McCann, Patrick J. v. Neilsen, Ken

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3699
PATRICK J. MCCANN,
Plaintiff-Appellant,
v.
Deputy KEN NEILSEN,
in his individual capacity,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 7955—James F. Holderman, Chief Judge.
____________
ARGUED FEBRUARY 6, 2006—DECIDED OCTOBER 26, 2006
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Before FLAUM, Chief Judge, and ROVNER and SYKES,
Circuit Judges.
SYKES, Circuit Judge. Patrick McCann brought this
civil rights action under 42 U.S.C. § 1983 alleging that
McHenry County Sheriff’s Deputy Ken Neilsen used
excessive force in the course of arresting him. The district
court granted Deputy Neilsen’s motion for judgment on
the pleadings, holding that under Heck v. Humphrey, 512
U.S. 477 (1994), certain allegations in the complaint
were inconsistent with, and thus an impermissible col-
lateral challenge to, McCann’s criminal convictions stem-
ming from the same confrontation. McCann appeals, and for
the following reasons we reverse and remand for further
proceedings.
2 No. 05-3699
I. Background
The record is necessarily limited by virtue of the district
court’s award of judgment on the pleadings. On November
9, 2001, McCann was being sought by the police in the
vicinity of Woodstock, Illinois, for alleged acts of violence
against his estranged girlfriend. Around noon that day,
Deputy Neilsen of the McHenry County Sheriff’s Depart-
ment encountered McCann walking along some railroad
tracks. McCann initially ran from the deputy, then stopped,
turned, produced a “spike-type” weapon from his pocket,
and began walking directly toward the deputy. When
McCann continued to advance despite the Deputy’s com-
mands to stop, Deputy Neilsen fired a single shot
that struck McCann in the chest.1
McCann was subsequently convicted by an Illinois jury of
aggravated assault on the deputy and obstructing a peace
officer in connection with the confrontation incident to the
arrest. McCann’s conviction for aggravated assault under
Illinois law required the jury to find that he engaged in
conduct which placed another person in reasonable appre-
hension of receiving a battery, knowing that the individual
assaulted was a peace officer. 720 ILL. COMP. STAT. 5/12-1;
720 ILL. COMP. STAT. 5/12-2(a)(6). The conviction for
obstructing a peace officer required the jury to find that
McCann “knowingly obstruct[ed] the performance by one
known to the person to be a peace officer . . . of any autho-
rized act within his official capacity . . . .” 720 ILL. COMP.
STAT. 5/31-1.
McCann then brought this suit pursuant to 42 U.S.C.
§ 1983, alleging that Deputy Neilsen’s act of shooting
1
These facts, not contained in McCann’s complaint, are included
in the facts of which the district court took judicial notice from the
content of court files of the proceedings against McCann in Illinois
state court stemming from the confrontation.
No. 05-3699 3
him and causing serious injury constituted an excessive use
of force in violation of the Fourth Amendment. In his
complaint, McCann alleged in pertinent part as follows:
5. On November 9, 2001, the plaintiff was lawfully
present at the approximate location of Ridgefield Road
and Country Club Drive at or about the railroad tracks
in Ridgefield, in the Northern District of Illinois.
6. At the time and date aforesaid, the plaintiff did not
pose a threat of violence or great bodily harm to the
defendant, was not in the commission of a forcible
felony nor was he attempting to resist, escape or de-
feat an arrest otherwise [sic] acting so as to justify the
use of deadly force by the defendant.
7. That on the date and time aforesaid, the defendant,
without justification, shot the plaintiff causing serious
injury.
Deputy Neilsen moved for judgment on the pleadings,
pursuant to FED. R. CIV. P. 12(c), and in connection there-
with asked the district court to take judicial notice
of McCann’s aggravated assault and obstruction convic-
tions. The court took notice of the convictions and held that
the factual allegations in the complaint were inconsistent
with, and thus challenged the validity of, McCann’s assault
and obstruction convictions, and that this required dis-
missal pursuant to the Heck rule. Heck holds that a plaintiff
may not maintain a § 1983 action where a judgment in his
favor would necessarily imply the invalidity of a previous
criminal conviction that has not been reversed, expunged,
or called into question by the issuance of a federal court
writ of habeas corpus. Applying this rule, the district court
held as follows:
McCann cannot now allege that he was not ‘attempting
to resist, escape or defeat an arrest’ . . . because that
allegation necessarily calls into question his convic-
tion for obstructing a peace officer. . . . McCann cannot
4 No. 05-3699
now allege that ‘he did not pose a threat of violence’ to
Deputy Neilsen because that allegation would necessar-
ily call into question his conviction for assault.
Because McCann’s assault and obstruction convictions
had not been reversed, expunged, or called into question
by a federal writ of habeas corpus, the district court granted
judgment on the pleadings in favor of Deputy Neilsen.
II. Discussion
A judgment entered on the pleadings pursuant to FED.
R. CIV. P. 12(c) is reviewed de novo. Guise v. BWM Mort-
gage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). The rule of
Heck v. Humphrey is intended to prevent collateral
attack on a criminal conviction through the vehicle of a civil
suit. Heck, 512 U.S. at 484. To this end, Heck bars a
plaintiff from maintaining a § 1983 action in situations
where “a judgment in favor of the plaintiff would neces-
sarily imply the invalidity of his conviction or sen-
tence . . . .” Id. at 487; see also VanGilder v. Baker, 435 F.3d
689, 691 (7th Cir. 2006). Conversely, if the civil action, even
if successful, “will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed.” Heck, 512 U.S. at 487.
As a general proposition, a plaintiff who has been con-
victed of resisting arrest or assaulting a police officer during
the course of an arrest is not per se Heck-barred from
maintaining a § 1983 action for excessive force stemming
from the same confrontation. VanGilder, 435 F.3d at 692. A
contrary conclusion, we held in VanGilder, would “imply
that once a person resists law enforcement, he has invited
the police to inflict any reaction or retribution they choose,
while forfeiting the right to sue for damages.” Id. We
disapproved such a result because it “would open the door
to undesirable behavior and gut a large share of the
No. 05-3699 5
protections provided by § 1983.” Id. Thus, a civil judgment
that Deputy Neilsen used excessive force in effecting
McCann’s arrest would not necessarily imply the invalidity
of McCann’s criminal convictions for assault and obstruc-
tion.
The district court in the present case did not disagree
with this general proposition, noting that McCann could
“have avoided Heck by admitting that he was guilty of
aggravated assault and obstructing a peace officer, or by
simply remaining silent about the facts regarding those
convictions.” The district court was of the view that even if
McCann’s constitutional claim was not Heck-barred in the
abstract, McCann had voluntarily steered the action into
Heck territory by making specific factual allegations in the
complaint that were inconsistent with the facts upon which
his criminal convictions were based.
This additional gloss on the Heck analysis is supported by
our precedents. This court held in Okoro v. Callaghan,
324 F.3d 488, 490 (7th Cir. 2003), that a plaintiff’s claim is
Heck-barred despite its theoretical compatibility with his
underlying conviction if specific factual allegations in the
complaint are necessarily inconsistent with the validity of
the conviction: “It is irrelevant that [the plaintiff] disclaims
any intention of challenging his conviction; if he makes
allegations that are inconsistent with the conviction’s
having been valid, Heck kicks in and bars his civil suit.”
Okoro was convicted of dealing heroin following a search
that recovered heroin in his home; his defense had been
that he was not selling drugs but gems and the officers stole
the gems during the search. His subsequent § 1983 suit was
Heck-barred because his specific allegations—that the
defendant officers violated his civil rights by illegally
seizing his gems—were inconsistent with the validity of his
heroin conviction.
VanGilder, an excessive force § 1983 claim evaluated
against the backdrop of a conviction for resisting an officer,
contains a similar analysis but a different result:
6 No. 05-3699
VanGilder does not collaterally attack his conviction,
deny that he resisted [the officer’s] order to comply with
the blood draw, or challenge the factual basis presented
at his change of plea hearing. Rather, VanGilder claims
that he suffered unnecessary injuries because [the
officer’s] response to his resistance . . . was not, under
the law governing excessive use of force, objectively
reasonable.
VanGilder, 435 F.3d at 692 (emphasis added). Thus,
VanGilder, unlike Okoro, had not pleaded facts inconsistent
with his underlying criminal conviction, and his § 1983
claim, not otherwise incompatible with those convictions,
was permitted to proceed.
The question for us, then, is not whether McCann could
have drafted a complaint that steers clear of Heck (he could
have), but whether he did. In other words, does the com-
plaint contain factual allegations that “necessarily imply”
the invalidity of his convictions. Heck, 512 U.S. at 487. On
this question, we find it dispositive that the district court
took an ambiguously worded paragraph in the com-
plaint—one that could be read to avoid the Heck bar—and
construed it in a manner that favored the defendant.
In deciding a Rule 12(c) motion, we accept the facts
alleged in the complaint in the light most favorable to the
plaintiff. Guise, 377 F.3d at 798. Giving McCann the benefit
of all reasonable inferences, we conclude that his complaint
can reasonably be read in a manner that does not implicate
Heck. To repeat, the operative paragraph of the complaint
states as follows:
At the time and date aforesaid, the plaintiff did not
pose a threat of violence or great bodily harm to the
defendant, was not in the commission of a forcible
felony nor was he attempting to resist, escape or de-
feat an arrest otherwise [sic] acting so as to justify
No. 05-3699 7
the use of deadly force by the defendant. (Emphasis
added.)
The district court read this paragraph to constitute a
categorical denial by McCann that he ever posed a threat of
violence to the deputy, or ever attempted to resist or defeat
arrest. Given the convoluted syntax employed, this reading
is not completely unreasonable, and, so read, this para-
graph renders McCann’s allegations arguably inconsistent
with his assault and obstruction convictions.
But there is an equally plausible construction that avoids
inconsistency with McCann’s assault and obstruction
convictions. That is, by reference to the concluding and
qualifying clause emphasized above, the paragraph can be
read as alleging that McCann never posed a threat of
violence, attempted escape, or resisted arrest to a degree
that would have justified the use of deadly force as a
response. Read in this way, McCann is not denying his
assaultive and obstructive conduct, but is alleging
that regardless of what he may have done, the deputy’s
use of deadly force as a response was not reasonable. Given
our obligation at this stage of the proceedings to construe
the complaint in the light most favorable to the nonmoving
party, we give the complaint this construction and hold that
McCann’s claim is not barred by Heck. On remand, McCann
should be given an opportunity to file an amended com-
plaint that clarifies and implements this reading of his
allegations.
The judgment of the district court is REVERSED, and this
case is REMANDED for further proceedings.
8 No. 05-3699
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-26-06