                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2008

Lora-Pena v. FBI
Precedential or Non-Precedential: Precedential

Docket No. 07-3511




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Recommended Citation
"Lora-Pena v. FBI" (2008). 2008 Decisions. Paper 933.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/933


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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT

                    No. 07-3511
                 ________________

               NELSON LORA-PENA,
                                               Appellant

                           v.


  FEDERAL BUREAU OF INVESTIGATION; UNITED
STATES MARSHAL SERVICE; DEPUTY US MARSHAL
ROBERT DENNEY; DEPUTY US MARSHAL JACK LEO;
DEPUTY US MARSHAL WILLIAM DAVID; SUP DEP US
      MARSHAL THOMAS DAVIS; FUGITIVE
APPREHENSION TASK FORCE; TASK FORCE OFFICER
  FLETCHER; TASK FORCE OFFICER DAILY; TASK
FORCE OFFICER BOWERS; STATE POLICE TROOPER
             HAHN; UNITED STATES
      ____________________________________

    On Appeal from the United States District Court
              for the District of Delaware
          (D.C. Civ. No. 06-cv-00442-SLR)
      District Judge: Honorable Sue L. Robinson
    _______________________________________

      Submitted Under Third Circuit LAR 34.1(a)
                   June 10, 2008
               Before: SLOVITER, BARRY
              and NYGAARD, Circuit Judges

               (Opinion Filed: June 20, 2008)


Nelson Lora-Pena
Canaan USP
P. O. Box 300
Waymart, PA 18474
       Appellant

Seth M. Beausang, Esq.
Office of the U.S. Attorney
1007 North Orange Street, Suite 700
PO Box 2046
Wilmington, DE 19899
       Counsel for Appellees

                _______________________

                       OPINION
                _______________________

PER CURIAM

      This is an appeal from the District Court’s dismissal of

Nelson Lora-Pena’s civil complaint. For the following reasons,



                             -2-
we will vacate the District Court’s order and remand the case for

further proceedings.

       On July 20, 2006, Appellant, an inmate at United States

Penitentiary-Canaan, initiated a pro se civil action against a

Pennsylvania state trooper, various U.S. Marshals, the U.S.

Marshal Service, and the Federal Bureau of Investigation.1 The

action arises out of Lora-Pena’s April 9, 2005 arrest for

violating the terms of his supervised release imposed in the

District of Rhode Island. Lora-Pena alleged that, during the

arrest, officers repeatedly punched and kicked him after he fell

to the floor. The arresting officers testified that Lora-Pena had


       1
        Appellant’s action is a mix of Bivens and 42 U.S.C. §
1983 claims. See Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens,
the Supreme Court recognized a private cause of action to
recover damages against a federal agent for violations of
constitutional rights. Therefore, constitutional claims against
federal officers are properly brought under Bivens and any
claims against state officers are § 1983 claims.

                               -3-
both resisted arrest and assaulted them. Deputy Marshal Jack

Leo described Lora-Pena as “scratching,” “clawing,” and

“punching” him as well as using his two pit bulls to assault two

deputy United States Marshals. Leo admitted to striking Lora-

Pena, but only to an extent necessary to protect his firearm and

to subdue him. As a result of the circumstances of the arrest,

Lora-Pena was found guilty by a jury of three counts of assault

on a federal officer in violation of 18 U.S.C. § 111 and one

count of resisting arrest. See United States v. Lora-Pena, 227

Fed.Appx. 162 (3d Cir. 2007) (affirming Appellant’s

conviction).

       In this civil suit, Lora-Pena alleged that Leo used

excessive force against him during the arrest in violation of the

Eighth Amendment. Further, Lora-Pena claimed that officers

violated his Fifth and Fourteenth Amendment rights to due

process of law, “including the right to be free from unjustified

                               -4-
and excessive force utilized by federal, state or local police.”

The District Court dismissed Appellant’s complaint for failure

to state a claim. Fed. R. Civ. P. 12(b)(6).

       Our standard of review of the District Court’s dismissal

under Rule 12(b)(6) is plenary. Atkinson v. LaFayette College,

460 F.3d 447, 451 (3d Cir. 2006). Plenary review requires us to

accept as true all allegations in the complaint and all reasonable

inferences that can be drawn therefrom, and view them in the

light most favorable to the plaintiff. See Evancho v. Fisher, 423

F.3d 347, 350 (3d Cir. 2005).

       We begin by noting that the District Court properly

analyzed Lora-Pena’s excessive force claims under the Fourth

Amendment. See Graham v. Connor, 490 U.S. 386, 398-99

(1989) (Eighth Amendment standard applies only after the State

has complied with constitutional guarantees traditionally

associated with criminal prosecutions).

                                -5-
       The Supreme Court has held that, if judgment in favor of

a plaintiff in a civil suit under 42 U.S.C. § 1983 would

necessarily imply the invalidity of a prior criminal conviction,

the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been

invalidated. See Heck v. Humphrey, 512 U.S. 477, 484-87

(1994).2 The trial judge instructed the jury in Lora-Pena’s

criminal case that in order to find Lora-Pena guilty of assaulting

a federal officer, they had to determine that the officer was

acting in the performance of his official duties. The District

Court reasoned that Heck barred Lora-Pena’s claims because an

officer who uses excessive force is not, in good faith,

performing his official duties. The District Court also found that


       2
        Although Heck involved a § 1983 action by a state
prisoner, the reasoning in Heck has been applied to bar Bivens
claims. See, e.g., Williams v. Hill, 74 F.3d 1339, 1341 (D.C.
Cir. 1996) (per curiam).

                               -6-
Lora-Pena’s excessive force claim was inextricably intertwined

with his convictions for resisting arrest and assaulting federal

officers and therefore must be dismissed pursuant to Heck.

       We cannot agree with the District Court that Lora-Pena’s

convictions for resisting arrest and assaulting federal officers

bars his civil suit at the Rule 12(b)(6) stage. Despite the

government’s argument to the contrary, the question of whether

the officers used excessive force was not put before the jury.

The jury only determined whether the officers were acting

within the scope of their official duties. Nowhere in the jury

instructions did the trial judge state that the jury must determine

whether the officers used excessive force against Lora-Pena. It

is conceivable that a law enforcement officer, acting within the

scope of his official duties, may use force that is excessive in

effectuating a lawful arrest. See Nelson v. Jashurek, 109 F.3d

142, 145-146 (3d. Cir. 1997). In Nelson, the plaintiff had been

                                -7-
convicted in state court of resisting arrest. Under Pennsylvania

law, to convict the plaintiff, the jury had to find that the officer

involved “was justified in using ‘substantial force.’” Nelson,

109 F.3d at 145. In reversing the district court’s grant of

summary judgment, we determined 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 unreasonable.” Id. Unlike

in Heck, Nelson was not arguing that Jashurek falsely arrested

him but rather “that Jashurek effectuated a lawful arrest in an

unlawful manner.” Id. at 146 (emphasis added). Similarly, Lora-

Pena’s convictions for resisting arrest and assaulting officers

would not be inconsistent with a holding that the officers, during

a lawful arrest, used excessive (or unlawful) force in response

to his own unlawful actions.

                                -8-
       We are not suggesting that Lora-Pena will be able to

recover damages, only that the rationale of Heck does not

present an absolute bar to his claim. In order to succeed on his

excessive force claim, Lora-Pena must still show that the

officers’ actions were unreasonable in light of the circumstances

of the arrest. See Kopec v. Tate, 361 F.3d 772, 776-77 (3d Cir.

2004). For the reasons stated above, we will vacate the District

Court’s order entered on July 16, 2007 and remand the case for

further proceedings consistent with this opinion.




                               -9-
