Strepka v. Thompson ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 16, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
MARK ALAN STREPKA,
Plaintiff - Appellant,
v. No. 19-1441
(D.C. No. 1:18-CV-02557-RBJ-STV)
MATTHEW R. THOMPSON, in his (D. Colo.)
official and individual capacity; MARCUS
A. VIGIL, in his official and individual
capacity,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and EID, Circuit Judges.
_________________________________
Pro se Plaintiff Mark Strepka appeals the district court’s judgment dismissing
his claims under 42 U.S.C. § 1983 and its order denying his postjudgment motion
that the court review his untimely objections to the magistrate judge’s
recommendation. We affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. Background
The district court’s dismissal was under Federal Rule of Civil Procedure
12(b)(6), so we assume the truth of Plaintiff’s adequately pleaded nonconclusory
factual allegations. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). We also
consider the contents of a recording of a 911 call and a video recording that are
referred to in Plaintiff’s complaint, because they are “referred to by the [P]laintiff
and central to his claim.” Prager v. LaFaver, 180 F.3d 1185, 1189 (10th Cir. 1999).
And we take judicial notice of Plaintiff’s Colorado state judgment of conviction, a
publicly filed record from another court “concerning matters that bear directly upon
the disposition of the case at hand,” United States v. Ahidley, 486 F.3d 1184, 1192
n.5 (10th Cir. 2007), and consider that document as well, see Gee v. Pacheco,
627 F.3d 1178, 1186 (10th Cir. 2010).
On December 9, 2016, a Post Office supervisor called 911 to report that a man
appeared to be passed out on the lobby floor and that a knife was sitting on a desk
with some other personal belongings. Defendants Matthew Thompson, a paramedic,
and Marcus Vigil, a Denver Police Department sergeant, were dispatched to the
scene. Plaintiff claims that Sergeant Vigil “grasped and wretched [his] left wrist and
arm areas in an arrest control hold also known as the twist lock and pain compliance
technique.” R. at 17 (emphasis omitted). While Sergeant Vigil restrained Plaintiff,
Mr. Thompson searched him without consent, finding a gun and methamphetamine.
In 2017, Plaintiff was sentenced in Colorado state court for possessing a
controlled substance and being a special offender because he possessed a firearm
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when he committed the drug offense. See Colo. Rev. Stat. §§ 18-18-403.5(1), (2)(a),
18-18-407(1)(d)(II) (2016).
Plaintiff filed this lawsuit in October 2018. Claim one alleges that both
Defendants unlawfully searched and seized him; claim two alleges that Sergeant
Vigil used excessive force; and claim three alleges that Sergeant Vigil unlawfully
arrested him. Defendants moved to dismiss under Rule 12(b)(6). The magistrate
judge concluded that claim one is barred under Heck v. Humphrey, 512 U.S. 477(1994), and that Sergeant Vigil is entitled to qualified immunity on the remaining
claims. The district court reviewed the magistrate judge’s recommendation de novo,
adopted it, and dismissed Plaintiff’s claims.
II. Discussion
We construe Plaintiff’s pro se pleadings and briefs liberally, but we may not
serve as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
The parties devote much of their briefs to arguing whether Plaintiff waived appellate
review of the merits because he did not timely object to the magistrate judge’s
recommendation. But we need not address that issue. A party’s “failure to timely
object to a magistrate’s report is not jurisdictional.” Hicks v. Franklin, 546 F.3d
1279, 1283 n.3 (10th Cir. 2008). And, on de novo review of the merits, we readily
conclude that the district court’s decision was correct. See Lincoln v. Maketa,
880 F.3d 533, 537 (10th Cir. 2018) (standard of appellate review).
We agree with the district court that claim one is barred by Heck, which holds
that a state prisoner may not sue for damages under § 1983 if a favorable judgment
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“would necessarily imply the invalidity of his conviction or sentence” unless the
prisoner shows “that the conviction or sentence has already been invalidated.”
512 U.S. at 487. Although Plaintiff now insists that his complaint “never contested
his conviction or sentence,” Aplt. Opening Br. at 11 (emphasis omitted), “it is
abundantly clear that [he] could not have been convicted” without the evidence found
during the search, “and thus a declaration that the search was unconstitutional would
undermine the convictions,” Garza v. Burnett, 672 F.3d 1217, 1220 (10th Cir. 2012).
Because Plaintiff does not allege that his state conviction has been invalidated, Heck
bars claim one at this time, and the district court properly dismissed the claim
without prejudice.
Claims two and three are barred by Sergeant Vigil’s qualified immunity. If a
defendant raises qualified immunity in a Rule 12(b)(6) motion, as Sergeant Vigil did,
“the court must dismiss the action unless the plaintiff shows that (1) the defendant
violated a statutory or constitutional right, and (2) the right was clearly established at
the time of the violation.” See A.N. ex rel. Ponder v. Syling, 928 F.3d 1191, 1196
(10th Cir. 2019) (internal quotation marks omitted). We may resolve a qualified-
immunity claim on either prong; we need not decide whether a violation occurred if
the right was not clearly established. See Lincoln, 880 F.3d at 537. Although “a case
directly on point” is not necessary to show that a right is clearly established,
“existing precedent must have placed the statutory or constitutional question beyond
debate.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (internal
quotation marks omitted).
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Claim two alleges that Sergeant Vigil used excessive force when he employed
a “twist lock” on Plaintiff. But he offers no precedent suggesting that the use of a
twist lock on someone found to possess a dangerous weapon, such as a knife, violates
a clearly established right. Indeed, relevant precedent suggests the opposite. Police
officers need not take unnecessary risks; they may “take such steps as are reasonably
necessary to protect their personal safety and to maintain the status quo during the
course of a Terry [v. Ohio, 392 U.S. 1 (1968),] stop.” United States v. Perdue, 8 F.3d
1455, 1462 (10th Cir. 1993) (brackets and internal quotation marks omitted).
As for claim three, Plaintiff argues that Sergeant Vigil unlawfully arrested him
because the use of the twist lock converted his detention into an arrest and there was
not probable cause to arrest him at that time. We disagree with the premise that he
was arrested when the twist lock was applied. “The use of firearms, handcuffs, and
other forceful techniques does not necessarily transform a Terry detention into a full
custodial arrest—for which probable cause is required—when the circumstances
reasonably warrant such measures.” United States v. Shareef, 100 F.3d 1491, 1502
(10th Cir. 1996) (brackets and internal quotation marks omitted); see also United
States v. Maguire, 359 F.3d 71, 75, 77–79 (1st Cir. 2004) (officers did not exceed the
bounds of a Terry stop when they wrestled the defendant to the ground to remove a
knife from his waistband). We have already noted the precedent that appears to
authorize the use of force in this case. More importantly, Sergeant Vigil is entitled to
qualified immunity on count three because there is no clearly established law that
Plaintiff was arrested when he was subjected to the twist lock.
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Finally, our decision that the district court was correct on the merits moots
(1) Plaintiff’s challenge to the denial of his postjudgment motion that the district
court consider his untimely objections to the magistrate judge’s report and (2) his
challenge to the denial of his motion to extend the objection deadline by 30 days. All
his arguments on the merits are unpersuasive and we have not relied on any
procedural bar.
III. Conclusion
We affirm the district court’s judgment and its postjudgment order. We grant
Plaintiff’s motion to proceed in forma pauperis.
Entered for the Court
Harris L Hartz
Circuit Judge
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