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

                            FOR THE TENTH CIRCUIT                           July 31, 2018
                        _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
 HAZHAR A. SAYED,

       Plaintiff - Appellee,

 v.                                                         No. 17-1445
                                               (D.C. No. 1:16-CV-02712-WJM-MJW)
 LT. PAGE VIRGINIA, Sterling                                 (D. Colo.)
 Correctional Facility; CAPT. MICHAEL
 TIDWELL, Sterling Correctional Facility;
 SGT. ROBERT HRADECKY, Sterling
 Correctional Facility,

       Defendants - Appellants,

 and

 UNKNOWN JOHN DOE 1, C/O Sterling
 Correctional Facility; UNKNOWN JOHN
 DOE 2, C/O Sterling Correctional Facility,

       Defendants.
                        _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before BACHARACH, PHILLIPS, and McHUGH, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Hazhar A. Sayed was involved in an altercation with prison officials at

Colorado’s Sterling Correctional Facility (S.C.F.). As a result of the incident, he was

convicted on two counts of assault. He later brought this action under 42 U.S.C.

§ 1983, claiming the defendant prison officials violated his First and Eighth

Amendment rights by assaulting him in retaliation for filing a grievance. Defendants

moved to dismiss under Fed. R. Civ. P. 12(b)(6), asserting they were entitled to

qualified immunity—not because the complaint failed to allege a violation of clearly

established law—but because the claims were barred by Heck v. Humphrey, 512 U.S.

477 (1994). The district court denied the motion, ruling that defendants forfeited

qualified immunity by failing to engage in any relevant analysis, that they were not

entitled to it in any event, and, further, that the claims were not barred by Heck.

Defendants filed this interlocutory appeal. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm the denial of qualified immunity. To the extent defendants appeal

the district court’s ruling under Heck, we dismiss the appeal for lack of jurisdiction.

                                            I

      Because this case was resolved on a motion to dismiss, we adopt the facts

pleaded in the first amended complaint. See Peterson v. Jensen, 371 F.3d 1199, 1201

(10th Cir. 2004). According to the first amended complaint, Mr. Sayed was called to

S.C.F.’s control center, where he was met by defendants Captain Michael Tidwell,

Lieutenant Page Virginia, Sergeant Robert Hradecky, and two unknown officers.

Capt. Tidwell ordered him to step out to a vestibule area to discuss a grievance he

filed against Lt. Virginia. Once outside, Capt. Tidwell “immediately struck”

                                            2
Mr. Sayed “with his fist on the right side of [his] face, causing immense pain and

injury to [his] right eye.” R. at 43. Mr. Sayed “staggered backwards, raising [his]

hands to fend off additional blows and begging for an explanation as to why [he] was

hit.” Id. Capt. Tidwell screamed that Mr. Sayed was snitching and if he did not stop,

he would hit him every time he saw him. Mr. Sayed attempted to move away but he

was “tackled by Sgt. Hradecky” and the two other unknown officers. Id. Mr. Sayed

was then restrained and “punched and kicked by all,” including Capt. Tidwell, who

struck him “in the head and neck area repeatedly.” Id. at 44. Mr. Sayed was unsure

whether Lt. Virginia participated in the assault, but he knew she did not stop it.

      At one point during the melee, Capt. Tidwell grabbed Mr. Sayed’s little finger

on his right hand and “twisted it, breaking it willfully and intentionally. He then

stated[,] ‘We’re even now.’” Id. at 44. Afterwards, he announced on the intercom to

all other inmates: “Hey everybody, Mr. Sayed is a federal informant and a snitch and

he’s serving a sentence for sexual assault and has a fake mittimus.” Id. (internal

quotation marks omitted). He then turned to Mr. Sayed and said, “See how we deal

with snitches in S.C.F.” Id. (internal quotation marks omitted). Mr. Sayed was put

in segregation and was later transferred to the state penitentiary. He “was also served

with false disciplinary reports, convicted of said [disciplinary violations,] and then

charged with criminal assault against the officers.” Id. He avers that he now suffers

a permanent disability in his right hand.

      Based on these allegations, Mr. Sayed claimed defendants violated his First

Amendment right of access to the courts by retaliating against him for filing a

                                            3
grievance. He also claimed defendants violated his Eighth Amendment rights, both

by assaulting him and because Lt. Virginia did not stop the assault.1

      Defendants moved to dismiss the suit under Rule 12(b)(6) based on qualified

immunity. They recited the relevant qualified immunity standards in one paragraph

that concluded, “For the reasons set forth below, [Mr.] Sayed fails to allege that

Defendants violated his clearly established constitutional rights.” Id. at 57. But the

argument that followed did not address qualified immunity. Instead, defendants

invoked Heck, which bars claims brought under 42 U.S.C. § 1983 if “a judgment in

favor of the plaintiff would necessarily imply the invalidity of [the plaintiff’s]

conviction or sentence.” Heck, 512 U.S. at 487. According to defendants, Heck

barred Mr. Sayed’s claims because he had been convicted on two counts of assault as

a result of the altercation. Defendants attached to their motion to dismiss three

verdict forms indicating that Mr. Sayed had been found not guilty of first degree

assault but guilty of second and third degree assault. Defendants argued that

Mr. Sayed’s claims necessarily implied that these convictions were invalid.

      Mr. Sayed’s response interpreted the motion to dismiss as raising two specific

defenses: qualified immunity and Heck. As to the former, he argued that defendants

were not entitled to qualified immunity because the first amended complaint stated

plausible violations of his clearly established rights to be free from retaliation and



      1
         Additionally, Mr. Sayed alleged that he lost personal property as a result of
the incident, but on appeal, he denies that he separately pleaded a due process claim
for the deprivation of his property. We do not consider the issue.
                                            4
excessive force. As to the latter, he argued that Heck should not bar his claims

because they did not imply that his convictions were invalid. He set forth the

elements of second and third degree assault and explained that his claims would not

negate any elements necessary to sustain his convictions. He also pointed out that all

of the actions for which he was convicted could have occurred after defendants’

retaliatory actions.

       Defendants’ reply brief addressed only Heck, without mentioning qualified

immunity at all.

       A magistrate judge recommended that the motion to dismiss be granted, but

the district court overruled that recommendation and denied the motion to dismiss.

The court determined that defendants forfeited qualified immunity by failing to

engage in any relevant analysis as to whether the first amended complaint alleged a

violation of clearly established rights. The court observed that defendants did not

cite authority showing they were entitled to qualified immunity on the facts alleged,

nor did they show the rights allegedly violated were not clearly established. Further,

the court determined that even if they had preserved their qualified immunity

defense, the first amended complaint plausibly alleged violations of Mr. Sayed’s

clearly established constitutional rights and, thus, defendants were not entitled to

qualified immunity. Finally, the court ruled that Mr. Sayed’s claims were not barred

by Heck. Defendants subsequently filed this interlocutory appeal challenging the

district court’s rulings.



                                           5
                                            II

      “The denial of qualified immunity is an appealable final order under 28 U.S.C.

§ 1291 if it turns on legal issues.” Keith v. Koerner, 707 F.3d 1185, 1187 (10th Cir.

2013). “Determining whether a complaint sufficiently alleges a clearly established

violation of law is an issue of law and, therefore, an appealable final decision over

which we have jurisdiction.” Id. We review this legal question de novo. Id.

      “Although summary judgment provides the typical vehicle for asserting a

qualified immunity defense, we will also review this defense on a motion to dismiss.”

Peterson, 371 F.3d at 1201. “Asserting a qualified immunity defense via a Rule

12(b)(6) motion, however, subjects the defendant to a more challenging standard of

review than would apply on summary judgment.” Id. “At the motion to dismiss

stage, it is the defendant’s conduct as alleged in the complaint that is scrutinized for

objective legal reasonableness.” Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir.

2014) (brackets and internal quotation marks omitted). We consider “(1) whether the

facts that a plaintiff has alleged make out a violation of constitutional right, and

(2) whether the right at issue was clearly established.” Keith, 707 F.3d at 1188

(internal quotation marks omitted). A plaintiff need “only allege enough factual

matter” to state a claim that is “plausible on its face and provide fair notice to a

defendant.” Id. (internal quotation marks omitted).

      A. Forfeiture of Qualified Immunity

      Defendants first challenge the district court’s determination that they forfeited

qualified immunity. They assert the court improperly required them to show that

                                            6
they were entitled to the defense rather than require Mr. Sayed to show that qualified

immunity was inappropriate. They point out that “[o]nce the defense of qualified

immunity is raised, as it was in this case, a ‘heavy [two-part] burden’ is then shifted

to the plaintiff to show that qualified immunity is not appropriate.” Aplt. Br. at 13

(quoting Buck v. City of Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008)).

      The flaw in this argument, however, as revealed by defendants’ citation to

Buck, is that it employs the summary judgment standard for analyzing the qualified

immunity defense. See Buck, 549 F.3d at 1277 (“In response to [defendant’s]

qualified immunity-based motion for summary judgment, the Plaintiffs must satisfy a

heavy two-part burden . . . .” (emphasis added)). But defendants did not file a

summary judgment motion—they raised qualified immunity in a motion to dismiss,

which, as we have said, “subjects the defendant to a more challenging standard of

review than would apply on summary judgment,” Peterson, 371 F.3d at 1201. Again,

on a motion to dismiss, we evaluate “the defendant’s conduct as alleged in the

complaint.” Thomas, 765 F.3d at 1194 (internal quotation marks omitted). Thus, the

district court did not improperly shift the burden to defendants to show they were

entitled to qualified immunity; they assumed the more challenging standard by

raising the defense at the motion-to-dismiss stage rather than at summary judgment.

      Although the district court faulted defendants for failing to argue in favor of

qualified immunity, the court correctly recognized that defendants did not address the

dual qualified immunity inquiry—viz., whether the complaint plausibly alleged a

constitutional violation and whether the rights at issue were clearly established.

                                           7
Indeed, defendants merely recited general qualified immunity principles in a

five-sentence paragraph. They then proceeded with a Heck analysis, but they did not

discuss the allegations in the complaint or dispute whether there was a constitutional

violation or whether the rights asserted were clearly established. Nor did they

address qualified immunity in their reply brief. This certainly suggests defendants

forfeited qualified immunity, at least for purposes of Rule 12(b)(6).

      Nevertheless, we have discretion to overlook a potential forfeiture. See Cox v.

Glanz, 800 F.3d 1231, 1244-46 & n.7 (10th Cir. 2015) (exercising court’s discretion

to overlook a potential forfeiture under the clearly-established prong of the qualified

immunity analysis, in part because the issue is a purely legal one). Therefore,

assuming without deciding that defendants failed to preserve qualified immunity, we

exercise our discretion to consider it on the merits and proceed to evaluate

defendants’ qualified immunity arguments.

      B. Qualified Immunity & Heck

      Defendants have not argued, either in the district court or on appeal, that, apart

from Heck, the first amended complaint fails to state a violation of clearly established

rights. In fact, they concede it does. See Aplt. Br. at 25 (“Absent the Heck argument,

the facts set forth by [Mr.] Sayed, which described a malicious physical attack on his

person by at least two correctional officers, would no doubt state a violation of the

Eighth Amendment.”). However, they insist they are entitled to qualified immunity

precisely because the claims are barred by Heck. According to defendants, the

district court erred in separately analyzing the two issues because they are

                                           8
“‘inextricably intertwined.’” Id. at 17 (quoting McAdam v. Warmuskerken,

517 F. App’x 437, 438 (6th Cir. 2013) (per curiam) (unpublished)). We are

unpersuaded and lack jurisdiction to consider the district court’s Heck determination.

       Qualified immunity and Heck are analytically distinct doctrines: qualified

immunity asks whether a defendant violated a constitutional or statutory right that

was clearly established, Thomas, 765 F.3d at 1194; Heck evaluates whether a

favorable judgment on a prisoner’s § 1983 claim “would necessarily imply the

invalidity of his conviction or sentence,” 512 U.S. at 487. The Heck analysis does

not bear on the qualified immunity inquiry, and because Heck issues are effectively

reviewable on appeal while the denial of qualified immunity is not, courts generally

decline to exercise jurisdiction over Heck issues raised on interlocutory appeal from

the denial of qualified immunity. See Cunningham v. Gates, 229 F.3d 1271, 1284

(9th Cir. 2000) (holding that the denial of qualified immunity is an immediately

appealable collateral order but Heck rulings are not because they are effectively

reviewable on appeal); id. at 1284-85 (refusing to consider Heck issues under the

court’s pendent jurisdiction because “[t]he issues . . . on interlocutory appeal [from

the denial of qualified immunity] are analytically distinct from the Heck analysis”);

see also Harrigan v. Metro Dade Police Dep’t, 636 F. App’x 470, 474-76 (11th Cir.

2015) (per curiam) (unpublished) (affirming denial of qualified immunity and

separately holding that district court’s Heck ruling was neither a final decision within

the collateral order doctrine nor “inextricably intertwined with—or indeed even

closely related to—the qualified immunity issue” because the doctrines “are governed

                                           9
by entirely separate and unrelated analyses” (internal quotation marks omitted));

Norton v. Stille, 526 F. App’x 509, 512-15 (6th Cir. 2013) (unpublished) (affirming

denial of qualified immunity and declining to exercise pendent jurisdiction over Heck

issue because it was “neither inextricably intertwined with, nor necessary to ensure

meaningful review of, the qualified immunity claim” (internal quotation marks

omitted)); accord Scott v. City of Pasadena, 373 F. App’x 759, 759-60 (9th Cir.

2010) (unpublished) (dismissing appeal from the denial of qualified immunity

because the Heck issue was not an appealable collateral order and the court lacked

jurisdiction over a fact issue underlying the denial of summary judgment).2

      Defendants insist the Heck issue is “inextricably intertwined” with their

qualified immunity defense, but this argument invokes our pendent appellate

jurisdiction and tacitly concedes that the Heck ruling is not by itself immediately

appealable. Indeed, we have explained that the discretionary “exercise of our

pendent appellate jurisdiction is only appropriate [1] when the otherwise

nonappealable decision is inextricably intertwined with the appealable decision, or

[2] where review of the nonappealable decision is necessary to ensure meaningful

review of the appealable one[.]” Cox, 800 F.3d at 1256 (brackets in original)

(internal quotation marks omitted). But “[a] pendent claim may be considered

‘inextricably intertwined’ only if it is coterminous with, or subsumed in, the claim

before the court on interlocutory appeal—that is, when the appellate resolution of the


      2
        We may consider non-precedential, unpublished decisions for their persuasive
value. See Fed. R. App. P. 32.1.
                                          10
collateral appeal necessarily resolves the pendent claim as well.” Crowe & Dunlevy,

P.C. v. Stidham, 640 F.3d 1140, 1148 (10th Cir. 2011) (internal quotation marks

omitted).

      Here, the district court’s qualified immunity analysis was not related to its

Heck analysis, and we need not consider the Heck issue to determine whether the

allegations in the first amended complaint state a violation of Mr. Sayed’s clearly

established constitutional rights. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009)

(holding that court of appeals had jurisdiction to consider the sufficiency of a

complaint on interlocutory appeal from the denial of qualified immunity because “the

sufficiency of respondent’s pleadings is both inextricably intertwined with, and

directly implicated by, the qualified-immunity defense” (citations and internal

quotation marks omitted)). The Heck issue is neither coterminous with, nor

subsumed in, the qualified immunity analysis. And nothing about the Heck inquiry is

necessary to resolve qualified immunity based on the facts alleged in the first

amended complaint, which we accept as true.3 Consequently, it would be




      3
        Much of defendants’ opening brief disputes the district court’s Heck ruling
on the premise that “[t]he facts asserted by Sayed could not be true due to his
criminal convictions.” Aplt. Br. at 18. But as we indicated at the outset, this case
was resolved on a motion to dismiss, so “we adopt the facts as stated in the
complaint.” Peterson, 371 F.3d at 1201. To the extent defendants attempt to
challenge those facts, we lack jurisdiction over their appeal. See Weise v. Casper,
507 F.3d 1260, 1264 (10th Cir. 2007) (“[D]enials of qualified immunity based on a
motion to dismiss are only immediately appealable to the extent they turn on issues
of law.”).
                                           11
inappropriate for us to exercise pendent appellate jurisdiction over the Heck issue.

See Cox, 800 F.3d at 1256.

       McAdam v. Warmuskerken does not require a different result. In McAdam, the

Sixth Circuit affirmed the denial of qualified immunity, concluding that three officers

violated the plaintiff’s clearly established rights. 517 F. App’x at 438. The court

then separately analyzed the officers’ Heck argument, stating it was “‘inextricably

intertwined’ with their qualified immunity defense.” Id. (citing Chambers v. Ohio

Dep’t of Human Servs., 145 F.3d 793, 797 (6th Cir. 1998). But without explaining

why the issues were inextricably intertwined, the court went on to hold that Heck did

not bar the excessive force claims. Id.

       McAdam confirms that qualified immunity and Heck are analytically distinct

doctrines. Moreover, the citation to Chambers explains that “pendent appellate

jurisdiction allows an appellate court . . . to exercise jurisdiction over issues that are

not independently appealable when those issues are ‘inextricably intertwined’ with

matters over which the appellate court properly and independently has jurisdiction.”

145 F.3d at 797. Thus, consistent with our conclusion, McAdam recognized that the

Heck issue was not independently appealable and that the court could resolve it only

by exercising pendent jurisdiction. See 517 F. App’x at 438. Although the court

found the Heck issue inextricably intertwined with qualified immunity, the court

provided no explanation for that conclusion. See id. Without any such explanation,

we are unpersuaded by this aspect of McAdam, particularly where the Sixth Circuit

reached a different result in Norton, 526 F. App’x at 515 (concluding that Heck issue

                                            12
was not inextricably intertwined with the qualified immunity defense). Accordingly,

we decline to exercise pendent appellate jurisdiction over the district court’s Heck

ruling and dismiss the appeal to the extent it contests that issue.4

      C. Defendants Are Not Entitled to Qualified Immunity

      The remaining issue is whether the first amended complaint plausibly states a

violation of Mr. Sayed’s clearly established rights. “To qualify as clearly

established, a constitutional right must be sufficiently clear that every reasonable

official would have understood that what he is doing violates that right.” Redmond v.

Crowther, 882 F.3d 927, 935 (10th Cir. 2018) (internal quotation marks omitted). “A

case clearly establishes a right when a Supreme Court or Tenth Circuit decision is on

point, or the clearly established weight of authority from other courts shows that the

right must be as the plaintiff maintains.” Id. (brackets and internal quotation marks

omitted).

      “It is well-settled that prison officials may not retaliate against or harass an

inmate because of the inmate’s exercise of his right of access to the courts.” Gee v.

Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (brackets and internal quotation

marks omitted). Mr. Sayed alleged that defendants engaged in retaliatory conduct

because he filed a grievance against Lt. Virginia. By alleging that defendants beat,


      4
         The Sixth Circuit relied on McAdam in Lucier v. City of Ecorse, stating that a
Heck issue was “inextricably intertwined with the qualified-immunity defense.”
601 F. App’x 372, 376 (6th Cir. 2015) (unpublished) (internal quotation marks
omitted). As in McAdam, however, Lucier offered no explanation for its conclusion,
stating only that “[b]ecause the Heck determination affects this Court’s qualified
immunity analysis, we consider Defendants’ Heck argument first.” Id.
                                            13
threatened, and harassed Mr. Sayed, and then put him in segregation in retaliation for

filing a grievance, Mr. Sayed plausibly alleged that defendants violated his clearly

established right of access to the courts.

      Mr. Sayed also plausibly alleged a violation of his clearly established Eighth

Amendment rights. “An [Eighth Amendment] excessive force claim involves two

prongs: (1) an objective prong that asks if the alleged wrongdoing was objectively

harmful enough to establish a constitutional violation, and (2) a subjective prong

under which the plaintiff must show that the officials acted with a sufficiently

culpable state of mind.” Redmond, 882 F.3d at 936 (brackets and internal quotation

marks omitted). “An official has a culpable state of mind if he uses force maliciously

and sadistically for the very purpose of causing harm, rather than in a good faith

effort to maintain or restore discipline” Id. (internal quotation marks omitted). In

addition, “Tenth Circuit precedent clearly establishe[s] . . . that a law enforcement

official who fails to intervene to prevent another law enforcement official’s use of

excessive force may be liable under § 1983.” Mick v. Brewer, 76 F.3d 1127, 1136

(10th Cir. 1996).

      Mr. Sayed alleged that defendants beat him, broke his finger, and permanently

disabled his right hand, all while Lt. Virginia watched and did nothing to stop it.

Given these allegations, defendants were not entitled to qualified immunity. We

therefore affirm the district court’s denial of the motion to dismiss.




                                             14
                                           III

      The district court’s judgment is affirmed. The appeal is dismissed to the

extent it challenges the district court’s ruling under Heck.

                                                 Entered for the Court


                                                 Gregory A. Phillips
                                                 Circuit Judge




                                           15
