                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                         November 9, 2016
                       _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
JAMES L. WILSON,

      Plaintiff Counterclaim Defendant -
      Appellant,

v.                                                         No. 16-3027
                                              (D.C. No. 5:11-CV-03204-JTM-KGG)
MARK ROKUSEK,                                               (D. Kan.)

      Defendant Counterclaimant -
      Appellee,

and

JOHNSON COUNTY SHERIFF’S
DEPARTMENT; JOHNSON COUNTY
BOARD OF COUNTY
COMMISSIONERS; FRANK DENNING,

      Defendants - Appellees.
                      _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before KELLY, GORSUCH, and MATHESON, Circuit Judges.
                  _________________________________




      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Plaintiff James L. Wilson brought suit in the United States District Court for

the District of Kansas pursuant to 42 U.S.C. § 1983 for alleged constitutional

violations arising from his arrest. In the course of his detainment and arrest,

Mr. Wilson ran from Officer Mark Rokusek, stole his service vehicle, hit him with

the vehicle, and then swerved at another officer. Mr. Wilson was then shot in the

arm. He alleged that Officer Rokusek used excessive force in shooting his arm

because there was no reasonable danger to him or others.

      The district court held the case in abeyance while Mr. Wilson was charged and

convicted of, inter alia, battery against a law enforcement officer. After the Kansas

Court of Appeals affirmed the conviction, State v. Wilson, 347 P.3d 1214 (2015)

(per curiam) (table decision), the district court dismissed the claims against the

governmental-entity defendants under state sovereign immunity, the claims against

Frank Denning under Monell v. Department of Social Services, 436 U.S. 658 (1978),

and the claims against Officer Rokusek under Heck v. Humphrey, 512 U.S. 477

(1994). On appeal, Mr. Wilson does not raise any error in the district court’s Heck

analysis; his brief reads more like an application for post-conviction relief. He

merely maintains that he did not drive the service vehicle into Officer Rokusek,

seeking to buttress his claim for excessive force. Mr. Wilson does not appeal the

district court’s determination regarding the governmental-entity defendants or

Mr. Denning.

      Civil actions “are not appropriate vehicles for challenging the validity of

outstanding criminal judgments.” Heck, 512 U.S. at 486. Under Heck, a plaintiff

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may “not bring a civil-rights claim for damages under § 1983 based on actions whose

unlawfulness would render an existing criminal conviction invalid.” Havens v.

Johnson, 783 F.3d 776, 782 (10th Cir. 2015). A claim of excessive force does “not

necessarily imply the invalidity” of a conviction for assaulting the officer. Martinez

v. City of Albuquerque, 184 F.3d 1123, 1126 (10th Cir. 1999). As a result, we must

“compare the plaintiff’s allegations to the offense he committed.” Havens, 783 F.3d

at 782. An excessive-force claim must be barred in its entirety if the suit squarely

challenges the factual determination that underlies the plaintiff’s conviction. Id. at

783.

       Mr. Wilson’s § 1983 claim is precisely the kind of suit barred by Heck. Under

Kansas law, a person commits battery against a law enforcement officer if he

intentionally or recklessly caused bodily harm to a properly identified officer

engaged in the performance of his duty. R. Vol. 1 at 273 (jury instruction); see also

Kan. Stat. Ann. § 21-5413(a). Mr. Wilson was thus convicted of causing bodily harm

to Officer Rokusek. Neither his complaint nor his opening brief alleges that Officer

Rokusek’s use of force was excessive in response to a battery. Rather, he contends

that Officer Rokusek’s use of force was unreasonable because he was not in the path

of the service vehicle. These allegations could not support the elements of battery

against a law enforcement officer under Kansas law and the factual basis for

Mr. Wilson’s conviction. Mr. Wilson “does not present an alternative scenario

consistent with his [battery] conviction,” Havens, 783 F.3d at 783–84 — his only



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theory of relief is based on his innocence, which is a theory barred by Heck, see id. at

784. We therefore affirm the district court’s dismissal of his suit.

      Mr. Wilson has moved to proceed without prepayment of court fees. To

succeed on this motion, he must show “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised in the action.” Lister v.

Dep’t of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). Here, the district court

thoroughly discussed the deficiencies of Mr. Wilson’s complaint under Heck.

Mr. Wilson does not attempt to put forth any reasoned and nonfrivolous arguments

showing error in the district court’s analysis, opting instead to challenge the factual

basis for his battery conviction. Accordingly, we find his appeal frivolous and deny

the motion. We have previously assessed a filing fee of $505.00 and directed partial

payments from Mr. Wilson’s prison trust account. Mr. Wilson is directed to pay the

outstanding balance of the filing fee to the clerk of the district court forthwith.


                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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