16‐3764
Shapard v. Attea
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 12th day of October, two thousand
seventeen.
PRESENT: DENNIS JACOBS,
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
CHRISTOPHER SHAPARD,
Plaintiff‐Appellant,
‐v.‐ 16‐3764
JOHN ATTEA, CORRECTION OFFICER, EDWIN
MENDEZ, CORRECTION OFFICER, ROBERT KYLE,
CORRECTION OFFICER,
1
Defendants‐Appellees,
AL HERDZIK, LIEUTENANT, MARTIN KEARNEY,
CAPTAIN, ANTHONY ZON, SUPERINTENDENT,
ROBERT A. KIRKPATRICK, SUPERINTENDENT,
THOMAS SCHOELLKOPF, COMMISSIONER’S
HEARING OFFICER, DONALD SELSKY, DIRECTOR,
SPECIAL HOUSING UNIT,
Defendants.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: LUKE X. FLYNN‐FITZSIMMONS
(Cameron S. Friedman, on the brief),
Paul, Weiss, Rifkind, Wharton &
Garrison LLP, New York, NY.
FOR APPELLEES: PATRICK A. WOODS (Barbara D.
Underwood, Solicitor General,
Andrea Oser, Deputy Solicitor
General, on the brief), Assistant
Solicitor General, for Eric T.
Schneiderman, Attorney General of
the State of New York, New York,
NY.
Appeal from a judgment of the United States District Court for the Western
District of New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
VACATED and REMANDED.
2
Christopher Shapard, an inmate in the New York State prison system,
appeals the district court’s sua sponte dismissal of his claims against
defendants‐appellees, three corrections officers at the Wende Correctional
Facility.1 Shapard alleged that the officers used excessive force in violation of 42
U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. The
United States District Court for the Western District of New York (Siragusa, J.)
dismissed the claims, ruling that they were barred by Heck v. Humphrey, 512
U.S. 477 (1994). We assume the parties’ familiarity with the underlying facts, the
procedural history, and the issues presented for review.
Shapard’s complaint, filed pro se in 2008, alleges that on June 7, 2005, the
three officers punched and kicked him and beat him with a baton, causing serious
physical injuries that required medical treatment. The complaint alleges
excessive force in retaliation for grievances Shapard had filed. The complaint
also states that prison officials found after a hearing that Shapard had initiated the
incident by assaulting one of the officers, John Attea. The complaint itself
neither admits nor denies this finding. However, attached to the complaint are
various documents that were produced in connection with the incident (including
Shapard’s grievance submissions and records from the prison disciplinary
process), some of which reflect Shapard’s contemporaneous denial of
wrongdoing. In addition, during his deposition in 2010, Shapard (who was not
represented by counsel at the time) denied assaulting Officer Attea.
After the altercation with the officers (but before bringing the present suit),
Shapard was charged with second degree assault, in violation of N.Y. Penal Law
§ 120.05(7). He pleaded guilty, and admitted that “on or about June 7th of the
year 2005 [he] was in the Wende Correctional Facility . . . and while therein set in
forth actions that ultimately led to the injury of . . . Correction Officer John Attea.”
App’x at 1137‐38. Shapard later made an unsuccessful attempt to withdraw his
plea and vacate his conviction.
1 Shapard also brought claims against other prison officials. Those claims were
dismissed on separate grounds and are not at issue in this appeal.
3
In 2015, approximately five years after the deadline for dispositive motions
in Shapard’s § 1983 action, the officers moved for leave to file a motion for
summary judgment, arguing that Shapard’s excessive force claims were barred by
Heck because they conflicted with his guilty plea. Defense counsel explained
that he “previously failed to recognize the law related to [Shapard’s] plea of
guilty to assaulting Attea and the ramifications such plea would have on the
trial.” App’x at 961. The district court found no good cause for the delay and
denied the motion. The court nonetheless dismissed Shapard’s claims sua
sponte. It ruled that although “Heck does not necessarily bar excessive force
claims where the plaintiff was convicted of assaulting officers during the same
incident[,]” Shapard’s version of the facts “clearly impl[ies] the invalidity of his
assault conviction, which has not been set aside, and consequently [his claims] are
barred by Heck[.]” Shapard v. Attea, No. 08‐CV‐6146 (CJS), 2016 WL 4001362, at
*4–*5 (W.D.N.Y. July 26, 2016), reconsideration denied, 2016 WL 5871360
(W.D.N.Y. Oct. 7, 2016).
We review de novo a district court’s sua sponte dismissal of claims,
accepting the facts alleged in the complaint as true and drawing all inferences in
the plaintiff’s favor. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). To
withstand dismissal, a complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). We will reverse the dismissal if “a liberal reading of the complaint gives
any indication that a valid claim might be stated.” Larkin v. Savage, 318 F.3d
138, 139 (2d Cir. 2003) (per curiam).
Under Heck, a claim that, if successful, would “necessarily imply the
invalidity” of the plaintiff’s prior state conviction is “not cognizable under § 1983”
unless that conviction has already been invalidated. Heck, 512 U.S. at 487.
Shapard’s excessive force claims are not Heck‐barred because their favorable
adjudication would not “necessarily imply the invalidity” of his prior assault
conviction. First, the elements of excessive force and second degree assault
under N.Y. Penal Law § 120.05(7) are not incompatible.2 See Griffin v. Crippen,
2 The elements of second degree assault under N.Y. Penal Law § 120.05(7) are: (1)
4
193 F.3d 89, 92 (2d Cir. 1999) (holding that appellant’s conviction for assaulting
prison guards was not incompatible with finding that guards responded with
excessive force); Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008) (“A contention
that a guard struck back after being hit is compatible with Heck.”).
Second, the complaint does not deny that Shapard assaulted Officer Attea.
Although attachments to the complaint reflect Shapard’s previous denials, the
complaint does not necessarily adopt those denials (which were made years
earlier, before Shapard pleaded guilty). A complaint does not necessarily adopt
the statements contained in its attachments. See Gant v. Wallingford Bd. of
Educ., 69 F.3d 669, 675 (2d Cir. 1995) (holding that “[i]t was [] error for the district
court to assume that plaintiffs’ complaint adopted” the statements made in an
attachment). It is improper to assume adoption when the complaint was filed
pro se and the assumption results in dismissal. See Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474‐75 (2d Cir. 2006) (requiring that “submissions of a pro
se litigant [] be construed liberally and interpreted to raise the strongest
arguments that they suggest” because courts have an “obligation . . . to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of their lack of legal training” (citations and quotation
marks omitted)).
Shapard’s claims do not depend on the invalidity of his assault conviction.
His counsel (who was retained in February 2014) argued at a March 2014 court
conference that although Shapard believed that he did not assault Officer Attea,
the use of force applied by the officers would have been excessive even if he had.
while confined in a correctional facility, (2) after having been charged with or
convicted of a crime, (3) an individual causes physical injury to another person,
(4) with intent to cause such injury. See N.Y. Penal Law § 120.05(7). To state a
claim for excessive force, an inmate must establish that a prison official applied
force “maliciously and sadistically to cause harm” rather than “in a good‐faith
effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6, 7
(1992).
5
Shapard reiterated this argument in response to the officers’ motion for leave to
file for summary judgment:
Plaintiff is aware that the res judicata effect of his guilty plea may
prevent him from testifying as to whom initiated the incident that is
the subject of this action. However, nothing in Plaintiff’s guilty plea
or allocution precludes him from testifying as to what happened
next, including testifying as to force used against him by the
Defendants and testifying as to the injuries he sustained.
App’x at 1279.
Shapard’s plausible claim of excessive force can be reconciled with his
assault of Officer Attea, and is therefore not barred by Heck. On remand, the
district court may take appropriate steps to prevent Shapard from disputing the
assault, including limiting his testimony and instructing a jury that he assaulted
Officer Attea. See Gilbert, 512 F.3d at 902 (“It would have sufficed to tell the
jurors that Gilbert struck the first blow during the fracas at the chuckhole, that
any statements to the contrary by Gilbert (as his own lawyer) or a witness must be
ignored, and that what the jurors needed to determine was whether the guards
used more force than was reasonably necessary to protect themselves from an
unruly prisoner.”).
For the foregoing reasons, we hereby VACATE the judgment of the district
court and REMAND for further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
6