trier
of fact might base its verdict on findings not consistent with
the conclusion the jury reached in the criminal case, i.e., that
Jashurek was justified in using "substantial force" to arrest
Nelson.
Heck v. Humphrey precludes the return of a verdict in
this civil case on the basis of a finding by the jury the
Jashurek was not entitled to use substantial force to arrest
Nelsn as a verdict reached on that basis would be inconsistent
8
with Nelson's conviction. See Lal v. Borough of Kennett Square,
935 F. Supp. 570, 574-75 (E.D. Pa. 1996); Shelton v. Macey, 883
F. Supp. 1047, 1050 (E.D. Pa. 1995). In essence, then, the
guiding principle on the remand should be taken from Restatement
(Second) of Torts § 133 (1965): “If the means employed by the
actor for the purpose of effecting the arrest or recapture of
another, or of maintaining the actor's custody of him, are in
excess of those which he is privileged to use . . . the actor is
liable for only so much of the force as is excessive.” We
reiterate that Nelson's conviction establishes that Jashurek was
privileged to use substantial force. We leave it to the district
court on remand to determine whether it will instruct the jury
that Nelson was convicted of resisting arrest or whether the
court merely will tell the jury that Jashurek was justified in
using substantial force to arrest Nelson.
In reaching our result we take note of Simpson v. City
of Pickens, 887 F. Supp. 126 (S.D. Miss. 1995). The district
court in Simpson held that even if a defendant in a criminal
action was convicted validly of resisting arrest, the criminal
defendant was not necessarily barred from bringing a section 1983
excessive force action under the Fourth and Fourteenth Amendments
because “it is possible for a finding that [the defendant] was
resisting arrest to coexist with a finding that the police used
excessive force to subdue him.” Id. at 129. We are in accord
with the Simpson analysis.
Jashurek presents an alternative ground to affirm,
urging here, as he did in the district court, that he is entitled
9
to summary judgment on the basis of qualified immunity. While we
will assume that if the district court had denied Jashurek's
motion for summary judgment on the basis of qualified immunity
and he then appealed we could have exercised jurisdiction
pursuant to the collateral order doctrine, Mitchell v. Forsyth,
472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985), the district
court never ruled expressly on the qualified immunity defense for
it granted Jashurek summary judgment on the basis of Heck v.
Humphrey alone. Furthermore, in these circumstances, we cannot
say that the court inferentially denied the motion for summary
judgment to the extent that Jashurek predicated it on a claim of
qualified immunity. Cf. Musso v. Hourigan, 836 F.2d 736, 741 (2d
Cir. 1988) ("[I]nterlocutory review is appropriate when a
district court denies a motion for summary judgment without
addressing a proffered qualified immunity defense."). Thus, even
if we disregard the fact that Jashurek understandably has not
filed a notice of appeal, we cannot regard this case as an appeal
from the denial of a motion for summary judgment on the grounds
of qualified immunity, and consequently, we do not have
jurisdiction on the basis of the collateral order doctrine.
Instead, as Jashurek correctly recognizes, brief at 14,
he raises qualified immunity as an alternative ground to affirm,
and we consider the defense only on that basis. After a careful
review of the matter we have concluded that we should not
consider the qualified immunity defense in the first instance,
particularly as genuine disputes of material facts may exist with
respect to it. See Johnson v. Jones, 115 S.Ct. 2151 (1995). Of
10
course, Jashurek is free to renew his motion for summary judgment
on the basis of qualified immunity on the proceedings on the
remand in the district court.
III. CONCLUSION
In closing we emphasize that we have made a narrow
ruling on the law in this case. Thus, we do not suggest that
Nelson ultimately may be able to recover nor do we render any
opinion on the validity of Jashurek's qualified immunity defense
or whether he used excessive force. Nevertheless, in view of our
conclusions, we will reverse the judgment of September 19, 1996,
to the extent that it granted Jashurek summary judgment under
Heck v. Humphrey and will remand the case to the district court
for further proceedings consistent with this opinion.
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