                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-18-1997

Nelson v. Jashurek
Precedential or Non-Precedential:

Docket 96-3599




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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                      No. 96-3599


                      CARL NELSON,


   Appellant

                           v.

               GEORGE JASHUREK, Patrolman


  On Appeal from the United States District Court
     for the Western District of Pennsylvania
              (D.C. Civ. No. 95-0097E)


     Submitted under Third Circuit LAR 34.1(a)
                 February 19, 1997

BEFORE: GREENBERG, LEWIS, and MCKEE, Circuit Judges

                (Filed: March 18, 1997)


                           Carl Nelson
                           Huntingdon SCI
                           1100 Pike Street
                           Huntingdon, PA 16654-1112

                                Appellant pro se
                           Kathryn J. Kisak
                           Quinn, Buseck, Leemhuis, Toohey
                           & Kroto
                           2222 West Grandview Boulevard
                           Erie, PA 16506-4508

                                Attorneys for appellee



                           1
                         OPINION OF THE COURT



GREENBERG, Circuit Judge.




                            I. BACKGROUND

           Carl Nelson appeals from an order for summary judgment

entered on September 19, 1996, in this action under 42 U.S.C. §

1983 ("section 1983").    On April 18, 1995, Nelson filed this

action against George Jashurek under the Eighth Amendment to the

Constitution.   In his complaint Nelson set forth that Jashurek, a

Sheffield Township police officer, attempted to arrest him on

July 9, 1994.   At that time Nelson was wanted for alleged

violations of conditions of parole following his release from

prison after a homicide conviction.    According to Nelson's

complaint, he disobeyed Jashurek's orders to halt and instead ran

away.   Jashurek pursued and caught Nelson, and a struggle ensued.

 Nelson claims that he then sat down and that when he later got

up from the chair, Jashurek beat him with a flashlight and used

excessive and malicious force to subdue him.    Nelson asserts that

he sustained physical and psychological injuries as a result of

Jashurek's actions.

           After arresting Nelson, Jashurek charged him with

resisting arrest in violation of 18 Pa. Cons. Stat. Ann. § 5104

(West 1983) ("section 5104").    A jury convicted Nelson at a trial

on the criminal charge on October 28, 1994, in the Warren County


                                  2
Court of Common Pleas.     While we do not know whether Nelson

appealed his criminal conviction, he does not claim that any

court has set aside the conviction or that the validity of the

conviction has been thrown into doubt in any other proceeding.

We thus decide this appeal on the assumption that the conviction

is unimpaired.

            In this civil case, which Nelson filed after the

conviction, Jashurek and Nelson filed cross-motions for summary

judgment.    The district court referred the motions to a

magistrate judge who filed a report and recommendation on August

28, 1996.    In his motion, Jashurek argued that Nelson did not

prove the essential elements of his claim because Nelson could

not show that Jashurek had used an objectively unreasonable

amount of force, and he thus was entitled to qualified immunity.

 Jashurek also claimed that he was entitled to a summary judgment

in his favor on the basis of collateral estoppel predicated on

the findings in the criminal trial at which the jury convicted

Nelson.

            The magistrate judge found that Heck v. Humphrey, 512

U.S. 477, 114 S.Ct. 2364 (1994), governs this case.     In Heck v.
Humphrey the Supreme Court made it clear that an action under

section 1983 could not be maintained on the basis of events

leading to a conviction which has not been reversed or impaired

by other official proceedings if a judgment in favor of the

plaintiff in the civil case would imply that the conviction was

invalid.    Id. at 2372.   The magistrate judge then cited the

following example from Heck v. Humphrey of an action that cannot



                                   3
be brought unless the underlying conviction has been reversed or

otherwise impaired:
          An example of this latter category--a § 1983
          action that does not seek damages directly
          attributable to conviction or confinement but
          whose successful prosecution would
          necessarily imply that the plaintiff's
          criminal conviction was wrongful--would be
          the following: 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.
           (This is a common definition of that
          offense. See People v. Peacock,68 N.Y.2d
          675, 505 N.Y.S.2d 594, 496 N.E.2d 683 (1986);
          4 C. Torcia, Wharton’s Criminal Law § 593, p.
          307 (14th ed. 1981).) 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 v. Humphrey, 512 U.S. at       , 114 S.Ct. at 2372 n.6.

          The magistrate judge then concluded as follows:
          Plaintiff's cause of action is a due process
          claim for use of excessive force in his
          arrest. However, he was convicted of the
          crime of resisting arrest based on this
          incident in state court. Because he was
          convicted of the crime of resisting arrest in
          state court, his claim here is precisely that
          described by the Supreme Court in the quoted
          material above as one that will not lie until
          the underlying conviction is reversed or
          called into question. This claim, having not
          accrued, must be dismissed.


App. at 11.   Consequently, the magistrate judge recommended that

the district court grant Jashurek's motion and deny Nelson's

motion.   The magistrate judge did not consider any basis for

granting the motion other than an application of Heck v. Humphrey


                                4
and thus she did not consider Jashurek's qualified immunity

defense.

            The district court adopted the report and

recommendation and thus it granted Jashurek's motion and denied

Nelson's motion.    In adopting the report and recommendation, the

district court, like the magistrate judge, relied only on Heck v.

Humphrey.    Nelson then appealed from the district's court order,

but only to the extent that the district court granted Jashurek's

motion as Nelson does not contend that the court should have

granted his motion.    Rather, he requests that we remand the case

for consideration of his excessive force claim.



                           II. DISCUSSION

            Exercising plenary review, Petruzzi's IGA Supermarkets

Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1230 (3d Cir. 1993),

we will reverse the district court order to the extent that it

granted Jashurek summary judgment.    A comparison of the elements

of the state criminal convictions and Nelson's claim against

Jashurek, compels the conclusion that if the proceedings on the

remand are conducted in accordance with the guidelines we set

forth in this opinion, a judgment in Nelson's favor would not

throw the validity of the judgment of conviction in the criminal

case into doubt.    Nelson was convicted for resisting arrest in

violation of section 5104 which provides that a person is guilty

of resisting arrest if “with the intent of preventing a public

servant from effecting a lawful arrest [he] creates a substantial

risk of bodily injury to the public servant . . . or employs


                                 5
means justifying or requiring substantial force to overcome the

resistance.”    (Emphasis added.).

            The district court treated Nelson's inartfully drafted

pro se complaint as stating a claim under section 1983 and

analyzed the complaint under the Fourth Amendment reasonableness

standard.    The district court was undoubtedly correct in this

approach, and on the remand which will follow this opinion, the

district court should grant Nelson leave to amend his complaint

to assert his claims under section 1983 and the Fourth Amendment.

See Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871

(1989); United State v. Johnstone, No. 95-5833, slip op. at 6-9.

 (3d Cir. Feb. 24, 1997); In re City of Philadelphia Litig., 49

F.3d 945, 962 (3d Cir.), cert. denied, 116 S.Ct. 176 (1995).      A

Fourth Amendment reasonableness inquiry is objective, so the

question in this case is whether Jashurek's actions in

effectuating the arrest were objectively reasonable without

regard for his underlying intent or motivation.    See Johnstone,

slip op. at 7.

            We have read the charge to the jury delivered in the

state criminal case and note that the trial judge, in accordance

with section 5104, told the jury that if Nelson's actions “did

not justify substantial force by [Jashurek], you must find Mr.

Nelson not guilty.”    App. at 122.   Clearly, therefore, inasmuch

as the jury found Nelson guilty and therefore must have concluded

that Jashruek was justified in using "substantial force," Heck v.
Humphrey would bar this action if Nelson's case depended on a

demonstration that Jashurek was not justified in using



                                 6
"substantial force" in arresting him.   Our difficulty with the

district court's result is that the fact that Jashurek was

justified in using "substantial force" to arrest Nelson does not

mean that he was justified in using an excessive amount of force

and thus does not mean that his actions in effectuating the

arrest necessarily were objectively reasonable.   In short, there

undoubtedly could be "substantial force" which is objectively

reasonable and "substantial force" which is excessive and

unreasonable.

           Yet a finding that Jashurek used excessive "substantial

force" would not imply that the arrest was unlawful and thus the

Supreme Court's example of how Heck v. Humphrey can bar a civil

action is not applicable here.   Rather, we believe that the

Supreme Court intended to demonstrate that a civil suit for an

unreasonable seizure predicated on a false arrest would be barred

so long as a conviction for resisting the same arrest remained

unimpaired.   But this case is different because Nelson does not

charge that Jashurek falsely arrested him.   Instead, Nelson

charges that Jashurek effectuated a lawful arrest in an unlawful

manner.   Accordingly, while we do not doubt that even on the

facts as presented by Nelson it will be difficult for him to

establish liability in this case, we do not see why a judgment in

his favor would throw the validity of his conviction into doubt.

Cf. Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)
("Because a successful section 1983 action for excessive force

would not necessarily imply the invalidity of Smithart's arrest

or conviction [for assault with a deadly weapon during a traffic


                                 7
stop], Heck does not preclude Smithart's excessive force

claim.").   Consequently, Heck v. Humphrey does not bar this case,

and we cannot affirm the order of the district court on the

authority of that case.

            We add an important caveat.   The proceedings in the

district court must go forward on the basis that Nelson's

conviction was valid unless the conviction is impaired in other

proceedings such as a reversal on direct appeal, expungement by

executive order, a declaration of invalidity in a state

proceeding, or the issuance of a writ of habeas corpus by a

federal court under 28 U.S.C. § 2254.     Heck v. Humphrey, 512 U.S.

at    , 114 S.Ct. at 2372; see Mosley v. Wilson, 102 F.3d 85,

91-92 (3d Cir. 1996); Smith v. Holtz, 87 F.3d 108, 112 (3d Cir.

1996), cert. denied, 117 S.Ct. 611 (1996).     Therefore, in the

absence of any such impairment, if this case reaches trial, the

trier of fact must be aware that Jashurek was justified in using

"substantial force" in arresting Nelson.     Otherwise there would

be a danger that in returning a general verdict against Jashurek

predicated on a finding that he used excessive force, the trier

of fact might base its verdict on findings not consistent with

the conclusion the jury reached in the criminal case, i.e., that
Jashurek was justified in using "substantial force" to arrest

Nelson.

            Heck v. Humphrey precludes the return of a verdict in

this civil case on the basis of a finding by the jury the

Jashurek was not entitled to use substantial force to arrest

Nelsn as a verdict reached on that basis would be inconsistent


                                 8
with Nelson's conviction.    See Lal v. Borough of Kennett Square,

935 F. Supp. 570, 574-75 (E.D. Pa. 1996); Shelton v. Macey, 883

F. Supp. 1047, 1050 (E.D. Pa. 1995).      In essence, then, the

guiding principle on the remand should be taken from Restatement

(Second) of Torts § 133 (1965): “If the means employed by the

actor for the purpose of effecting the arrest or recapture of

another, or of maintaining the actor's custody of him, are in

excess of those which he is privileged to use . . . the actor is

liable for only so much of the force as is excessive.”       We

reiterate that Nelson's conviction establishes that Jashurek was

privileged to use substantial force.      We leave it to the district

court on remand to determine whether it will instruct the jury

that Nelson was convicted of resisting arrest or whether the

court merely will tell the jury that Jashurek was justified in

using substantial force to arrest Nelson.

          In reaching our result we take note of Simpson v. City

of Pickens, 887 F. Supp. 126 (S.D. Miss. 1995).       The district

court in Simpson held that even if a defendant in a criminal

action was convicted validly of resisting arrest, the criminal

defendant was not necessarily barred from bringing a section 1983

excessive force action under the Fourth and Fourteenth Amendments

because “it is possible for a finding that [the defendant] was

resisting arrest to coexist with a finding that the police used

excessive force to subdue him.”       Id. at 129.   We are in accord

with the Simpson analysis.

          Jashurek presents an alternative ground to affirm,

urging here, as he did in the district court, that he is entitled


                                  9
to summary judgment on the basis of qualified immunity.     While we

will assume that if the district court had denied Jashurek's

motion for summary judgment on the basis of qualified immunity

and he then appealed we could have exercised jurisdiction

pursuant to the collateral order doctrine, Mitchell v. Forsyth,

472 U.S. 511, 530, 105 S.Ct. 2806, 2817 (1985), the district

court never ruled expressly on the qualified immunity defense for

it granted Jashurek summary judgment on the basis of Heck v.

Humphrey alone.    Furthermore, in these circumstances, we cannot

say that the court inferentially denied the motion for summary

judgment to the extent that Jashurek predicated it on a claim of

qualified immunity.    Cf. Musso v. Hourigan, 836 F.2d 736, 741 (2d

Cir. 1988) ("[I]nterlocutory review is appropriate when a

district court denies a motion for summary judgment without

addressing a proffered qualified immunity defense.").    Thus, even

if we disregard the fact that Jashurek understandably has not

filed a notice of appeal, we cannot regard this case as an appeal

from the denial of a motion for summary judgment on the grounds

of qualified immunity, and consequently, we do not have

jurisdiction on the basis of the collateral order doctrine.

          Instead, as Jashurek correctly recognizes, brief at 14,

he raises qualified immunity as an alternative ground to affirm,

and we consider the defense only on that basis.    After a careful

review of the matter we have concluded that we should not

consider the qualified immunity defense in the first instance,

particularly as genuine disputes of material facts may exist with

respect to it.    See Johnson v. Jones, 115 S.Ct. 2151 (1995).   Of



                                 10
course, Jashurek is free to renew his motion for summary judgment

on the basis of qualified immunity on the proceedings on the

remand in the district court.



                         III. CONCLUSION

          In closing we emphasize that we have made a narrow

ruling on the law in this case.    Thus, we do not suggest that

Nelson ultimately may be able to recover nor do we render any

opinion on the validity of Jashurek's qualified immunity defense

or whether he used excessive force.    Nevertheless, in view of our

conclusions, we will reverse the judgment of September 19, 1996,

to the extent that it granted Jashurek summary judgment under

Heck v. Humphrey and will remand the case to the district court

for further proceedings consistent with this opinion.




                                  11
