McFadden v. Midwest City City of

Filing 18

ORDER granting 16 defendant City of Midwest City's motion to dismiss...this case is dismissed without prejudice to refiling if the necessary preconditions are met...see order for specifics. Signed by Honorable Joe Heaton on 02/27/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KELLEY McFADDEN,
Plaintiff,
vs.
CITY OF MIDWEST CITY,
Defendant.

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NO. CIV-12-1419-HE

ORDER
Plaintiff Kelley McFadden filed this 42 U.S.C. § 1983 action against the City of
Midwest City (“the City”), alleging violations of her Sixth Amendment right to counsel.
Plaintiff filed her initial complaint pro se. The City moved to dismiss the complaint, to
which plaintiff did not respond. Instead, she requested leave to file an amended complaint,
which the court granted. See [Doc. #9]. The City again moved to dismiss, and plaintiff again
sought leave to amend her complaint, this time based on the fact that she had obtained
counsel. The court again granted plaintiff’s motion. [Doc. #14]. Plaintiff has now filed her
second amended complaint. The City has moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(6). Plaintiff has responded and the motion is at issue.
Discussion
The second amended complaint alleges that, sometime in 2010, plaintiff was
convicted of unspecified “larceny-related” offenses in Midwest City Municipal Court and
was sentenced to 250 days in jail. She alleges that she was indigent at the time of her court
proceeding and was denied assistance of counsel at public expense. She also alleges she was
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not advised of her right to appeal. Plaintiff was released from jail in late December 2010,
apparently having served out her sentence. She contends that the City has a policy of not
providing indigent defendants or inmates with legal representation, in violation of the Sixth
Amendment.1 She filed this § 1983 action seeking monetary damages for the alleged
constitutional violations, and other related relief.
The City has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6).
That rule permits a court to dismiss a claim when a party fails “to state a claim upon which
relief can be granted.” When considering a Rule 12(b)(6) motion, all well-pleaded factual
allegations in the complaint are accepted as true and construed in the light most favorable to
the nonmoving party.

Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010).

Unsupported, conclusory allegations, however, need not be accepted as true. See Kansas
Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011). Further, “mere ‘labels
and conclusions’ and ‘a formulaic recitation of the elements of a cause of action’ will not
suffice.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The question is whether the
complaint contains “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
The City’s motion is based entirely on its assertion that plaintiff’s claim must be
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“[T]he Sixth Amendment's guarantee of the right to appointed counsel applies to state
criminal prosecutions through the Fourteenth Amendment . . . [A]n indigent defendant must be
appointed counsel in any criminal prosecution, regardless of its classification as a misdemeanor
or a felony, ‘that actually leads to imprisonment even for a brief period . . . .’” United States v.
Cousins, 455 F.3d 1116, 1125-26 (10th Cir. 2006) (quoting Argersinger v. Hamlin, 407 U.S. 25,
33, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)).
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dismissed under Heck v. Humphrey, 512 U.S. 477, 486 (1994), because plaintiff does not
allege that her conviction has been invalidated. Plaintiff argues that Heck does not apply
because habeas relief is not available to her, as she is no longer in custody.
In Heck, the Supreme Court addressed the issue of when a prisoner may assert a §
1983 claim relating to her conviction or sentence. The Court held that “in order to recover
damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused
by actions whose unlawfulness 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.” Heck, 512 U.S. at 486-87. The rule applies to any claim in which “a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or
sentence.” Id. at 487.
Plaintiff’s current status as a non-prisoner does not appear to render Heck inapplicable
in the circumstances of this case. Some courts, in applying Heck, have concluded that it does
not bar a suit by a person whose incarceration has ended, as a habeas remedy is ordinarily
unavailable in that circumstance.2 The Tenth Circuit is among those courts, at least where
the availability of a habeas remedy is determinative. Cohen v. Longshore, 621 F.3d 1311,
1315 (10th Cir. 2010). In Cohen, after acknowledging a circuit split on the issue, the Court

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The U.S. Supreme Court has not definitively resolved the issue. See Muhammad v.
Close, 540 U.S. 749, 752, n. 2 (2004).
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determined “that a petitioner who has no available remedy in habeas, through no lack of
diligence on his part, is not barred by Heck from pursuing a § 1983 claim.” Id. at 1317. It
followed the reasoning of the plurality opinion in Spencer v. Kemna, 523 U.S. 1 (1998),
which concluded a former prisoner no longer in custody could bring a § 1983 action, without
being bound to satisfy the “favorable termination” requirement of Heck, because it was a
requirement that “would be impossible as a matter of law for him to satisfy.” 523 U.S., at 21.
However, neither Spencer nor Cohen appear to have involved the circumstances
present here—where an available means exists under state law for challenging the conviction
involved, regardless of the availability of a federal habeas remedy or of plaintiff’s custodial
status. She has an available state remedy through the Oklahoma Uniform Post-Conviction
Procedure Act, 22 Okla. Stat. § 1080.3 The Spencer concurrence’s concern with the
impossibility of satisfying the favorable termination requirement is thus not present here.
Further, recognizing the impact of the available state procedure seems consistent with the
underlying purpose served by the Heck rule, of preserving limitations on the availability of
habeas remedies, i.e. exhaustion of state remedies. See Muhammad v. Close, 540 U.S. 749,
751 (2004). Moreover, as noted above, Heck stated the “favorable termination” requirement
as involving either the prior conviction being called into question in a habeas proceeding
“or,” among other things, “declared invalid by a state tribunal authorized to make such
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“Any person who has been convicted of, or sentenced for, a crime and who claims:
(a) that the conviction or the sentence was in violation of the Constitution of the United States or
the Constitution or laws of this state . . . may institute a proceeding under this act in the court in
which the judgment and sentence on conviction was imposed to secure the appropriate relief.
Excluding a timely appeal, this act encompasses and replaces all common law and statutory
methods of challenging a conviction or sentence.” 22 Okla. Stat. § 1080.
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determination . . . .” 512 U.S. at 487.
Whether a plaintiff is barred by Heck where she has no available habeas remedy but
has other relief potentially available in state court has not been squarely addressed by the
Tenth Circuit. See Taylor v. City of Bixby, 2012 WL 6115051, *6 (N.D. Okla. Dec. 10,
2012). The Taylor court did consider the issue and adopted the Eleventh Circuit’s reasoning
that Heck applies even where habeas is unavailable, if there is another route for a plaintiff
to seek relief from his conviction. Id. (citing Domotor v. Wennett, 356 F. App’x 316 (11th
Cir. 2009), aff'g 630 F. Supp. 2d 1368, 1380 (S.D. Fla. 2009)). This court reached the same
conclusion in a recent case involving the same defendant. See Dutton v. City of Midwest
City, CIV-13-0911-HE, 2014 WL 348982 (W.D. Okla. Jan. 31, 2014).
For the above-stated reasons, the court concludes that Heck applies in the
circumstances present here. That conclusion leaves plaintiff with a potentially available
remedy for her claimed constitutional violations and affords the state an opportunity to cure
any such violations, consistent with Heck’s purpose.
Because Heck applies, it is necessary to evaluate whether plaintiff’s particular claims
would “necessarily imply the invalidity of [the] conviction or sentence.” Here, a ruling that
plaintiff was denied counsel in violation of her Sixth Amendment right would necessarily
invalidate her conviction. Her claim must therefore be dismissed, without prejudice.4
For the reasons stated, the City of Midwest City’s motion to dismiss [Doc. #16] is

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“[C]laims dismissed on Heck v. Humphrey grounds should be dismissed without
prejudice.” Bryner v. Utah, 429 F. App’x 739, 744–45 (10th Cir.2011).
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GRANTED. This case is DISMISSED without prejudice to re-filing if the necessary
preconditions are met.
IT IS SO ORDERED.
Dated this 27th day of February, 2014.

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