                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 8, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                           FOR THE TENTH CIRCUIT


    ROGER SCOTT BRYNER,

              Plaintiff-Appellant,

    v.                                                  No. 10-4135
                                               (D.C. No. 2:08-CV-00463-CW)
    STATE OF UTAH,                                        (D. Utah)

              Defendant,

    and

    COUNTY OF SALT LAKE;
    MICHAEL ROWLEY; FNU
    ROCKAZOLA,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before MURPHY, HARTZ, and GORSUCH, 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Plaintiff-appellant Roger Scott Bryner, appearing pro se, appeals the

dismissal of his federal action under 42 U.S.C. § 1983 against the above-named

defendants. He raises three points on appeal: (1) that the district court erred in

resolving that Heck v. Humphrey, 512 U.S. 477 (1994), applies to a number of his

claims because Heck only applies to claims for malicious prosecution; 1 (2) that the

claims dismissed pursuant to Heck should be dismissed without prejudice; and (3)

that the district court erred in holding that Mr. Bryner failed to state a claim for

excessive force. Because we agree with the second of these arguments, we affirm

the district court’s dismissal, but remand with direction that it be modified so that

the claims dismissed due to Heck are dismissed without prejudice.

                         I. Factual and Procedural History

      In April 2007, Mr. Bryner went to the Utah Third District Courthouse to

file papers in a case. He became involved in a verbal dispute with court personnel

that resulted in law enforcement being summoned. Mr. Bryner was escorted to


1
      In Heck v. Humphrey, the Supreme Court held that

      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,
      28 U.S.C. § 2254.

512 U.S. 477, 486-87 (1994) (footnote omitted).

                                          -2-
the entrance of the courthouse and then arrested for criminal trespass and

disorderly conduct when he refused to leave. Mr. Bryner was eventually

convicted in Utah justice court on two counts but has appealed to the Utah district

court, where, under Utah law, he is entitled to a trial de novo. See Utah Code

Ann. § 78A–7–118(1). In June 2008, Mr. Bryner filed a civil-rights complaint

under 42 U.S.C. § 1983 against the State of Utah; Salt Lake County, Utah; Deputy

Michael Rowley; Deputy Rockazola; and various unnamed state employees. The

court allowed him to proceed in forma pauperis. After motions to dismiss were

filed by Deputy Rowley and the State of Utah, the court dismissed the State of

Utah from the action. After the case was assigned to a magistrate judge,

Mr. Bryner filed a motion to amend his complaint and was given ten days to

submit a proposed amended complaint. He submitted his proposed amended

complaint after that deadline.

                          A. Report and Recommendation

      Because Mr. Bryner appeared in forma pauperis in the district court, the

magistrate judge screened his case under 28 U.S.C. § 1915(e)(2)(B) to determine

whether his claims should be dismissed as frivolous, malicious, or failing to state

a claim upon which relief can be granted. In doing so, he considered the contents




                                         -3-
of the untimely proposed amended complaint. 2 We shall discuss only those

§ 1983 claims relevant to this appeal.

                              1. Fourteenth Amendment

        The magistrate judge read Mr. Bryner’s proposed amended complaint as

alleging that Mr. Bryner’s Fourteenth Amendment due process rights were

violated when he was denied a fair trial in state court and denied the possibility of

a fair trial in federal court by the destruction of evidence, presumably the asserted

destruction of a digital tape recording by Deputy Rowley. 3 The magistrate judge

recommended dismissal of this claim based on Heck v. Humphrey, on the ground

that a federal decision concluding that the destruction of evidence had denied

Mr. Bryner a fair trial in state court would necessarily undermine the validity of

his state court conviction.

    2. Wrongful Arrest, Wrongful Imprisonment, Malicious Prosecution, and Abuse

                                     of Process

        The magistrate judge read Mr. Bryner’s amended complaint as asserting

that the actions taken by the individual defendants (1) involved in his removal and



2
      The court found that there were no issues raised in the original complaint
that were not raised in the amended complaint as well.
3
      Mr. Bryner alleged he had miniature tape recorder in his possession that
was running during the incident in question and that, when the recorder was
returned to him after his release, there was no recording. Mr. Bryner alleges that
Deputy Rowley must have erased the tape after the recorder was taken from
Mr. Bryner.

                                         -4-
arrest at the courthouse April 18, 2007, and (2) involved with the prosecution of

the criminal charges that resulted from that arrest, violated his constitutional

rights. He asserted that the arrest and his subsequent imprisonment were

wrongful, and that his prosecution was malicious and constituted an abuse of legal

process. The magistrate judge recommended that all of these claims be dismissed

on Heck grounds because they are all “inextricably linked to and would undermine

the validity of Plaintiff’s conviction stemming from his April 18, 2007 arrest.”

R., Vol. 1 at 201.

                                 3. Excessive Force

      Mr. Bryner also raised an excessive force claim against Deputy Rowley.

He alleged that when he went to a room in the courthouse and tried to file a

pleading with one of the judges’ clerks, he was grabbed and pushed by Deputy

Rowley, who told him to leave and ordered him not argue with the clerk. The

clerk had told Mr. Bryner he would have to go to another floor to file his papers

(although allegedly one of the other court employees agreed that he could file

them in the room he was in). Mr. Bryner alleges that Deputy Rowley and another

deputy lifted him on both shoulders and shoved him. He was then escorted to the

first floor but was eventually arrested after he continued to assert that he wanted

to file his papers. The magistrate judge recommended dismissal for failure to

state a claim upon which relief could be grounded. The magistrate judge

concluded that, as Mr. Bryner refused to leave the courthouse and admitted he


                                          -5-
pushed Deputy Rowley, the facts, as alleged, showed no unconstitutional use of

force.

                               B. District Court Decision

         The district court read Mr. Bryner’s objection to the magistrate judge’s

report and recommendation as asserting, among other complaints, that “the court

must first determine if it has jurisdiction and, if it concludes under Heck that it

lacks jurisdiction, dismiss the complaint without prejudice.” Id. at 255. The

district court’s decision accepted and adopted both the reasoning and the

conclusion of the magistrate judge’s report and recommendation and made three

rulings: (1) that Mr. Bryner’s justice court conviction was not overturned by the

filing of an appeal to the state district court; (2) that some of the causes of action

brought by Bryner, specifically claims “that he has been wrongfully arrested and

imprisoned” were precluded by Heck v. Humphrey, and (3) that assertion of a

claim precluded by Heck v. Humphrey constitutes a failure to state a claim upon

which relief may be granted, not a jurisdictional defect. The court then dismissed

Mr. Bryner’s claims with prejudice. Mr. Bryner appeals the dismissal.

                                    II. ANALYSIS

           A. Does Heck v. Humphrey Apply Only to Malicious Prosecution?

         Mr. Bryner argues that, as to his claims for “False Arrest charges and

destroying evidence or the like[,]” Aplt. Br. at 8, the district court erred in

dismissing on the basis of Heck because Heck “only applies to malicious


                                           -6-
prosecution,” id. at 4. 4 He argued in his objections to the magistrate judge’s

recommendations that “Younger is the applicable standard for a wrongful arrest,

not Heck which only applies to malicious prosecution.” See R., Vol. 1 at 217.

This argument, which Mr. Bryner makes only in a conclusory fashion, fails on the

merits.

      In Heck, the Supreme Court was concerned with not allowing a party to

collaterally attack his or her criminal conviction through the vehicle of a civil suit

under 42 U.S.C. § 1983. It held that:

      [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.




4
      Mr. Bryner argues that the court should, instead, have abstained from
hearing the claims under the Younger abstention doctrine and stayed those claims
pending final outcome in the state court.

                                         -7-
512 U.S. 477, 486-87 (1994) (footnotes omitted). The plaintiff in Heck, who had

previously been convicted in state court of voluntary manslaughter, filed a federal

suit under 42 U.S.C. § 1983 alleging that two prosecutors and a state police

investigator “had engaged in an ‘unlawful, unreasonable, and arbitrary

investigation’ leading to petitioner’s arrest; ‘knowingly destroyed’ evidence

‘which was exculpatory in nature and could have proved [petitioner’s] innocence’;

and caused ‘an illegal and unlawful voice identification procedure’ to be used at

petitioner’s trial.” 512 U.S. at 479 (quoting Mr. Heck’s complaint). The Court

found these claims analogous to the common-law cause of action for malicious

prosecution, and noted that “[o]ne element that must be alleged and proved in a

malicious prosecution action is termination of the prior criminal proceeding in

favor of the accused.” Id. at 484. The court found that Heck’s § 1983 claims

necessarily required him to prove the unlawfulness of his conviction or

confinement and were thus barred. Id. at 90. We assume it is this ruling that led

Mr. Bryner to his conclusion that Heck applies only to malicious prosecution

claims.

      But the Court in Heck also presented an example of a § 1983 action that did

not seek damages directly attributable to conviction or confinement, but “whose

successful prosecution would necessarily imply that the plaintiff’s criminal

conviction was wrongful.” 512 U.S. at 486 n.6. The court reasoned that a

plaintiff who had been previously convicted of resisting arrest, which the Supreme


                                        -8-
Court defined for the purposes of the example “as intentionally preventing a peace

officer from effecting a lawful arrest,” id., would be barred from bringing a

§ 1983 claim seeking damages for violation of his Fourth Amendment right to be

free from unreasonable seizures against the officer who made the arrest in

question. The court concluded that such a claim would necessarily imply that the

arrest was not lawful. Id. Thus, it is clear that Mr. Bryner is mistaken and that

Heck does not apply only to malicious prosecution claims.

      We recognize that the Court presented a second example of a § 1983 action

that did not seek damages directly attributable to conviction or confinement but

whose prosecution would not necessarily imply that conviction was wrongful. See

id. at 487 n.7. That example concerned a previously convicted plaintiff who

brought a § 1983 claim alleging a search that violated his Fourth Amendment

right to be free from unreasonable searches, but produced evidence that was later

introduced in the state criminal trial resulting in his conviction. Id. at 487 n.7.

The court noted that “such a § 1983 action, even if successful, would not

necessarily imply that the plaintiff’s conviction was unlawful” “[b]ecause of

doctrines like independent source and inevitable discovery.” Id. at 487 n.7.

Mr. Bryner makes no attempt to show that his wrongful arrest, wrongful

imprisonment, and destruction of evidence claims fall under this second example

and, thus, would not be barred by Heck. Even if he had undertaken such an

argument, it would be futile.


                                          -9-
      The magistrate judge read the destruction of evidence claim in Mr. Bryner’s

less-than-clear proposed amended complaint as, essentially, a due process claim

arguing that the destruction of evidence led to a denial of a fair trial. He read the

wrongful arrest and imprisonment claims as essentially Fourth Amendment

improper-seizure claims arguing that the officers in question did not have

probable cause to arrest and hold him late into the night for the crimes for which

he was later convicted. Mr. Bryner did not take issue with these interpretations in

his objections to the magistrate judge’s recommendation and does not contest

them on appeal.

      Mr. Bryner’s destruction of evidence claim therefore directly attacks the

fairness of his state court proceeding and falls squarely under Heck’s bar of

collateral attacks on a state court proceeding through the use of § 1983. As to the

other two unlawful seizure claims, the question is, whether, to prevail on these

§ 1983 claims, Mr. Bryner would have to necessarily negate an element of one of

the offenses of which he has been convicted.

      Mr. Bryner was convicted of the class B misdemeanor of criminal trespass

and the class C misdemeanor of disorderly conduct. Mr. Bryner presented to the

federal district court the jury instructions that were given at his state court trial.

They show that the elements for his criminal trespass conviction included that:

(1) although Mr. Bryner knew “his . . . presence [at the courthouse] was

unlawful”; (2) he “remained on [the] property”; (3) “[w]hen notice against . . .


                                           -10-
remaining was given by personal communication from . . . [s]omeone with

apparent authority to act for the owner.” R., Vol. 1 at 188. The elements for his

disorderly conduct conviction were that Mr. Bryner (1) “[r]efused to comply with

the lawful order of the police to move from a public place”; or (2) “[i]ntending to

cause public inconvenience, annoyance, or alarm, or recklessly creating a risk

thereof, he engaged in fighting or in violent, tumultuous, or threatening

behavior.” Id. at 190.

      Mr. Bryner’s pro se § 1983 complaint complains his constitutional rights

were violated due to an unlawful arrest–ostensibly a claim that the deputies did

not have probable cause to arrest him for the offenses on which he was later

convicted. “Probable cause exists if the facts and circumstances known to the

officer warrant a prudent man in believing that the offense has been committed.”

Buck v. City of Albuquerque, 549 F.3d 1269, 1281 (10th Cir. 2008) (internal

quotation marks omitted). In most cases, as noted above, in order to prevail on a

Fourth Amendment improper seizure claim by showing a lack of probable cause, a

previously-convicted plaintiff does not necessarily have to negate an element of

the crime for which he was convicted. Heck, 512 U.S. at 487 n.7 (citation

omitted). But, here, there is no disconnect between the arrest and the crimes for

which he was convicted; the crimes for which he was convicted arose from his

interactions with the deputies that he now challenges. And Mr. Bryner is not

arguing that, while he committed the crimes for which he was convicted, the


                                        -11-
deputies did not have probable cause to believe that he committed those crimes at

the time they arrested and imprisoned him. He is arguing that the deputies did not

have probable cause to arrest him for the crimes for which he was convicted

because he did not commit those crimes. He asserts on appeal that he “never

resisted arrest or disobeyed any order, the police were simply abusive and applied

force without any verbal instructions.” Aplt. Br. at 3. He argued in his amended

complaint that “[a]t no time did [Deputy Rowley] say ‘leave the court house’ or

‘leave the room[.]’” R., Vol. 1 at 159. He also stated that he “received no

Command from Deputy R[o]wley to obey before he grabbed me forcefully and

started shoving me to the door.” Id. And he argued that “[a]t no time throughout

this whole incident did I resist or make any threatening comments or gestures[.]”

Id. at 160. Thus, Mr. Bryner’s arguments seek to undermine the elements of the

crimes for which he was arrested and convicted.

  B. Should the District Court’s Dismissal on Heck v. Humphrey Grounds Have

                               Been Without Prejudice?

      Mr. Bryner is correct, however, in arguing that claims dismissed on Heck v.

Humphrey grounds should be dismissed without prejudice. See Fottler v. United

States, 73 F.3d 1064, 1065 (10th Cir. 1996) (“When a § 1983 claim is dismissed

under Heck, the dismissal should be without prejudice.”). We thus modify the

district court’s decision so that the claims dismissed pursuant to Heck are

dismissed without prejudice.


                                        -12-
                                 C. Excessive Force

      Mr. Bryner’s final assertion is that the magistrate judge erred in finding that

he failed to present factual allegations sufficient to state a claim for excessive

force upon which relief could be granted. He argues that the magistrate judge,

whose reasoning and conclusions were adopted by the district court, erred in

finding:

      Defendant Rowley could have reasonably perceived during this string
      of events that Plaintiff was engaging in disorderly conduct in the
      courthouse and resisting Defendant Rowley’s attempts, as a
      courthouse law enforcement officer, to maintain order by having a
      member of the general public cooperate with a court employee’s
      (Judge Toomey’s clerk’s) reasonable instructions. Finally, when
      Plaintiff pushed back at Defendant Rowley, Defendant Rowley could
      have reasonably perceived that Plaintiff was resisting and engaging a
      law enforcement officer with force.

R., Vol. 1 at 208-09. The magistrate judge noted that “Plaintiff has supplied the

court with a DVD recording of that day, and it is apparent that Plaintiff is a very

large man; thus, Defendant Rowley could have reasonably perceived that he

needed to use a lot of his strength and force to handle a man of Plaintiff’s size.”

Id. at 209 n.10.

      Mr. Bryner argues that the plain language of his pleading alleges that he

provided no resistance and asserts that security cameras’ video recordings show

that the magistrate judge’s conclusion is erroneous. We have reviewed the DVD

and we disagree. In fact, the DVD undercuts a number of Mr. Bryner’s factual

allegations. He asserts that as he was trying to date stamp his documents, he “was


                                          -13-
pushed backwards by Deputy R[o]wley who proceeded to verbally berate me for

disagreeing with [the judge’s clerk].” Id. at 159. He asserts that he “received no

command from Deputy R[o]wley to obey before he grabbed me forcefully and

started shoving me to the door.” Id. He asserts that he had “to push back to

prevent being slammed into the doors [of the Judge’s chambers] and to [inform

the officers that he had left his papers on the counter].” Id. He asserts that the

deputies used “significant” force and that he “was lifted on both shoulders and

shoved with what appeared to be the full force of the deputies.” Id. The DVD,

however, tells a different story.

      Mr. Bryner enters the judge’s chambers shortly after the video starts. He is

there for approximately sixteen minutes before Deputy Rowley arrives. The

second deputy enters shortly thereafter. Although the video does not have sound,

it appears that approximately three minutes later, Deputy Rowley and Mr. Bryner

begin to talk to each other with the deputy using his finger to point at Mr. Bryner.

After a few seconds, Mr. Bryner walks up to, and briefly into, Deputy Rowley’s

finger, evidently trying to move past him. We take as fact Mr. Bryner’s assertion

that at this point he was trying to move to the date stamp. But if there was any

push backwards on the part of Deputy Rowley, it was so light and brief that it is

not visible on the video.

      Deputy Rowley does continue to jab his finger at Mr. Bryner while talking

and then points to the door. He then appears to reach up with his left hand, as if


                                         -14-
he is going to put his hand on Mr. Bryner’s back or arm, possibly to lead him

toward the door. Mr. Bryner then pulls his arm away from the deputy and takes

two or three quick steps backward, apparently to avoid the deputy’s touch.

Deputy Rowley follows, grabs him by the arm briefly, apparently turning him to

face the door, and then puts his hand on his back. While this is happening, the

other deputy also steps behind Mr. Bryner and places one of his hands on

Mr. Bryner’s back. The officers direct Mr. Bryner towards the door. There

appears to be some light pushing involved but it also appears that Mr. Bryner is

lightly resisting moving toward the door. Mr. Bryner is talking throughout this

time and gesturing over his shoulder with his thumb, apparently telling the

officers he has left papers on the counter. The officer and Mr. Bryner stop

moving toward the door; the officers take their hands off Mr. Bryner as he

continues to point towards the counter. Deputy Rowley then returns to the

counter, gets Mr. Bryner’s papers, hands them to him, and then opens the door for

Mr. Bryner and the three leave. Mr. Bryner and the deputies then walk down the

hall, go down the elevator, and walk to the metal detectors where, after some

more conversation, Mr. Bryner is arrested without struggle. After they leave the

judge’s chambers, the deputies do not appear to touch Mr. Bryner again until they

put him in handcuffs.

      Since there is no sound, we must accept Mr. Bryner’s allegation that he was

verbally berated by Deputy Rowley for not complying with the clerk’s request


                                        -15-
that he go to the first floor to file his documents. But the video clearly shows that

Mr. Bryner was not “shoved with what appeared to be the full force of the

deputies.” Id. at 159. Nor was he in any danger of “being slammed into the

doors” by the deputies. Id.

      “When opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court

should not adopt that version of the facts for purposes of ruling on a motion for

summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). Thus, we must

examine whether the force used, as seen on the video tape, was excessive.

      In determining whether a use of force is reasonable under the Fourth
      Amendment, we balance the nature and quality of the encroachment
      on the individual’s Fourth Amendment interests against the
      government’s countervailing interests. But we are mindful:

             Not every push or shove, even if it may later seem unnecessary
             in the peace of a judge’s chambers, violates the Fourth
             Amendment. And we take seriously that this calculus of
             reasonableness must embody allowance for the fact that police
             officers are often forced to make split-second judgments-in
             circumstances that are tense, uncertain, and rapidly
             evolving-about the amount of force that is necessary in a
             particular situation.

             There are three, non-exclusive factors relevant to an excessive
             force inquiry: the severity of the crime at issue, whether the
             suspect poses an immediate threat to the safety of the officers
             or others, and whether he is actively resisting arrest or
             attempting to evade arrest by flight.

      Fisher v. City of Las Cruces, 584 F.3d 888, 894 (10th Cir. 2009)
      (citing Graham [v. Connor, 490 U.S. 386, 396 (1989)]) (internal
      quotation marks and citations omitted). Whether a use of force was


                                         -16-
      reasonable is an objective inquiry, without regard to a police officer’s
      intent or motivation.

Lundstrom v. Romero, 616 F.3d 1108, 1126 (10th Cir. 2010) (citations and

brackets omitted). Here, the severity of the crime at issue, i.e. Mr. Bryner’s

initial refusal to leave, was very mild. But the amount of force used was also

mild, and was used only (1) when Mr. Bryner initially pulled away from Deputy

Rowley and took two or three quick steps backward, and (2) then appeared to

lightly resist because he wanted to get his papers. As to the first of these actions,

the deputies could not have known whether their safety was in danger when

Mr. Bryner quickly pulled away. As to the second, Mr. Bryner was actively,

though lightly, resisting the officers attempt to lead him out the door. When the

officers realized Mr. Bryner’s intent was to retrieve his papers, they retrieved

them for him and then they all proceeded downstairs. From the video, no

reasonable jury could conclude that the use of force that occurred rose to the level

of a constitutional violation.

                                   III. Conclusion

      We affirm the judgment of the district court dismissing the action, but

REMAND to the district court to modify the portion of its dismissal based on

Heck v. Humphrey to be “without prejudice.”


                                                     Entered for the Court


                                                     Michael R. Murphy
                                                     Circuit Judge

                                         -17-
