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Nelson v. Jashurek

March 18, 1997

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)

BEFORE: GREENBERG, LEWIS, and MCKEE, Circuit Judges

GREENBERG, Circuit Judge.

Submitted under Third Circuit LAR 34.1(a)

February 19, 1997

Filed: March 18, 1997

OPINION OF THE COURT

I. BACKGROUND

Carl Nelson appeals from an order for summary judgment entered on September 19, 1996, in this action under 42 U.S.C. Section(s) 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. Section(s) 5104 (West 1983) ("section 5104"). A jury convicted Nelson at a trial on the criminal charge on October 28, 1994, in the Warren County 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 be brought unless the underlying conviction has been reversed or otherwise impaired:

An example of this latter category -- a Section(s) 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 Section(s) 593, p. 307 (14th ed. 1981).) He then brings a Section(s) 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 Section(s) 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 Section(s) 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 ...


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