Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
6-20-2008
Lora-Pena v. FBI
Precedential or Non-Precedential: Precedential
Docket No. 07-3511
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"Lora-Pena v. FBI" (2008). 2008 Decisions. Paper 933.
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3511
________________
NELSON LORA-PENA,
Appellant
v.
FEDERAL BUREAU OF INVESTIGATION; UNITED
STATES MARSHAL SERVICE; DEPUTY US MARSHAL
ROBERT DENNEY; DEPUTY US MARSHAL JACK LEO;
DEPUTY US MARSHAL WILLIAM DAVID; SUP DEP US
MARSHAL THOMAS DAVIS; FUGITIVE
APPREHENSION TASK FORCE; TASK FORCE OFFICER
FLETCHER; TASK FORCE OFFICER DAILY; TASK
FORCE OFFICER BOWERS; STATE POLICE TROOPER
HAHN; UNITED STATES
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 06-cv-00442-SLR)
District Judge: Honorable Sue L. Robinson
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
June 10, 2008
Before: SLOVITER, BARRY
and NYGAARD, Circuit Judges
(Opinion Filed: June 20, 2008)
Nelson Lora-Pena
Canaan USP
P. O. Box 300
Waymart, PA 18474
Appellant
Seth M. Beausang, Esq.
Office of the U.S. Attorney
1007 North Orange Street, Suite 700
PO Box 2046
Wilmington, DE 19899
Counsel for Appellees
_______________________
OPINION
_______________________
PER CURIAM
This is an appeal from the District Court’s dismissal of
Nelson Lora-Pena’s civil complaint. For the following reasons,
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we will vacate the District Court’s order and remand the case for
further proceedings.
On July 20, 2006, Appellant, an inmate at United States
Penitentiary-Canaan, initiated a pro se civil action against a
Pennsylvania state trooper, various U.S. Marshals, the U.S.
Marshal Service, and the Federal Bureau of Investigation.1 The
action arises out of Lora-Pena’s April 9, 2005 arrest for
violating the terms of his supervised release imposed in the
District of Rhode Island. Lora-Pena alleged that, during the
arrest, officers repeatedly punched and kicked him after he fell
to the floor. The arresting officers testified that Lora-Pena had
1
Appellant’s action is a mix of Bivens and 42 U.S.C. §
1983 claims. See Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens,
the Supreme Court recognized a private cause of action to
recover damages against a federal agent for violations of
constitutional rights. Therefore, constitutional claims against
federal officers are properly brought under Bivens and any
claims against state officers are § 1983 claims.
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both resisted arrest and assaulted them. Deputy Marshal Jack
Leo described Lora-Pena as “scratching,” “clawing,” and
“punching” him as well as using his two pit bulls to assault two
deputy United States Marshals. Leo admitted to striking Lora-
Pena, but only to an extent necessary to protect his firearm and
to subdue him. As a result of the circumstances of the arrest,
Lora-Pena was found guilty by a jury of three counts of assault
on a federal officer in violation of 18 U.S.C. § 111 and one
count of resisting arrest. See United States v. Lora-Pena, 227
Fed.Appx. 162 (3d Cir. 2007) (affirming Appellant’s
conviction).
In this civil suit, Lora-Pena alleged that Leo used
excessive force against him during the arrest in violation of the
Eighth Amendment. Further, Lora-Pena claimed that officers
violated his Fifth and Fourteenth Amendment rights to due
process of law, “including the right to be free from unjustified
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and excessive force utilized by federal, state or local police.”
The District Court dismissed Appellant’s complaint for failure
to state a claim. Fed. R. Civ. P. 12(b)(6).
Our standard of review of the District Court’s dismissal
under Rule 12(b)(6) is plenary. Atkinson v. LaFayette College,
460 F.3d 447, 451 (3d Cir. 2006). Plenary review requires us to
accept as true all allegations in the complaint and all reasonable
inferences that can be drawn therefrom, and view them in the
light most favorable to the plaintiff. See Evancho v. Fisher, 423
F.3d 347, 350 (3d Cir. 2005).
We begin by noting that the District Court properly
analyzed Lora-Pena’s excessive force claims under the Fourth
Amendment. See Graham v. Connor, 490 U.S. 386, 398-99
(1989) (Eighth Amendment standard applies only after the State
has complied with constitutional guarantees traditionally
associated with criminal prosecutions).
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The Supreme Court has held that, if judgment in favor of
a plaintiff in a civil suit under 42 U.S.C. § 1983 would
necessarily imply the invalidity of a prior criminal conviction,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
invalidated. See Heck v. Humphrey, 512 U.S. 477, 484-87
(1994).2 The trial judge instructed the jury in Lora-Pena’s
criminal case that in order to find Lora-Pena guilty of assaulting
a federal officer, they had to determine that the officer was
acting in the performance of his official duties. The District
Court reasoned that Heck barred Lora-Pena’s claims because an
officer who uses excessive force is not, in good faith,
performing his official duties. The District Court also found that
2
Although Heck involved a § 1983 action by a state
prisoner, the reasoning in Heck has been applied to bar Bivens
claims. See, e.g., Williams v. Hill, 74 F.3d 1339, 1341 (D.C.
Cir. 1996) (per curiam).
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Lora-Pena’s excessive force claim was inextricably intertwined
with his convictions for resisting arrest and assaulting federal
officers and therefore must be dismissed pursuant to Heck.
We cannot agree with the District Court that Lora-Pena’s
convictions for resisting arrest and assaulting federal officers
bars his civil suit at the Rule 12(b)(6) stage. Despite the
government’s argument to the contrary, the question of whether
the officers used excessive force was not put before the jury.
The jury only determined whether the officers were acting
within the scope of their official duties. Nowhere in the jury
instructions did the trial judge state that the jury must determine
whether the officers used excessive force against Lora-Pena. It
is conceivable that a law enforcement officer, acting within the
scope of his official duties, may use force that is excessive in
effectuating a lawful arrest. See Nelson v. Jashurek, 109 F.3d
142, 145-146 (3d. Cir. 1997). In Nelson, the plaintiff had been
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convicted in state court of resisting arrest. Under Pennsylvania
law, to convict the plaintiff, the jury had to find that the officer
involved “was justified in using ‘substantial force.’” Nelson,
109 F.3d at 145. In reversing the district court’s grant of
summary judgment, we determined 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 unreasonable.” Id. Unlike
in Heck, Nelson was not arguing that Jashurek falsely arrested
him but rather “that Jashurek effectuated a lawful arrest in an
unlawful manner.” Id. at 146 (emphasis added). Similarly, Lora-
Pena’s convictions for resisting arrest and assaulting officers
would not be inconsistent with a holding that the officers, during
a lawful arrest, used excessive (or unlawful) force in response
to his own unlawful actions.
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We are not suggesting that Lora-Pena will be able to
recover damages, only that the rationale of Heck does not
present an absolute bar to his claim. In order to succeed on his
excessive force claim, Lora-Pena must still show that the
officers’ actions were unreasonable in light of the circumstances
of the arrest. See Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir.
2004). For the reasons stated above, we will vacate the District
Court’s order entered on July 16, 2007 and remand the case for
further proceedings consistent with this opinion.
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