Agyemang v. No Named Defendants

Filing 11

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 5/8/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00734-LTB
RICHARD AGYEMANG ,
Plaintiff,
v.
CITY OF AURORA MUNICIPAL COURT, et al.,
Defendants.

ORDER DISMISSING CASE

Plaintiff, Richard Agyemang, currently is in the custody of the Arapahoe County
Detention Facility in Centennial, Colorado. Plaintiff initiated this action by filing pro se a
Prisoner Complaint pursuant to 42 U.S.C. § 1983 and a Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915. Plaintiff has been granted leave to proceed
pursuant to § 1915.
A. Mandatory Review Provisions and Standards of Review
In the Prison Litigation Reform Act (PLRA), Pub.L. No. 104–134, 110 Stat. 1321 (1996),
Congress adopted major changes affecting federal actions brought by prisoners in an effort to curb
the increasing number of frivolous and harassing law suits brought by persons in custody. Pertinent
to the case at bar is the authority granted to federal courts for sua sponte screening and dismissal of
prisoner claims.
Specifically, Congress significantly amended Title 28 of the United States Code, section
1915, which establishes the criteria for allowing an action to proceed in forma pauperis (IFP), i.e.,
without prepayment of costs. Section 1915(e) (as amended) requires the federal courts to review

complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any
action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks
monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B).
In addition, Congress enacted a new statutory provision at 28 U.S.C. § 1915A, entitled
“Screening,” which requires the court to review complaints filed by prisoners seeking redress from
a governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
If the complaint is “frivolous, malicious, or fails to state a claim upon which relief can be granted,”
or “seeks monetary relief from a defendant who is immune from such relief,” the court must dismiss
the complaint. 28 U.S.C. § 1915A(b).
Plaintiff is considered a “prisoner” as that term is defined under the PLRA, see 28 U.S.C.
§§ 1915(h); 1915A(c), and he has been granted leave to proceed IFP in this action (ECF No. 8).
Moreover, Defendants are employees of a governmental entity. Thus, his Complaint must be
reviewed under the authority set forth above.
In reviewing complaints under these statutory provisions, a viable complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 554, 556 (2007) (rejecting the traditional standard set forth in Conley v. Gibson, 355 U.S.
41, 45–46 (1957)). The question to be resolved is: whether, taking the factual allegations of the
complaint, which are not contradicted by the exhibits and matters of which judicial notice may be
had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations
of the complaint, are the "factual allegations ... enough to raise a right to relief above the speculative
level, ... on the assumption that all the allegations in the complaint are true even if doubtful in
fact[.]" Bell Atlantic Corp., 550 U.S. at 555. When reviewing a complaint for failure to state a

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claim, the Court may also consider documents attached to the complaint as exhibits. Oxendine v.
Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (internal citation omitted). Moreover, a legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams, 490 U.S. 319,
324 (1989). See also Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (holding that a court may
dismiss a claim as factually frivolous if the facts alleged are clearly baseless, a category
encompassing allegations that are fanciful, fantastic, and delusional).
The Court must construe the Complaint liberally because Plaintiff is a pro se litigant. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). If a complaint reasonably can be read “to state a valid claim on which the plaintiff could
prevail, [a court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity
with pleading requirements.” Hall, 935 F.2d at 1110. However, a court should not act as a pro se
litigant’s advocate. See id. Sua sponte dismissal is proper when it is patently obvious that plaintiff
could not prevail on the facts alleged and it would be futile to allow the plaintiff to amend. Andrews
v. Heaton, 483 F.3d 1070, 1074 (10th Cir. 2007); Curley v. Perry, 246 F.3d 1278, 1281–82 (10th Cir.
2001) (internal quotations omitted).
For the reasons stated below, the Complaint and the action will be dismissed pursuant to the
screening authority set forth above.
B. Liability under 42 U.S.C. § 1983
Plaintiff’s claims concern his arrest and conviction for resisting arrest in the City of Aurora,
Colorado. Resolution of these claims is dictated by the teachings of the United States Supreme

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Court as stated in Preiser v. Rodriguez, 411 U.S. 475, 488–490 (1973), and subsequent cases
interpreting that opinion. In Preiser, the plaintiffs were state prisoners who were deprived of
good-time credits as a result of disciplinary proceedings; they sought injunctive relief restoring their
good-time credits, which would have resulted in their immediate release from confinement. In
making its ruling in Preiser, the Court was called upon to determine the proper relationship between
the Civil Rights Act and the federal habeas corpus statute, 28 U.S.C. § 2254. Despite the admitted
“literal applicability” of § 1983 to the action before it, the Court concluded that “when a state
prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks
is a determination that he is entitled to immediate or speedier release from that imprisonment, his
sole federal remedy is a writ of habeas corpus.” Id., 411 U.S. at 500.
Over two decades later, the Supreme Court again examined the relationship between the
federal civil rights law and habeas corpus actions in Heck v. Humphrey, 512 U.S. 477 (1994). In
Heck, the petitioner was convicted of voluntary manslaughter for killing his wife. While his direct
appeal was pending in the state courts, Heck filed a suit under 42 U.S.C. § 1983 against the
prosecutors in his criminal action and various members of the state police department. The
complaint alleged that the defendants had engaged in an unlawful investigation and had knowingly
destroyed exculpatory evidence. Heck sought compensatory and punitive damages but did not seek
injunctive relief or release from custody. After reviewing its origin and history, the Court
determined that the civil rights law was not meant to provide a means for collaterally challenging
the validity of a conviction through the pursuit of money damages. In so concluding, the Court
announced the following rule.
We hold that, in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness
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would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court's issuance of a writ of habeas corpus, 28
U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983. Thus, when
a state prisoner seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated. But if the district court determines that the plaintiff's action, even if
successful, will not demonstrate the invalidity of any outstanding criminal judgment
against the plaintiff, the action should be allowed to proceed, in the absence of some
other bar to the suit.
Id. at 486–87 (footnotes omitted) (emphasis added). “The purpose behind Heck is to prevent
litigants from using a § 1983 action, with its more lenient pleading rules, to challenge their
conviction or sentence without complying with the more stringent exhaustion requirements for
habeas actions.” Muhammad v. Close, 540 U.S. 749, 751–52 (2004).
Plaintiff contends that the police used excessive force in arresting him by using a taser. He
further complains that his conviction of resisting arrest was based on insufficient evidence, he was
denied his right to confront his accuser and he was arrested without probable cause. In order to
succeed on these claims, this Court necessarily must conclude that Plaintiff's criminal conviction for
resisting arrest is unlawful. To the extent that he still is serving any portion of that sentence and is
seeking immediate release from prison because of Defendants' actions, he is precluded from seeking
such relief through a civil rights complaint because, under Preiser, a federal habeas corpus petition
is his only available avenue for immediate release. To the extent that Plaintiff is seeking monetary
damages for the length of time he has been “unlawfully incarcerated,” he is precluded from seeking
such relief under the Supreme Court's pronouncement in Heck because a judgment in his favor
necessarily would implicate the validity of his resisting arrest conviction. As such, Plaintiff's section
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1983 claim is not cognizable. See Adams v. Dyer, 223 F. App'x 757, 761 (10th Cir. 2007) (holding
that Heck barred excessive force claim because excessive force is an affirmative defense to resisting
arrest; thus, to find in plaintiff’s favor, the district court would have been required to nullify the
jury's rejection of his excessive force defense); Cummings v. City of Akron, 418 F.3d 676, 682–83
(6th Cir. 2005) (Heck barred plaintiff's excessive force claim where he had been convicted of
assaulting a police officer in state court and the events giving rise to both the conviction and the civil
claim were “inextricably intertwined”). Accordingly, it is
ORDERED that the Complaint and this action are DISMISSED pursuant to 28 U.S.C. §
1915(e)(2)(B) and/or 28 U.S.C. § 1915A. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken
in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff files a notice of
appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma
pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance
with Fed. R. App. P. 24.
DATED at Denver, Colorado, this 8th day of

May

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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, 2015.