               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0011n.06

                                       Case No. 15-5566

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                FILED
                                                                                Jan 08, 2016
JEREMY PARVIN,                                      )                       DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )
                                                    )      ON APPEAL FROM THE UNITED
v.                                                  )      STATES DISTRICT COURT FOR
                                                    )      THE EASTERN DISTRICT OF
DAVID CAMPBELL, et al.,                             )      TENNESSEE
                                                    )
       Defendants-Appellees.                        )
                                                    )
                                                    )


BEFORE: MOORE, CLAY, and GILMAN, Circuit Judges.

       CLAY, Circuit Judge. Plaintiff Jeremy Parvin appeals an adverse summary judgment

on his 42 U.S.C. § 1983 excessive force claim against Defendant David Campbell, a police

ofﬁcer employed by the City of Chattanooga, Tennessee. The district court granted summary

judgment for Campbell on qualified immunity grounds.            We AFFIRM the district court’s

judgment, but we do so on different grounds. We hold that Parvin’s claim is barred under Heck

v. Humphrey, 512 U.S. 477 (1994), because success on that claim would necessarily call into

question Parvin’s state criminal conviction which arose from the same underlying facts. There is

therefore no reason to reach the issue of qualified immunity.
Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

                                                I.

                                        BACKGROUND

                                       Factual Background

       The undisputed facts are as follows. Campbell is a police ofﬁcer employed by the City of

Chattanooga, a position he has held for four years. On June 13, 2012, just after midnight,

Campbell was dispatched to 901 Clear View Lane in Chattanooga for a domestic dispute

involving Parvin.    Campbell was wearing his police uniform and driving a police-marked

vehicle. When he arrived at the residence, Campbell parked his patrol car, walked up to the

door, and rang the doorbell. The parties dispute what happened next.

   A. Parvin’s Testimony

       According to Parvin, he opened the door for Campbell while his wife, Jackie Newman,

stood behind him. Parvin then told Campbell that Newman was the initial aggressor and advised

him to speak with her. Parvin was bleeding and had marks on his body, whereas Newman

displayed no signs of physical harm.

       Campbell asked Parvin to step outside, but he refused. Parvin was not intoxicated, nor

was he noisy or abusive. Campbell then entered Parvin’s residence and instructed him to turn

around to be handcuffed. Then, “in a split second [Campbell placed Parvin] in some type of

police move/hold and just violently slammed [him] onto [his] stone floor.” (R. 17-7, Parvin

Deposition, PageID# 127.) Parvin, who weighs one hundred pounds less than Campbell, felt

severe pain from the effects of what happened. At some point during the takedown, Campbell

sprayed oleoresin capsicum (“pepper spray”) in Parvin’s face.         Parvin was then placed in

handcuffs and put into the rear seat of the patrol vehicle that had brought Campbell to the scene.




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Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

       Parvin testified that this entire exchange between him and Campbell lasted no more than

ten or fifteen seconds. Parvin also testified that he never resisted arrest or attempted to get away,

nor did he even know that he was being arrested by Campbell.

   B. Campbell’s and Newman’s Testimony

       Campbell and Newman tell a different version of the events. When Campbell arrived at

the residence, he was met at the door by Newman, who was hysterical. Newman told Campbell

that Parvin was intoxicated and had attacked her. According to Newman, she “ran up the steps,

flung open the door, and told the police that [her] husband was trying to kill [her] son” and asked

for Campbell’s help. (R. 17-8, Jackie Newman Deposition, PageID# 137.) Campbell observed

redness on Newman’s upper chest, neck, forearms, and upper arms.

       Newman gave Campbell permission to enter the residence to investigate the reported

domestic dispute. When Campbell walked into the residence, Parvin came around a corner and

told Newman she needed to leave. Campbell observed that Parvin was shirtless and that his

body had scratches. Campbell also observed that Parvin was intoxicated in that he emitted an

odor of intoxicants. At some point, another officer arrived on the scene.

       Campbell wanted to separate Parvin and Newman to try to determine who the primary

aggressor was. Campbell asked Parvin to step out onto the front porch so that he could “keep

watch” of Parvin and Newman while they were separated. (R. 17-5, David Campbell Affidavit,

PageID# 101.) In particular, Campbell was concerned that either Parvin or Newman would go

out of sight and retrieve a weapon. And for his own safety, Campbell wanted Parvin “out of his

environment.” (Id. at 102.) Campbell asked Parvin to step outside of the residence “a number of

times,” but Parvin refused. (Id.) Campbell told Parvin that he would be detained until Campbell

could make a determination as to who the primary aggressor was. Parvin still refused to come



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Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

outside. Campbell stepped towards Parvin and instructed him to put his hands behind his back,

but Parvin resisted.

       Campbell then reached for Parvin’s wrist, but Parvin “pulled back and balled up his fist

as if he intended to strike [Campbell].” (R. 17-5 at 102.) In response, Campbell grabbed

Parvin’s other hand and managed to take Parvin to the floor using a “straight arm bar takedown

procedure.” (Id.) Once on the ground, Parvin continued to resist by putting his arms underneath

himself and resisting being handcuffed. According to Newman, Parvin “continued to fight …

continued to cuss, spit, and resist [arrest] until [an officer] had to mace him.” (R. 17-8 at 138.)

Campbell stated that after he sprayed Parvin with pepper spray, Parvin stopped resisting.

Campbell was then able to handcuff Parvin and place him under arrest.

   C. The Charged Offense

       Parvin was indicted for two counts of domestic assault and one count of resisting arrest.

The two assault counts were dismissed by the State before trial. On May 5, 2014, a bench trial

was held before the Honorable Rebecca J. Stern of the Criminal Court for Hamilton County,

Tennessee on one count of resisting arrest under Tennessee Code § 39-16-602. Following the

trial, the court found Parvin guilty of resisting arrest and sentenced him to six months of

imprisonment, suspended to unsupervised probation. Parvin appealed his conviction to the Court

of Criminal Appeals of Tennessee, which affirmed the conviction. State v. Parvin, 2015 WL

2128585 (Tenn. Crim. App. May 6, 2015), cert. denied (Tenn. Aug. 13, 2015).

                                    Procedural Background

       On June 9, 2013, Parvin filed a complaint against Campbell, the City of Chattanooga, and

John Doe 1, asserting claims for violations of his right to be free from excessive force and false




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Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

arrest pursuant to § 1983 and the Fourth Amendment. Approximately nine months later, Parvin

voluntarily dismissed the City of Chattanooga from this action.

       Campbell filed a motion for summary judgment based on qualified immunity. In his

response, Parvin acknowledged that the false arrest claim against Campbell, as well as the claims

against John Doe 1, should be dismissed. On May 6, 2015, the district court entered its order

granting Campbell’s motion for summary judgment and dismissed Parvin’s claim on qualified

immunity grounds. Parvin now appeals that ruling.

                                               II.

                                          DISCUSSION

                                      Standard of Review

       We review a district court’s grant of summary judgment on the basis of qualified

immunity de novo. Dixon v. Univ. of Toledo, 702 F.3d 269, 273 (6th Cir. 2012). Summary

judgment is appropriate where no genuine dispute of material fact exists and the moving party is

entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In ruling on a motion for summary

judgment, we must view the facts contained in the record and all inferences that can be drawn

from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus.

Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v.

Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). We cannot weigh the evidence or determine the

truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

       The moving party bears the initial burden of demonstrating that no genuine issue of

material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a

showing, the nonmoving party must present some significant, probative evidence indicating the

necessity of a trial for resolving a material, factual dispute. Id. at 324. A mere scintilla of



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Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

evidence is not enough. Liberty Lobby, 477 U.S. at 252. Our role is limited to determining

whether the case contains sufficient evidence from which a jury could reasonably find for the

non-moving party. Id. at 248-49.

                                            Analysis

       It is well settled under Heck that when an individual like Parvin brings a § 1983 claim

against the arresting officer, “the district court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at

487. If so, the claim is barred unless he proves that his “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.

       In order to determine whether Heck precludes Parvin’s § 1983 claim that Campbell used

excessive force, we must first determine whether a judgment in Parvin’s favor on this claim

would necessarily imply the invalidity of his conviction for resisting arrest under Tennessee

Code § 39-16-602. We conclude that it would.

       We have recognized two circumstances under which an excessive force claim might

conflict with a conviction. “The first is when the criminal provision makes the lack of excessive

force an element of the crime.” Schreiber v. Moe, 596 F.3d 323, 334 (6th Cir. 2010) (citing

Heck, 512 U.S. at 486 n.6). “The second is when excessive force is an affirmative defense to the

crime . . .” Id. (citing Cummings v. City of Akron, 418 F.3d 676, 684 (6th Cir. 2005), for the

proposition that “an assault conviction barred an excessive-force claim because the plaintiff did

not raise excessive force as a defense.”). See also Gottage v. Rood, 533 F. App’x 546, 550 (6th




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Jeremy Parvin v. David Campbell, et al.

Cir. 2013). In each of these circumstances, the § 1983 suit would “seek[ ] a determination of a

fact that, if true, would have precluded the conviction.” Schreiber, 596 F.3d at 334.

       As to the first basis for applying Heck—i.e., where a plaintiff asserts a claim that

contradicts an element of the underlying criminal offense—the Supreme Court gave the

following example:

       A state defendant is convicted of and sentenced for the crime of resisting arrest,
       defined as intentionally preventing a peace officer from effecting a lawful arrest . .
       . He then brings a § 1983 action against the arresting officer, seeking damages for
       violation of his Fourth Amendment right to be free from unreasonable seizures.
       In order to prevail in this § 1983 action, he would have to negate an element of
       the offense of which he has been convicted. Regardless of the state law
       concerning res judicata, . . . the § 1983 action will not lie.

Heck, 512 U.S. at 487 n.6. But this example does not apply in our circumstances because Parvin

was found guilty of resisting arrest under Tennessee Code § 39-16-602, which does not have, as

an element, that the arrest be lawful.

       We turn then to the second basis for applying Heck—i.e., where the plaintiff’s claim

could have been asserted in criminal court as an affirmative defense. “[U]nder Tennessee law,

an officer’s excessive use of force is a defense to a charge of resisting or evading arrest; thus, a

guilty plea and resultant conviction of such a charge necessarily includes a finding that the

officer did not use excessive force.” Roberts v. Anderson, 213 F. App’x 420, 427 (6th Cir. 2007)

(referring to Tennessee Code § 39-16-602) (citations omitted).

       As we have previously found that an officer’s excessive use of force is a defense to a

charge of resisting arrest under Tennessee law, Parvin’s resisting arrest conviction barred his

excessive force claim because he did not raise excessive force as a defense. Parvin’s excessive

force claim challenges his underlying conviction and is, therefore, barred under Heck.




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Jeremy Parvin v. David Campbell, et al.

        But the analysis does not end here. For Heck to bar a § 1983 claim, success on the claim

must necessarily imply the invalidity of the conviction. Accordingly, both the § 1983 claim and

the conviction must arise out of the same events. See Cummings, 418 F.3d at 682-83 (finding

that the “struggle between [the plaintiff] and the officers gave rise to both [the plaintiff’s] assault

conviction and the excessive force claim, and the two are inextricably intertwined.”) On the

other hand, an excessive force claim is not barred when the alleged use of force occurred after

the suspect was handcuffed and brought under control. See Coble v. City of White House,

2009 WL 2850764, at *8-9 (M.D. Tenn. Aug. 29, 2009), rev’d on other grounds, 634 F.3d 865

(6th Cir. 2011). In such a case, the force would not be “inextricably intertwined” with the

suspect’s resistance to arrest.

        This case falls much closer in that spectrum to the Cummings situation. Parvin made no

effort to argue excessive force after arrest to the district court, nor does he do so on appeal. Both

Parvin’s and Campbell’s versions of facts describe Parvin being handcuffed after he was pepper-

sprayed.    Parvin specifically argues that Campbell used excessive force before he was

handcuffed. Therefore, under our prior holdings, Parvin’s excessive force claim arises out of the

same conduct that led to his conviction.

        Moreover, Parvin’s claim is not that Campbell used excessive force after Parvin stopped

resisting or to stop his resistance. Rather, his claim is based solely on his assertions that he did

not resist arrest, did nothing wrong, and was attacked by Campbell for no reason. Thus, Parvin’s

suit “squarely challenges the factual determination that underlies his conviction for resisting an

officer” and, if he prevails, “he will have established that his criminal conviction lacks any

basis.” Arnold v. Town of Slaughter, 100 F. App’x 321, 324-25 (5th Cir. 2004). This is exactly

the type of claim that is barred by Heck.



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Case No. 15-5566
Jeremy Parvin v. David Campbell, et al.

       The fact remains that Parvin’s conviction has not been overturned or challenged through

habeas. The Court of Criminal Appeals of Tennessee affirmed Parvin’s conviction and the

Tennessee Supreme Court denied certiorari. The United States Supreme Court made it clear in

Heck that to recover damages for alleged excessive force that would render a conviction 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.”

Heck, 512 U.S. at 486-87. Parvin has done none of these things. He cannot now be allowed to

succeed in a civil action in which he alleges that he did not fight with Campbell and instead

complied with all of his commands. This would fly in the face of the Heck doctrine, which was

created to prevent just these types of challenges. For this reason, Campbell is entitled to

summary judgment.

                                        CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s grant of summary

judgment in favor of Defendant David Campbell.




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