Johnson v. Pottawotomie Tribal Police Department

FILED
United States Court of Appeals
Tenth Circuit
February 9, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
ROBERT THOMAS JOHNSON, SR.,
Plaintiff-Appellant, No. 10-3242
v. (D. of Kan.)
POTTAWOTOMIE TRIBAL POLICE (D.C. No. 5:10-CV-03104-SAC)
DEPARTMENT, CHIEF SCOTT,
CHIEF BOSWELL, and JOHN
HURLA, K-9 Officer,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges. **
Robert Johnson, a federal prisoner appearing pro se, appeals the dismissal
of his claims brought under 42 U.S.C. § 1983. The district court dismissed
Johnson’s complaint under 28 U.S.C. § 1915A as frivolous and for failure to state
a claim under § 1983. Having jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
I. Background
Johnson’s § 1983 claims arise from incidents that occurred in August 2007
after he left the parking lot of the Prairie Band Casino and Resort, located in
Kansas. While Johnson’s car was parked in the casino parking lot, Defendant
John Hurla—then a K-9 officer in the Pottawotomie 1 Tribal Police Department
(PTPD)—deployed a drug dog to Johnson’s vehicle and the dog indicated the
presence of illegal narcotics. Based on the probable cause arising from the drug
dog’s deployment, Johnson was stopped, his vehicle was searched, and he was
arrested. Other officers assisted with the drug-dog deployment, Johnson’s arrest,
and the search of his vehicle. Illegal drugs and drug paraphernalia were found in
Johnson’s vehicle.
Johnson was charged under tribal law for possession of narcotics, but in
February 2008, Kansas dismissed the charges. In March 2008, the United States
unsealed an indictment against Johnson, charging him with violating 21 U.S.C.
§ 841. After two suppression hearings and shortly before his trial, Johnson
1
From our review of the record, it appears three variations of
“Pottawotomie” have been used in this case. Johnson—in his complaint—and the
district court—on its docket—use “Pottawotomic.” See R., Vol. I at 1, 10. The
district court—in its show-cause order and order dismissing Johnson’s
complaint—uses “Pottawotomie.” See R., Vol. I at 98, 127. The tribal nation and
the Prairie Band Tribal Police use “Potawatomi.” See R., Vol. I at 61, 64. In this
opinion, we assume all three spellings refer to the same entity and will refer to
the tribe using the spelling in the district court’s order, “Pottawotomie.”
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entered into a plea agreement, pleaded guilty, and was sentenced to thirty-eight
months’ imprisonment.
Johnson brought this § 1983 suit against the PTPD and PTPD employees
Chief Scott, Chief Boswell, and Hurla, alleging that certain actions committed by
the PTPD and Hurla before and during Johnson’s stop, search, and arrest deprived
Johnson of his constitutional and civil rights. His claims rested on allegations
that the PTPD improperly hired and employed Hurla as a K-9 officer and a
dispatcher because Hurla was ineligible as a matter of Kansas state law for
certification as a law enforcement officer.
In October 2001, when Hurla was hired by the PTPD, he was subject to a
two-year diversion agreement—which he disclosed on his employment
application—related to charges from 1999 of burglary and felony theft. From
May 2007 through April 2009, Hurla was a K-9 officer with the PTPD and at
other times he was a dispatcher and an officer. In June 2009, the Kansas
Commission on Peace Officers Standards and Training issued a final order
retroactively revoking Hurla’s law enforcement officer certification. While the
Commission noted Hurla’s exemplary performance, Kansas state law provides
that individuals who were diverted from felony crimes after July 1995 are
ineligible to serve as law enforcement officers. See K AN . S TAT . A NN . § 74-
5605(a)(3).
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In his § 1983 complaint, Johnson contended (1) Hurla lacked legal
authority and jurisdiction to perform the drug-dog deployment that provided
probable cause for Johnson’s stop, search, and arrest; (2) the defendants conspired
to suppress exculpatory information regarding Hurla’s ineligibility and Johnson
only discovered this “new evidence” in February 2010; (3) defendants provided
false, fraudulent, and misleading evidence to the federal grand jury and district
court; and (4) defendants Scott and Boswell committed outrageous misconduct,
misused positions of public trust, obstructed the legal process, and used their
position to conceal illegal acts and misconduct when knowingly hiring a felon
(Hurla), continuing to employ Hurla after the revocation of his certification, and
improperly permitting Hurla to access police records, weapons, and other items
only available to the police.
Because Johnson was a prisoner seeking redress from a governmental entity
and governmental officers or employees, the district court screened his complaint
under 28 U.S.C. § 1915A to determine if any portion was frivolous, failed to state
a claim upon which relief may be granted, or sought relief from a defendant
immune from such relief. The district court determined Johnson’s complaint was
subject to dismissal because (1) the claims relating to his criminal conviction may
only be raised in a habeas corpus petition; (2) the claims for money damages
based on federal law were barred either by Heck v. Humphrey, 512 U.S. 477(1994) or the applicable statute of limitations; and (3) the other claims did not
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allege facts demonstrating a violation of § 1983 and, at most, amounted to
violations of Kansas state law. Rather than immediately dismissing the
complaint, the court gave Johnson thirty days to show cause why it should not be
dismissed. Johnson submitted a reply, and the court dismissed the complaint
under § 1915A as frivolous and for failing to state a claim under § 1983.
On appeal, Johnson makes several arguments (1) defendants fraudulently
concealed evidence of Hurla’s prior felony record and the revocation of his law
enforcement certificate; (2) the claims the district court found were not premature
under Heck are not time-barred because Johnson’s § 1983 complaint was filed
within two years of his discovery of the revocation of Hurla’s law enforcement
certificate; (3) Johnson has standing to pursue claims against the defendants for
their illegal practices regarding Hurla’s hiring and employment; (4) probable
cause for Johnson’s arrest was unlawfully established and his arrest, search, and
seizure were illegal because Hurla, at the time, was ineligible under Kansas law to
be a law enforcement officer and, later, had his law enforcement certificate
retroactively revoked; and (5) Johnson’s § 1983 claims for damages relating to
Kansas’s decision to charge him with state law offenses, but ultimately not
prosecute, should not be barred by Heck.
II. Discussion
Johnson is proceeding pro se, and thus we construe his pleadings liberally.
See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). After a careful review
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of the record, we find the district court correctly dismissed Johnson’s complaint
under 28 U.S.C. § 1915A because the complaint was frivolous and failed to state
a claim under § 1983 upon which relief may be granted.
A. Claims Barred by Heck
After careful consideration, we find all of Johnson’s claims are barred by
Heck v. Humphrey, 512 U.S. 477 (1994), because each necessarily implies the
invalidity of Johnson’s sentence.
Under Heck, a plaintiff cannot assert a § 1983 claim that, if successful,
would necessarily imply the invalidity of a previous conviction or sentence,
unless the plaintiff can demonstrate favorable termination of the prior conviction
or sentence. Id. at 487. As the Supreme Court held:
In order to recover damages for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983
plaintiff must prove that the conviction or sentence 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.
Id. at 486–87. The purpose behind Heck is “to prevent litigants from using a
§ 1983 action, with its more lenient pleading rules, to challenge their conviction
or sentence without complying with the more stringent exhaustion requirements
for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007).
Underlying all of Johnson’s claims is the allegation that he was subject to
an illegal arrest and search without probable cause because Hurla was not
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qualified to be a law enforcement officer under Kansas state law. Johnson argues
that, since Hurla’s law enforcement certificate was retroactively revoked, “any
actions he undertook [as a K-9 officer] were not only illegal, but were also
unconstitutional.” Aplt’s Br. at 4. Johnson’s argument, assuming it were true,
would necessarily imply the invalidity of his sentence because it would have been
based upon evidence gathered during an illegal arrest and thus would have to be
suppressed. See United States v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008). 2
Johnson’s claim is precisely the type that Heck mandates should be pursued
through a petition for habeas corpus and not a § 1983 complaint.
An aspect of each of Johnson’s specific claims necessarily implies the
invalidity of his sentence. Johnson’s first two claims relate to the purported “new
evidence” regarding the revocation of Hurla’s law enforcement certificate that
Johnson acquired after his plea. He asks us to consider the information as
evidence the defendants concealed Hurla’s illegal appointment as a law
enforcement officer and gave false and misleading testimony at Johnson’s
suppression hearing. But a claim of newly discovered evidence, and of false and
misleading testimony at a suppression hearing, is a direct challenge to Johnson’s
2
When a search is unlawful only because it violates state law, the fruit of
the search need not be suppressed. See United States v. Mendoza, 468 F.3d 1256,
1260 (10th Cir. 2006). But Johnson is contending that the officers’ actions not
only violated state law but also the federal Constitution.
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sentence, which is barred by Heck. 3 Additionally, Johnson’s claim the evidence
was fraudulently concealed is belied by the appendix to Johnson’s memorandum
of law supporting his § 1983 complaint, in which he includes a letter
demonstrating he obtained this “new evidence” through an open records request.
R., Vol. I at 67. That is, this information was publicly available and not hidden
by the defendants. Johnson also contends he discovered this new evidence on
February 10, 2010. But this is the date Johnson received the response to his open
records request, not when the facts were available for discovery.
In his third claim, Johnson asserts he has standing to bring a § 1983 claim
against the defendants based upon PTPD’s hiring and continued employment of
Hurla despite his ineligibility to serve as a law enforcement officer. This claim
fails for two reasons. First, it relies upon the “new evidence” discussed above
regarding Hurla’s hiring and certification as a law enforcement officer. Second,
to have standing to bring this claim, Johnson must demonstrate injury related to
the defendants’ actions. Johnson alleges the defendants’ deliberate indifference
and gross negligence regarding Hurla’s employment caused his injury—“the
deprivation of [Johnson’s] civil rights”—because “any actions taken on behalf of
the public by Mr. Hurla will violate . . . constitutional rights and liberties.”
Aplt’s Br. at 11. Setting aside whether Hurla’s employment itself violates a
3
In his § 1983 complaint, Johnson states his claim “is the direct result of
newly discovered evidence . . . .” R., Vol. I at 8.
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citizen’s constitutional rights, the personalized injury alleged by Johnson relates
to his arrest, search, and seizure by Hurla. However, to recognize this
injury—that the arrest, search, and seizure violated Johnson’s constitutional
rights—would necessarily imply the invalidity of Hurla’s sentence. Thus
Johnson’s third claim is also barred under Heck.
Johnson’s fourth claim is clearly barred by Heck because he contends the
probable cause for his arrest, search, and seizure was unlawfully established. He
asserts Hurla was not qualified as a K-9 officer to use a drug dog to determine
probable cause, and therefore his arrest, search, and seizure were unreasonable.
As such, the allegations of Hurla’s illegal activity necessarily imply Johnson’s
sentence is invalid, and the claim is barred under Heck. 4
Johnson’s final claim is for money damages based upon economic and other
costs related to his incarceration on the Kansas state drug charges, which were
ultimately dismissed by the state. He asserts these charges were favorably
terminated and thus his claim should not be barred by Heck. However, Johnson
contends, “[t]hese hardships were caused by the illegal arrest without probable
cause by the defendants.” Aplt’s Br. at 15. To succeed on this claim, the
arrest—which led to the federal drug charges and sentence in this case—would
4
We have previously acknowledged some claims of illegal search and
seizure are not automatically barred by Heck if “ultimate success on them would
not necessarily question the validity of a conviction.” Beck v. City of Muskogee
Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999). However, that is not true of
Johnson’s claims.
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have to be illegal. This determination would necessarily imply the invalidity of
his sentence based on the federal drug charges and therefore the claim is barred
by Heck.
Generally, a federal prisoner, through a habeas corpus petition under 28
U.S.C. § 2255, may bring many of the same claims Johnson asserts in his § 1983
complaint. But Johnson waived his right to challenge his sentence through a
habeas corpus petition in a knowing and voluntary plea agreement. See United
States v. Johnson, 369 F. App’x 905, 907 (10th Cir. 2010) (finding on direct
appeal that Johnson’s appeal wavier “was not unknowing or involuntary”). 5 This
case is not an instance where a plaintiff lacks an available habeas remedy and
therefore may pursue his claims through a § 1983 suit. See Cohen v. Longshore,
621 F.3d 1311, 1317 (10th Cir. 2010) (“a petitioner who has no available remedy
in habeas, through no lack of diligence on his part, is not barred by Heck from
pursuing a § 1983 claim.”). Johnson is attempting to seek relief through a § 1983
complaint as an end-run around the appeal waiver in his plea agreement. Under
Heck, Johnson cannot seek relief for his claims under § 1983, so his complaint
was properly dismissed.
5
Even despite the waiver, Johnson filed a direct appeal as well as a habeas
petition, both of which were unsuccessful.
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B. Other § 1983 Claims
Without identifying the specific claims, the district court held some of
Johnson’s claims were not premature under Heck. 6 To the extent these claims do
not imply the invalidity of his sentence and are not barred by Heck, we agree with
the district court that Johnson fails to demonstrate standing to assert the claims,
the claims are barred by the statute of limitations, or they otherwise fail to state a
claim upon which relief may be granted under § 1983. Johnson does not allege an
injury other than the illegal arrest and search—which, as discussed above, makes
his claim improper under Heck—and therefore he has not demonstrated standing
for his claim against the defendants based upon their hiring and employment of
Hurla. Additionally, Johnson makes no specific allegations as to how the
defendants allegedly concealed information regarding Hurla and thus has not
shown why his § 1983 should accrue any later than the date of his stop, search,
6
It is unclear which of Johnson’s claims in his § 1983 complaint the
district court believed did not imply the invalidity of his conviction. In his
complaint, Johnson made three explicit claims for relief: (1) Hurla lacked the
legal authority and jurisdiction to perform the drug-dog deployment that
supported probable cause for his stop, search, and seizure; (2) defendants
conspired to suppress exculpatory evidence regarding Hurla’s ineligibility; and
(3) defendants committed fraud and obstructed the legal process, which led to
Johnson’s illegal arrest and incarceration and resulted in a failure to supervise,
abuse of process, and obstruction of justice. Success on any of these
claims—lack of probable cause, suppression of evidence, or fraud and obstruction
leading to an illegal arrest—would imply the invalidity of Johnson’s conviction.
The district court, however, identified facts in Johnson’s allegations that it
considered to be an implicit fourth claim relating to the hiring and continued
employment of Hurla despite his ineligibility.
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and arrest. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553 (10th Cir.
1999). Since he did not file his complaint within the two-year statute of
limitations, any remaining claims are time-barred. See Wallace v. Kato, 549 U.S.
384, 387 (2007) (statute of limitations applicable to § 1983 actions is what state
law provides for personal injury torts); K AN . S TAT . A NN . § 60-513(a)(4) (two-year
statute of limitations for personal injury torts).
Finally, Johnson’s allegations center on violations of Kansas state law
regarding the hiring and employment of law enforcement officers. While these
allegations could support a claim under Kansas state law—a matter upon which
we express no opinion—Johnson has alleged no constitutional violation under
§ 1983 upon which relief may be granted. See D.L. v. Unified Sch. Dist. No. 497,
596 F.3d 768, 776 (10th Cir. 2010) (Ҥ 1983 affords a remedy for violations of
federal law and does not provide a basis for redressing violations of state law.”)
(quotations omitted). State law determinations do not control whether probable
cause for an arrest exists under the Fourth Amendment. See United States v.
Turner, 553 F.3d 1337, 1346 (10th Cir. 2009) (“[I]f officers have probable cause
to believe that a crime has been committed in their presence, they may arrest and
search incident to that arrest without violating the Fourth Amendment, even if
such police action is not authorized by state law.”) (citing Virginia v. Moore, 553
U.S. 164, 178 (2008)). Johnson has made no showing—other than his claims
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regarding Hurla’s certification under Kansas state law—that the police lacked
probable cause for his arrest and thus has failed to state a claim under § 1983.
III. Conclusion
For the foregoing reasons, we AFFIRM the dismissal of Johnson’s
complaint. We DENY Johnson’s motion to supplement the record on appeal, and
we DENY Johnson’s motion to abate case.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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