                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0169n.06

                                        No. 08-1858

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


JEFFREY KARTTUNEN,                            )
                                                                              FILED
                                                                           Mar 16, 2010
                                              )
                                                                     LEONARD GREEN, Clerk
       Plaintiff-Appellant,                   )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
DAVID CLARK,                                  )   EASTERN DISTRICT OF MICHIGAN
                                              )
       Defendant-Appellee.                    )




       Before: DAUGHTREY, SUTTON, and McKEAGUE, Circuit Judges.


       PER CURIAM. Plaintiff Jeffrey Karttunen appeals the district court’s grant of

summary judgment to defendant David Clark, a Michigan state trooper, on Karttunen’s

claim that Clark used unconstitutionally excessive force while taking the plaintiff into

custody for resisting arrest. In reaching its decision, the district court did not address the

merits of Karttunen’s excessive force claim. Instead, the court ruled that the principles

announced in Heck v. Humphrey, 512 U.S. 477 (1994), precluded the plaintiff’s challenge

pursuant to 42 U.S.C. § 1983, because a successful excessive-force judgment would

necessarily imply the invalidity of the underlying conviction. Because we conclude that

Heck is inapplicable to the facts of this case, as we recently held in Schreiber v. Moe, ___

F.3d ___, No. 09-1337, 2010 WL 724021 (6th Cir. March 4, 2010), we reverse the district

court’s judgment and remand this matter for further proceedings.
No. 08-1 858
Karttunen v. Clark




                     FACTUAL AND PROCEDURAL BACKGROUND


       Taking the evidence in the light most favorable to the plaintiff, the district judge

succinctly stated the facts germane to this appeal in an initial order denying the

defendant’s motion for summary judgment, as follows:


       [Clark] was dispatched to Plaintiff’s home on November 10, 2004, to
       investigate a hit and run accident. The dispatcher also informed Clark that
       there was a warrant for Plaintiff’s arrest issued from Shiawassee County.
       When Clark arrived at Plaintiff’s residence, he knocked on the door, but
       received no response. Clark then looked into a window and saw Plaintiff
       sleeping. Clark knocked on the window and awoke Plaintiff, who came to the
       door.
       Clark informed Plaintiff that he had a “message” for him and asked him to
       step out of the house. Plaintiff asked Clark to give him the message through
       the door, but Clark refused. Clark told Plaintiff that he needed to come
       outside to hear the message, or Clark would impound his truck. According
       to Plaintiff, after he opened the door, Clark pulled him out of the house by his
       arm, put his other arm behind his back and “body slammed or tackled me to
       the porch head first and came down on top of me with his knee on my back.”
       Pl.’s Dep. at 31. Plaintiff contends that he hit his face on the concrete porch,
       sustaining a cut above his eye as well as head, back, and shoulder injuries.
       Clark then got Plaintiff to his feet and put him in a patrol car.


The district court further noted that:


       Clark provides a slightly different version of events. According to Clark, he
       asked Plaintiff to step out onto the porch, but Plaintiff refused. Clark then
       grabbed Plaintiff’s arm and ordered him to step out. Plaintiff tried to pull
       away from Clark, but Clark used the momentum to “continue on. And I came
       down on top of him. Clark Dep. At 59. Clark referred to this as a “controlled
       takedown.” Id. According to Clark, Plaintiff hit his head on the door frame

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Karttunen v. Clark

       on the way down. After Plaintiff was on the ground, Clark handcuffed him.
       Clark did not tell Plaintiff he was under arrest until after he handcuffed him.


       Subsequently, Plaintiff was charged in state court for resisting arrest.
       Initially, the charge was not bound over at the preliminary examination,
       because Clark did not inform Plaintiff he was being arrested until after the
       fact. Upon appeal, however, the charge proceeded and Plaintiff pleaded no
       contest.


       The Michigan state court sentenced Karttunen to five days in jail and 18 months on

probation for his conviction for attempted resisting of a police officer, a violation of

Michigan Compiled Laws § 750.81d(1). Shortly after entry of that judgment, the plaintiff

filed this civil lawsuit, alleging both a state-law claim of assault-and-battery and a claim

pursuant to 42 U.S.C. § 1983 for use of excessive force in effectuating the seizure of his

person. The district court dismissed the state-law claim sua sponte, declining to exercise

supplemental jurisdiction over that allegation.


       The defendant then filed a motion for summary judgment, which was initially denied

by the district court. In reaching that preliminary decision, the district judge determined that

Karttunen’s nolo contendere plea could not have preclusively established that the plaintiff

resisted arrest because, under Michigan law, a nolo contendere plea “cannot be

considered ‘actual litigation’ for the purposes of collateral estoppel.” The district court

noted that under the plaintiff’s version of the facts, Karttunen “did not resist at all, and thus

no force was necessary.” The court also found that Clark “[did] not argue that he [wa]s

entitled to qualified immunity even under [Karttunen’s] version of the facts” and, therefore,


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Karttunen v. Clark

concluded that a factual dispute existed between the parties, making summary judgment

inappropriate.


       The matter was, therefore, set for trial, but on the day before the start of the

proceedings, defendant Clark filed a “supplemental brief based on Heck v. Humphrey,”

arguing that the Supreme Court decision in Heck barred the plaintiff from prosecuting a

section 1983 claim “that, if successful, ‘would necessarily imply the invalidity’ of a prior

conviction or sentence.” The district judge treated the “supplemental brief” as a delayed

motion for summary judgment, found merit in the defendant’s position, and granted Clark

summary judgment. In effect, the district court adopted the defendant’s reasoning that

under Michigan law, a person may resist an unlawful arrest; that the plaintiff in this case

pleaded nolo contendere to the charge that he improperly resisted arrest, meaning that the

arrest itself must have been lawful; that if the arrest was lawful, excessive force must not

have been used in the seizure; and that for Karttunen to allege that the force used in his

arrest was excessive necessarily implied that he was improperly convicted for resisting

arrest – an unacceptable collateral attack on a still-valid criminal conviction. The plaintiff

now appeals from that determination.


                                       DISCUSSION


       As noted above, the district court granted summary judgment to the defendant

based upon its finding that Karttunen’s section 1983 claim was barred by the principles

announced in Heck v. Humphrey. In that opinion, the Supreme Court held:

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No. 08-1 858
Karttunen v. Clark

       [I]n 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, 28 U.S.C. § 2254. A claim for damages
       bearing that relationship to a conviction or sentence that has not been so
       invalidated is not cognizable under § 1983. Thus, when a state prisoner
       seeks damages in a § 1983 suit, 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.


Heck, 512 U.S. at 486-87 (footnotes omitted). We have stressed the same point: “Under

Heck, the salient question is whether the § 1983 claim ‘necessarily’ implies the invalidity

of the state-court conviction.” Swiecicki v. Delgado, 463 F.3d 489, 504 (6th Cir. 2006)

(Sutton, J., concurring in part and dissenting in part) (citing Hill v. McDonough, 547 U.S.

573, 583 (2006)), abrogated on other grounds by Wallace v. Keto, 549 U.S. 384 (2007).


       In reaching its conclusion that Karttunen’s civil rights action did “necessarily” imply

the invalidity of the state-court conviction, the district court, citing People v. Little, 456

N.W.2d 237 (Mich. 1990), claimed both that “Plaintiff could have used excessive force as

a defense to the charge of resisting arrest,” and that “[o]ne of the necessary elements of

a conviction for resisting arrest is that a lawful arrest occurred.” However, in a case with

many striking factual similarities to the facts in this case, we have since recognized that


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Karttunen v. Clark

“[t]he mere fact that the conviction and the § 1983 claim arise from the same set of facts

is irrelevant if the two are consistent with one another.” Schreiber, ___ F.3d at ___, 2010

WL 724021, at *8.


       In Schreiber, the plaintiff pleaded no contest in Michigan state court to a charge of

attempting to “assault, batter, wound, resist, obstruct, oppose, or endanger” a police officer

under M.C.L. § 750.81d(1), the same code section under which Karttunen was charged

and to which he also pleaded no contest.          Schreiber’s prosecution arose from an

altercation on the basis of which he also filed a section 1983 action alleging excessive

force. The district court held that Schreiber’s claim was barred by Heck v. Humphrey,

because he had been convicted in state court for attempting to resist arrest. On appeal,

we determined that “[n]othing in the text of Michigan Compiled Laws § 750.81d(1) . . .

suggests that the state must prove as an element of the crime that the police did not use

excessive force.” Id. at ___, 2010 WL 724021, at *9. Observing that “one recent Michigan

case has strongly suggested that excessive force by the police is not a defense to a

resisting-arrest conviction,” we concluded that “any excessive force used by [the defendant

police officer] would [not] have provided Schreiber with an affirmative defense to the

charge of resisting an arrest.” Id. (citing People v. Ventura, 686 N.W.2d 748, 752 (Mich.

Ct. App. 2004), and People v. Hill, No. 283951, 2009 WL 1830750, at *3 (Mich. Ct. App.

June 25, 2009)).




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Karttunen v. Clark

       As a result, we held that “Schreiber’s § 1983 excessive-force claim does not

challenge his conviction for attempting to resist his arrest” and that the claim was,

therefore, not barred by Heck, which “applies only where a § 1983 claim would ‘necessarily’

imply the invalidity of a conviction.” Schreiber, ___ F.3d at ___, 2010 WL 724021, at *9

(quoting Nelson v. Campbell, 541 U.S. 637, 647 (2004). Citing Nelson, we pointed out that

a plaintiff would otherwise be unable to pursue a potentially valid claim for damages, and

directed that Schreiber be allowed to proceed with his section 1983 action for excessive

force. See id.


                                      CONCLUSION


       Because this appeal is clearly controlled by our decision in Schreiber, the same

result must follow here. In its original order denying summary judgment, the district court

correctly ruled that “a grant of immunity . . . [was] inappropriate, given the factual dispute

between the parties.”     We therefore REVERSE the district court’s judgment in the

defendant’s favor and REMAND the case for further proceedings consistent with this

opinion.




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