McCann v. Neilsen

• Decision Date: 26 October 2006
• Docket Number: No. 05-3699.,05-3699.
• Citation: 466 F.3d 619
• Parties: Patrick J. McCANN, Plaintiff-Appellant, v. Deputy Ken NEILSEN, in his individual capacity, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

466 F.3d 619

Patrick J. McCANN, Plaintiff-Appellant, v. Deputy Ken NEILSEN, in his individual capacity, Defendant-Appellee.

No. 05-3699.

United States Court of Appeals, Seventh Circuit.

Argued February 6, 2006.

Decided October 26, 2006.

Timothy J. Touhy (argued), Touhy & Touhy, Chicago, IL, for Plaintiff-Appellant.

Elizabeth A. Ekl (argued), Sotos & Associates, Itasca, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and ROVNER and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Patrick McCann brought this civil rights action under 42 U.S.C. § 1983 alleging that McHenry County Sheriff's Deputy Ken Neilsen used excessive force in the course of arresting him. The district court granted Deputy Neilsen's motion for judgment on the pleadings, holding that under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct 2364, 129 L.Ed.2d 383 (1994), certain allegations in the complaint were inconsistent with, and thus an impermissible collateral challenge to, McCann's criminal convictions stemming from the same confrontation. McCann appeals, and for the following reasons we reverse and remand for further proceedings.

I. Background

The record is necessarily limited by virtue of the district court's award of judgment on the pleadings. On November 9, 2001, McCann was being sought by the police in the vicinity of Woodstock, Illinois, for alleged acts of violence against his estranged girlfriend. Around noon that day, Deputy Neilsen of the McHenry County Sheriff's Department encountered McCann walking along some railroad tracks. McCann initially ran from the deputy, then stopped, turned, produced a "spike-type" weapon from his pocket, and began walking directly toward the deputy. When McCann continued to advance despite the Deputy's commands to stop, Deputy Neilsen fired a single shot that struck McCann in the chest.¹

McCann was subsequently convicted by an Illinois jury of aggravated assault on the deputy and obstructing a peace officer in connection with the confrontation incident to the arrest. McCann's conviction for aggravated assault under Illinois law required the jury to find that he engaged in conduct which placed another person in reasonable apprehension of receiving a battery, knowing that the individual assaulted was a peace officer. 720 ILL. COMP. STAT. 5/12-1; 720 ILL. COMP. STAT. 5/12-2(a)(6). The conviction for obstructing a peace officer required the jury to find that McCann "knowingly obstruct[ed] the performance by one known to the person to be a peace officer ... of any authorized act within his official capacity ...." 720 ILL. COMP. STAT. 5/31-1.

McCann then brought this suit pursuant to 42 U.S.C. § 1983, alleging that Deputy Neilsen's act of shooting him and causing serious injury constituted an excessive use of force in violation of the Fourth Amendment. In his complaint, McCann alleged in pertinent part as follows:

5. On November 9, 2001, the plaintiff was lawfully present at the approximate location of Ridgefield Road and Country Club Drive at or about the railroad tracks in Ridgefield, in the Northern District of Illinois.

6. At the time and date aforesaid, the plaintiff did not pose a threat of violence or great bodily harm to the defendant, was not in the commission of a forcible felony nor was he attempting to resist, escape or defeat an arrest otherwise [sic] acting so as to justify the use of deadly force by the defendant.

7. That on the date and time aforesaid, the defendant, without justification, shot the plaintiff causing serious injury.

Deputy Neilsen moved for judgment on the pleadings, pursuant to FED.R.CIV.P. 12(c), and in connection therewith asked the district court to take judicial notice of McCann's aggravated assault and obstruction convictions. The court took notice of the convictions and held that the factual allegations in the complaint were inconsistent with, and thus challenged the validity of, McCann's assault and obstruction convictions, and that this required dismissal pursuant to the Heck rule. Heck holds that a plaintiff may not maintain a § 1983 action where a judgment in his favor would necessarily imply the invalidity of a previous criminal conviction that has not been reversed, expunged, or called into question by the issuance of a federal court writ of habeas corpus. Applying this rule, the district court held as follows:

McCann cannot now allege that he was not `attempting to resist, escape or defeat an arrest' ... because that allegation necessarily calls into question his conviction for obstructing a peace officer. ... McCann cannot now allege that `he did not pose a threat of violence' to Deputy Neilsen because that allegation would necessarily call into question his conviction for assault.

Because McCann's assault and obstruction convictions had not been reversed, expunged, or called into question by a federal writ of habeas corpus, the district court granted judgment on the pleadings in favor of Deputy Neilsen.

II. Discussion

A judgment entered on the pleadings pursuant to FED.R.CIV.P. 12(c) is reviewed de novo. Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir.2004). The rule of Heck v. Humphrey is intended to prevent collateral attack on a criminal conviction through the vehicle of a civil suit. Heck, 512 U.S. at 484, 114 S.Ct. 2364. To this end, Heck bars a plaintiff from maintaining a § 1983 action in situations where "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. ..." Id. at 487, 114 S.Ct. 2364; see also VanGilder v. Baker, 435 F.3d 689, 691 (7th Cir.2006). Conversely, if the civil action, even if successful, "will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed." Heck, 512 U.S. at 487, 114 S.Ct. 2364.

As a general proposition, a plaintiff who has been convicted of resisting arrest or assaulting a police officer during the course of an arrest is not per se Heck-barred from maintaining a § 1983 action for excessive force stemming from the same confrontation. VanGilder, 435 F.3d at 692. A contrary conclusion, we held in VanGilder, would "imply that once a person resists law enforcement, he has invited the police to inflict any reaction or retribution they choose, while forfeiting the right to sue for damages." Id. We disapproved such a result because it "would open the door to undesirable behavior and gut a large share of the protections provided by § 1983." Id. Thus, a civil judgment that Deputy Neilsen used excessive force in effecting McCann's arrest would not necessarily imply the invalidity of McCann's criminal convictions for assault and obstruction.

The district court in the present case did not disagree with this general proposition, noting that McCann could "have avoided Heck by admitting that he was guilty of aggravated assault and obstructing a peace officer, or by simply remaining silent about the facts regarding those convictions." The district court was of the view that even if McCann's constitutional claim was not Heck-barred in the abstract, McCann had voluntarily steered the action into Heck territory by making specific factual allegations in the complaint that were inconsistent with the facts upon which his criminal convictions were based.

This additional gloss on the Heck analysis is supported by our precedents. This court held in Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.2003), that a plaintiff's claim is Heck-barred despite its theoretical compatibility with his underlying conviction if specific factual allegations in the complaint are necessarily inconsistent with the validity of the conviction: "It is irrelevant th...