United States District Court, D. Maine
ORDER REJECTING THE RECOMMENDED DECISION OF THE
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
factual premise of the plaintiff's lawsuit under 42
U.S.C. § 1983 conflicts with factual findings during the
plaintiff's sentencing hearing that were essential in
arriving at his sentence, the Court concludes that his
lawsuit is barred under Heck v. Humphrey, 512 U.S.
3, 2016, Jeffrey Paul Barnard, acting pro se, filed a
complaint under 42 U.S.C. § 1983 against a number of
governmental entities and employees alleging that they
harassed, threatened, and shot him in May-June 2014 and
thereby violated his constitutional rights. Compl.
(ECF No. 1). On August 1, 2016, Mr. Barnard moved to amend
his Complaint, Mot. for Leave to Amend (ECF No. 11),
and on August 19, 2016, the Magistrate Judge granted his
motion and ordered it be filed. Mem. of Decision Granting
Mot. to Amend (ECF No. 15). Mr. Barnard filed the
Amended Complaint on August 19, 2016. Am. Compl.
(ECF No. 16). In a decision dated August 19, 2016, the
Magistrate Judge allowed the Amended Complaint to proceed
“against Defendants Bires, Duff and Tokas.”
Second Recommended Decision at 4 (ECF No. 14).
November 27, 2017, Maine State Police Trooper Scott Duff, one
of the Defendants, filed a motion to dismiss Mr.
Barnard's Amended Complaint. Def. Scott Duff's
Mot. to Dismiss (ECF No. 43) (Def.'s Mot.).
On March 15, 2018, the Magistrate Judge issued a recommended
decision in which he recommended that the Court deny Trooper
Duff's motion to dismiss. Recommended Decision on
Mot. to Dismiss (ECF No. 47) (Recommended
Decision). On March 29, 2018, Trooper Duff objected to
the recommended decision. Def. Scott Duff's Obj. to
the Magistrate Judge's Decision Recommending Denial of
his Mot. to Dismiss (ECF No. 49) (Def.'s
Barnard has not participated in this lawsuit since September
18, 2017, when he filed a letter with the Clerk of Court
supplying the addresses of Defendants Duff, Bires and Tokas,
Letter from Jeffrey P. Barnard to Office of the
Clerk (Sept. 14, 2017) (ECF No. 33), and specifically,
he has not responded to Trooper Duff's motion to dismiss,
to the Magistrate Judge's recommended decision, or to
Trooper Duff's objection to the recommended decision.
The Alleged Facts in the Amended Complaint
Amended Complaint, Mr. Barnard alleges that he was
“harassed, threatened with deadly and lethal force, he
was then shot in the Head/Face as a result of this threat by
a Maine State Trooper.” Am. Compl. ¶ 3.
Mr. Barnard's Amended Complaint sets forth the backdrop
for the firing of the shot that struck his head and face.
Id. ¶¶ 11-24. Focusing on the lead up to
the shot, Mr. Barnard recites his recollection of the events
that brought about a police standoff for about twenty hours.
¶ 23. Mr. Barnard alleges that Maine State Trooper Scott
Duff was the individual who fired the shot that struck Mr.
Barnard's head and face. Id. ¶ 24. Mr.
Barnard recalls that during the time before the shooting, law
enforcement “assaulted and attacked” his wife and
him while they “were in the confines of our home,
without showing any provocation toward these officers until
after they shot into our trailer, threw rocks at trailer,
tried breaking window with a robot, and finally used an
armored vehicle to penetrate and push our trailer.”
Barnard states that it was “only after these attacks
did plaintiff retaliate.” Id. Mr. Barnard says
that he “yelled outside his window, several times
during this standoff, that he did not want anyone to be
harmed or hurt.” Id. ¶ 25. Mr. Barnard
alleges several ways he believes this shooting could have
been avoided and ends by stating that he was “shot in
the head unnecessarily and unlawfully with malicious
THE MOTION TO DISMISS
November 27, 2017, claiming that Mr. Barnard's lawsuit
should be dismissed for “multiple reasons, ”
Trooper Duff moved to dismiss Mr. Barnard's Amended
Complaint. Def.'s Mot. at 1. Trooper Duff first
contended that the Court should dismiss Mr. Barnard's
Amended Complaint under the seminal United States Supreme
Court case of Heck v. Humphrey, 512 U.S. 477 (1994),
which bars § 1983 lawsuits premised on the invalidity of
a criminal conviction or sentence. Id. at 8-11.
Next, Trooper Duff argued that the facts established during
the sentencing hearing and alleged in the Amended Complaint
confirm that Trooper Duff is entitled to qualified immunity.
Id. at 11-18. Finally, Trooper Duff maintained that
Mr. Barnard's state tort law claims should be dismissed
because they depend on the viability of his excessive force
claim. Id. at 18-19.
THE RECOMMENDED DECISION
March 15, 2018, the Magistrate Judge issued a recommended
decision in which he recommended that the Court deny Trooper
Duff's motion to dismiss the Amended Complaint.
Recommended Decision at 24. Regarding the Heck
v. Humphrey issue, the Magistrate Judge concluded that
the bar did not apply because “a finding in
Plaintiff's favor on his § 1983 claim does not
necessarily imply the invalidity of his conviction or
sentence.” Id. at 8. The Magistrate Judge
wrote that even though the Court “found that Plaintiff
possessed and raised a rifle when he exited his home, the
length of the sentence was discretionary and the Court cited
several factors when, in establishing the sentence, the Court
determined that Plaintiff's conduct created a substantial
risk to the safety of others.” Id. Thus, the
Magistrate Judge concluded that the Court “conceivably
could have imposed the same sentence without a finding that
Plaintiff raised his rifle when he exited his home.”
Id. Because “a finding in favor of Plaintiff
would not implicate the validity of Plaintiff's sentence,
” the Magistrate Judge concluded that Mr. Barnard's
lawsuit was not barred by Heck v. Humphrey. Id.
to qualified immunity, the Magistrate Judge engaged in a
thorough and thoughtful analysis of the steps essential for a
successful defense of qualified immunity. Id. at 8-
24. Again, because the Magistrate Judge concluded that
“the Guideline sentencing range would likely have been
the same regardless of whether the Court found that Plaintiff
raised his rifle in the direction of law enforcement, and
given the Court's legitimate concern about the risk posed
by Defendant's conduct during the standoff, including
Plaintiff's discharge of a firearm multiple times during
the standoff, the finding that Plaintiff raised his rifle in
the direction of law enforcement before Defendant shot
Plaintiff cannot be deemed essential to the judgment for
purposes of issue preclusion.” Id. at 24.
Accordingly, the Magistrate Judge concluded that Mr. Barnard
is “not collaterally estopped from litigating the issue
in this case.” Id.
TROOPER DUFF'S OBJECTION
March 29, 2018, Trooper Duff objected to the Magistrate
Judge's recommended decision. Def.'s
Objection at 1-18. Trooper Duff contends that the
Magistrate Judge “construe[d] Heck v. Humphrey
too narrowly.” Id. at 2. Trooper Duff says
that “[b]ecause Mr. Barnard could have invalidated his
sentence by showing on direct appeal that the sentencing
court committed clear error in finding that he raised his
rifle toward an officer, his § 1983 action attacking
that same finding is barred by Heck as necessarily
implying the invalidity of his criminal sentence.”
Id. Also, Trooper Duff maintains that the Magistrate
Judge “err[ed], for multiple reasons, in concluding
that the sentencing court's finding was not
‘essential' to the judgment for collateral estoppel
De Novo Review
Court reviews any recommended decision by a magistrate judge
on a dispositive matter under 28 U.S.C. § 636(b)(1)(B),
which requires the Court “make a de novo
determination” of “those portions of the report
or specified proposed findings or recommendations to which
objection is made.” Id.; United States v.
Raddatz, 447 U.S. 667, 673-74 (1980).
Motion to Dismiss
evaluating a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim, a court must
determine “whether, construing the well-pleaded facts
of the complaint in the light most favorable to the
plaintiffs, the complaint states a claim for which relief can
be granted.” Small Justice, LLC v. Xcentric
Ventures LLC, 873 F.3d 313, 321 (1st Cir. 2017) (quoting
Germanowski v. Fortuño-Burset, 854 F.3d 68,
71 (1st Cir. 2017)). The Court need not assume the truth of
conclusory allegations, and the complaint must state at least
a “plausible claim for relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). However,
“non-conclusory factual allegations in the complaint
must . . . be treated as true, even if seemingly
incredible.” Oscasio-Hernández v.
Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
may not “attempt to forecast a plaintiff's
likelihood of success on the merits.” Id. at
13. Furthermore, courts should be “solicitous of the
obstacles that pro se litigants face, and . . . endeavor,
within reasonable limits, to guard against the loss of pro se
claims due to technical defects.” Dutil v.
Murphy, 550 F.3d 154, 158-59 (1st Cir. 2008).
deciding a Rule 12(b)(6) motion, the Court may consider any
documents attached to the complaint as well as any other
documents “integral to or explicitly relied upon in the
complaint, even though not attached to the complaint.”
Trans-Spec Truck Servs. v. Caterpillar, Inc., 524
F.3d 315, 321 (1st Cir. 2008) (quoting Clorox Co. v.
Proctor & Gambel Comm. Co., 228 F.3d 24, 32 (1st
Cir. 2000)). Under Alternative Energy, Inc. v.
St. Paul Fire & Marine Insurance Company, 267 F.3d
30 (1st Cir. 2001), when ruling on a motion to dismiss, a
court may not ordinarily consider documents outside the
complaint, but there is a narrow exception “for
documents the authenticity of which are not disputed by the
parties; for official public records; for documents central
to plaintiffs' claim; or for documents sufficiently
referred to in the complaint.” Id. at 33.
The Criminal Prosecution and Guilty Plea
criminal prosecution against Jeffrey Paul Barnard was begun
with a complaint filed on June 19, 2014, charging him with
being a felon in possession of a firearm on June 1, 2014.
United States v. Barnard, Compl. (ECF No.
1), 1:14-cr-00088-JAW. On July 17, 2014, a federal grand jury
indicted him for being a felon in possession of a firearm and
ammunition on May 31 and June 1, 2014. Indictment
(ECF No. 12).
7, 2016, pursuant to a plea agreement, Mr. Barnard pleaded
guilty to the federal charge. Min. Entry (ECF No.
234). The prosecution version that Mr. Barnard admitted to
truth of at his Federal Rule of Criminal Procedure 11
asserted that he had been convicted of three prior felonies
and on May 31 and June 1, 2018, he possessed a Marlin, Model
795, .22 caliber semi-automatic rifle and fifty-one rounds of
Federal American Eagle .22 caliber ammunition.
Prosecution Version of the Offense (ECF No. 232).
The plea agreement contained no agreements regarding Mr.
Barnard's sentencing and no appeal waivers. Agreement
to Plead Guilty (ECF No. 233).
The Presentence Investigation Report and Guideline
Probation Office prepared a presentence investigation report
and recommended ...