Wheeler v. Scarafiotti

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 8 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GEORGE WHEELER, individually
and as parent and next friend of Kirby
Wheeler, a minor; BRAD ALPERS;
DIANE DUCHARME, as parent and
next friend of Steven Ducharme,
a minor,
Plaintiffs-Appellants,
v. Nos. 02-2297 & 02-2345
(D.C. No. CIV-01-1164 JP/WWD)
TERRY SCARAFIOTTI; PAT (D. N.M.)
BARNCASTLE; LARRY BELL,
in their personal capacity acting under
color of state law,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiffs George Wheeler, individually and as parent and next friend of
Kirby Wheeler, Brad Alpers, and Diane Ducharme, appearing as parent and next
friend of Steven Ducharme, (hereinafter “Wheeler”) appeal the district court’s
dismissal of their 42 U.S.C. § 1983 civil rights complaint against defendants
Terry Scarafiotti, Pat Barncastle, two officers of the New Mexico Game and Fish
Department, and Larry Bell, the Department’s Director. Wheeler alleges that
Officer Scarafiotti used excessive force in connection with his investigation of a
hunting incident, and that Officer Barncastle failed to train him properly;
moreover, he contends that Scarafiotti maliciously prosecuted him, and that
Director Bell failed to take action to prevent the criminal prosecution. In separate
grants of partial summary judgment, the district court ruled that defendants were
entitled to qualified immunity with respect to the excessive force claim, and that
Heck v. Humphrey , 512 U.S. 477, 484 (1994), rendered Wheeler’s malicious
prosecution claim not cognizable under § 1983. Exercising jurisdiction under 28
U.S.C. § 1291, 1
we affirm.
1
Plaintiffs filed a premature notice of appeal on October 22, 2002, from the
district court’s grant of partial summary judgment on the malicious prosecution
claim. This court then issued a show cause order informing the parties that unless
the district court either certified the dismissed claim under Fed. R. App. P. 54(b)
or explicitly adjudicated the remaining claims within thirty days, the appeal would
be dismissed. On November 21, 2002, the district court entered partial summary
judgment dismissing the remaining claims. Under Lewis v. B.F. Goodrich Co. ,
850 F.2d 641, 645 (10th Cir. 1988) (en banc), plaintiffs’ premature filing on
(continued...)
2
I
On September 17, 2000, Wheeler and Alpers went antelope hunting with
two minors. Wheeler drove his pickup truck, Alpers was a passenger, and the
children rode in the back of the truck. During the ride, one of the children shot at
an antelope from the truck’s bed. New Mexico Game and Fish Department
officers, one of whom was Officer Scarafiotti, witnessed the incident from
approximately one mile away and began to drive after the truck to effectuate a
stop. Wheeler was apparently unaware that the officers were following him and
failed to pull over immediately. The officers lost visual contact with Wheeler’s
truck temporarily, but they eventually caught up to the truck and pulled it over.
Upon stopping the truck, the officers crouched behind the doors of their
vehicle, and Officer Scarafiotti loudly requested that the truck’s passengers raise
their hands above their heads. The officers accused Wheeler of attempting to
evade and elude them and ultimately cited him for that offense as well as for
aiding and abetting the child in firing from the vehicle, and for driving off of an
established road. Acquitted on the charges of aiding and abetting and the charge
1
(...continued)
October 22, 2002 of a notice of appeal was “ripen[ed] and sav[ed]” by the district
court’s order of November 21, 2002, and the appeal now meets the “finality
requirement” of 28 U.S.C. § 1291.
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of evading, eluding, and obstructing, Wheeler ultimately was convicted only on
the charge of driving off of an established road.
Wheeler brought two separate claims against the officers. First, Wheeler
claimed that Officer Scarafiotti used excessive force when he requested that they
raise their hands while placing his hand on or near his gun holster, and when he
threatened to incarcerate Alpers. Granting defendants’ motion to dismiss on this
issue, the district court found that plaintiffs failed to meet their burden of
demonstrating that Officer Scarafiotti’s conduct violated clearly established
rights.
In addition to the excessive force claim, Wheeler brought a malicious
prosecution claim under § 1983, alleging that Officer Scarafiotti knowingly made
false statements in his incident report and at the criminal trial in an attempt to
obtain a conviction of Wheeler for evading, eluding and/or obstructing an officer
and for driving off-road. Wheeler also alleged that Officer Scarafiotti attempted
to influence his fellow officer to alter his incident report to corroborate his report.
Defendants filed a motion for partial summary judgment asserting that
Heck v. Humphrey barred Wheeler’s malicious prosecution claim since a
judgment in his favor would necessarily imply the invalidity of the conviction for
driving off-road. Agreeing, the district court found that “the charges were not
severable” and “arose from the same events and were prosecuted on the same
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finding of probable cause and the same testimony at trial.” Aplee. App. at 103.
The district court ultimately concluded that because the same incident report and
testimony led to the charges of driving off-road and evading and eluding, “[i]f
Wheeler is successful in convincing a jury that law enforcement officers falsified
reports in order to prosecute a charge of evading, eluding and obstructing, and
that the prosecution of this charge involved perjured testimony, the conviction for
driving off-road would necessarily be called into question because it was based on
the same information and the same testimony.” Id.
II
We review a grant of summary judgment de novo, applying the same legal
standard used by the district court pursuant to Fed. R. Civ. P. 56(c). On summary
judgment, issues concerning all other elements of the claim become immaterial if
the plaintiff does not come forward with sufficient evidence on any essential
element of the cause of action. Adler v. Wal-Mart Stores, Inc. , 144 F.3d 664, 670
(10th Cir. 1998).
With respect to Wheeler’s excessive force claim, in civil suits for money
damages, government officials are entitled to qualified immunity “unless their
conduct violated clearly established . . . constitutional rights of which a
reasonable person would have known.” Anderson v. Creighton , 483 U.S. 635,
5
648 (1987). We review the district court’s resolution of the qualified immunity
issue de novo. Farmer v. Perrill , 288 F.3d 1254, 1259 (10th Cir. 2002).
Excessive force claims are analyzed under the “objective reasonableness”
standard of the Fourth Amendment, which asks “whether the officers’ actions are
‘objectively reasonable’ in light of the facts and circumstances confronting them,
without regard to their underlying intent or motivation.” Graham v. Connor , 490
U.S. 386, 388 (1989). Whether an officer’s conduct was reasonable is evaluated
from the viewpoint of a reasonable officer at the scene, recognizing that
split-second decisions often must be made under dangerous and uncertain
conditions. Medina v. Cram , 252 F.3d 1124, 1131 (10th Cir. 2001). In assessing
the reasonableness of force used by an officer, we consider the severity of the
crime, the suspect’s potential threat to the safety of officers and others, and
whether the suspect attempted to resist or evade arrest. Olsen v. Layton Hills
Mall , 312 F.3d 1304, 1314 (10th Cir. 2002).
Although an excessive force claim under the Fourth Amendment may exist
where there has been no physical contact, a plaintiff must nonetheless
demonstrate that the amount of force used was “sufficiently egregious to be of
constitutional dimensions.” Martin v. Bd. of County Comm’rs , 909 F.2d 402,
406-07 (10th Cir. 1990) (citing Wise v. Bravo , 666 F.2d 1328, 1335 (10th Cir.
1981)). Wheeler fails to make such a showing. There is no allegation of bodily
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or physical injury, and Scarafiotti’s alleged conduct — screaming at the
defendants to raise their hands, having his hand near his holstered weapon, and
threatening possible incarceration — was objectively reasonable under the facts
and circumstances surrounding the stop of Wheeler’s truck.
Officer Scarafiotti was authorized to detain plaintiffs for questioning and
investigation because he had a reasonable and articulable suspicion they had
committed a crime; indeed, the minor who fired the weapon admitted culpability
in juvenile court for the crime of firing at a protected species from within a
vehicle, and Wheeler was convicted of driving off-road. See Terry v. Ohio , 392
U.S. 1, 27 (1968); see also Atwater v. City of Lago Vista , 532 U.S. 318, 354
(2001) (holding that the Constitution tolerates full custodial arrests for offenses
that are only punishable by fines).
Further, the minor’s conduct, which precipitated the investigation and
ultimate stop, involved illegally shooting a loaded firearm. It was therefore
reasonable for Officer Scarafiotti to perceive a risk of injury or danger to himself,
his fellow officer, or others. It is undisputed, moreover, that Officer Scarafiotti
did not touch or even display his weapon. Such a proper display of lawful
authority, on these facts, simply does not violate the Fourth Amendment. See
Holland ex rel. Overdorff v. Harrington , 268 F.3d 1179, 1191 (10th Cir. 2001),
cert. denied , 535 U.S. 1056 (2002). Because the facts alleged by plaintiffs are
7
insufficient to state a constitutional violation, the district court properly granted
defendants qualified immunity. See Saucier v. Katz , 533 U.S. 194, 201 (2001).
III
To state a cause of action for malicious prosecution, in addition to alleging
the necessary elements of a malicious prosecution claim, a plaintiff must allege
and prove that the criminal proceeding that gave rise to the action “has been
reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus.” Heck , 512 U.S. at 486–87.
To ascertain whether a § 1983 claim for damages is cognizable, therefore,
the district court must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or
sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already
been invalidated. But if the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed, in the absence of some other
bar to the suit.
Id. at 487 (footnote omitted) (emphasis added). Because we agree with the
district court’s conclusion that Heck v. Humphrey bars Wheeler’s claim, we
affirm the district court’s grant of summary judgment to defendants on the issue
of malicious prosecution.
8
Under the principles of Heck v. Humphrey , dismissal is proper if Wheeler’s
attempt to demonstrate malicious prosecution on the evading and eluding charge
to a jury would necessarily imply the invalidity of his outstanding conviction for
driving off-road. In an effort to avoid Heck ’s restrictions, Wheeler contends that
the charge on which he was convicted is wholly severable from the charge on
which he alleges malicious prosecution and thus would not necessarily imply its
invalidity. While it is true that evading and eluding is not the same offense as
driving off-road as a general matter, in this case the charges are not so easily
severable.
In the instant case, to the contrary, the district court found that the driving
off-road offense and the evading and eluding offense arose out of the same
events; moreover, the charges were based on the same finding of probable cause
and the same testimony at trial. Wheeler fails to introduce evidence to the
contrary, but rather attempts here to cast doubt on the same reports that led to his
conviction on the charge of driving off-road. Certainly an attempt to convince a
jury that the officers falsified the very reports that led to his conviction would
cast doubt on that conviction. Because success on a malicious prosecution claim
would necessarily imply the invalidity of the conviction for driving off-road,
therefore, Heck v. Humphrey requires that the claim be dismissed.
9
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
10