Tenth Circuit: Heck Not Applicable To Diversions; Notice Required Before Statute Of Limitations Dismissal

by Bob Williams

In December 2009, the Tenth Circuit held that Heck v. Humphrey, 512 U.S. 477 (1994) did not bar § 1983 actions where pre-trial diversion agreements resulted in no underlying conviction that could be invalidated. The Court also held that notice and opportunity to be heard are required before a federal district court may sua sponte dismiss a § 1983 complaint on statute of limitations grounds unless it is clear from the face of the complaint and no meritorious tolling issues exist.

In December 2007, Martin Vasquez Arroyo filed a § 1983 complaint alleging that in July 1998, Kansas police officer Curtis Starks falsely arrested and imprisoned him for driving under the influence and transportation of an open container of alcohol. Then, on August 11, Kinsley City Attorney, Mark Frame, forged Arroyo’s signature on a pre-trial diversion agreement.

In January 2008, Arroyo filed a second complaint alleging similar conduct in July 1998, this time by police officer Tammy Gross for false arrest and imprisonment for disorderly conduct and battery. Again, Frame is alleged to have forged the pre-trial diversion agreement.

The United States District Court for the District of Kansas dismissed both complaints sua sponte, holding that claims against Frame were barred by absolute immunity. The remaining claims were barred by Heck or, in the alternative, by the applicable statute of limitations. Arroyo did not appeal the immunity ruling.

On appeal, the Tenth Circuit noted a disagreement in the circuits on whether Heck should apply at all to similar pre-trial programs, the Court found an actual conviction must exist or Heck is not applicable. Under Kansas pre-trial diversion no such conviction exists so the Court reversed and remanded for further proceedings without further analysis.

Addressing the statute of limitations, and aligned with U.S. Supreme Court precedent, the Court held there is no heightened pleading requirement where a pro se plaintiff has to anticipate an affirmative defense. A court can only dismiss sua sponte on a statute of limitations violation when it is “clear from the face of the complaint [and] rooted in adequately developed facts” that a statute of limitations defense exists. The Court also held that a statute of limitations is subject to tolling and nothing in Arroy’s complaint indicates that he would have no meritorious tolling argument.

See: Arroyo v. Starks, 589 F.3d 1091 (10th Cir. 2009).

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