In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3699

PATRICK J. MCCANN,

Plaintiff-Appellant,

v.

Deputy KEN NEILSEN,

in his individual capacity,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 7955—James F. Holderman, Chief Judge.

____________

ARGUED FEBRUARY 6, 2006—DECIDED OCTOBER 26, 2006

____________

Before FLAUM, Chief Judge, and ROVNER and SYKES,

Circuit Judges.

SYKES, Circuit Judge. Patrick McCann brought this

civil rights action under 42 U.S.C. § 1983 alleging that

McHenry County Sheriff’s Deputy Ken Neilsen used

excessive force in the course of arresting him. The district

court granted Deputy Neilsen’s motion for judgment on

the pleadings, holding that under Heck v. Humphrey, 512

U.S. 477 (1994), certain allegations in the complaint

were inconsistent with, and thus an impermissible collateral challenge to, McCann’s criminal convictions stemming from the same confrontation. McCann appeals, and for

the following reasons we reverse and remand for further

proceedings.
2 No. 05-3699

1 These facts, not contained in McCann’s complaint, are included

in the facts of which the district court took judicial notice from the

content of court files of the proceedings against McCann in Illinois

state court stemming from the confrontation.

I. Background

The record is necessarily limited by virtue of the district

court’s award of judgment on the pleadings. On November

9, 2001, McCann was being sought by the police in the

vicinity of Woodstock, Illinois, for alleged acts of violence

against his estranged girlfriend. Around noon that day,

Deputy Neilsen of the McHenry County Sheriff’s Department encountered McCann walking along some railroad

tracks. McCann initially ran from the deputy, then stopped,

turned, produced a “spike-type” weapon from his pocket,

and began walking directly toward the deputy. When

McCann continued to advance despite the Deputy’s commands to stop, Deputy Neilsen fired a single shot

that struck McCann in the chest.1

McCann was subsequently convicted by an Illinois jury of

aggravated assault on the deputy and obstructing a peace

officer in connection with the confrontation incident to the

arrest. McCann’s conviction for aggravated assault under

Illinois law required the jury to find that he engaged in

conduct which placed another person in reasonable apprehension of receiving a battery, knowing that the individual

assaulted was a peace officer. 720 ILL. COMP. STAT. 5/12-1;

720 ILL. COMP. STAT. 5/12-2(a)(6). The conviction for

obstructing a peace officer required the jury to find that

McCann “knowingly obstruct[ed] the performance by one

known to the person to be a peace officer . . . of any authorized act within his official capacity . . . .” 720 ILL. COMP.

STAT. 5/31-1.

McCann then brought this suit pursuant to 42 U.S.C.

§ 1983, alleging that Deputy Neilsen’s act of shooting
No. 05-3699 3

him and causing serious injury constituted an excessive use

of force in violation of the Fourth Amendment. In his

complaint, McCann alleged in pertinent part as follows:

5. On November 9, 2001, the plaintiff was lawfully

present at the approximate location of Ridgefield Road

and Country Club Drive at or about the railroad tracks

in Ridgefield, in the Northern District of Illinois.

6. At the time and date aforesaid, the plaintiff did not

pose a threat of violence or great bodily harm to the

defendant, was not in the commission of a forcible

felony nor was he attempting to resist, escape or defeat an arrest otherwise [sic] acting so as to justify the

use of deadly force by the defendant.

7. That on the date and time aforesaid, the defendant,

without justification, shot the plaintiff causing serious

injury.

Deputy Neilsen moved for judgment on the pleadings,

pursuant to FED. R. CIV. P. 12(c), and in connection therewith asked the district court to take judicial notice

of McCann’s aggravated assault and obstruction convictions. The court took notice of the convictions and held that

the factual allegations in the complaint were inconsistent

with, and thus challenged the validity of, McCann’s assault

and obstruction convictions, and that this required dismissal pursuant to the Heck rule. Heck holds that a plaintiff

may not maintain a § 1983 action where a judgment in his

favor would necessarily imply the invalidity of a previous

criminal conviction that has not been reversed, expunged,

or called into question by the issuance of a federal court

writ of habeas corpus. Applying this rule, the district court

held as follows:

McCann cannot now allege that he was not ‘attempting

to resist, escape or defeat an arrest’ . . . because that

allegation necessarily calls into question his conviction for obstructing a peace officer. . . . McCann cannot
4 No. 05-3699

now allege that ‘he did not pose a threat of violence’ to

Deputy Neilsen because that allegation would necessarily call into question his conviction for assault.

Because McCann’s assault and obstruction convictions

had not been reversed, expunged, or called into question

by a federal writ of habeas corpus, the district court granted

judgment on the pleadings in favor of Deputy Neilsen.

II. Discussion

A judgment entered on the pleadings pursuant to FED.

R. CIV. P. 12(c) is reviewed de novo. Guise v. BWM Mortgage, LLC, 377 F.3d 795, 798 (7th Cir. 2004). The rule of

Heck v. Humphrey is intended to prevent collateral

attack on a criminal conviction through the vehicle of a civil

suit. Heck, 512 U.S. at 484. To this end, Heck bars a

plaintiff from maintaining a § 1983 action in situations

where “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence . . . .” Id. at 487; see also VanGilder v. Baker, 435 F.3d

689, 691 (7th Cir. 2006). Conversely, if the civil action, even

if successful, “will not demonstrate the invalidity of any

outstanding criminal judgment against the plaintiff, the

action should be allowed to proceed.” Heck, 512 U.S. at 487.

As a general proposition, a plaintiff who has been convicted of resisting arrest or assaulting a police officer during

the course of an arrest is not per se Heck-barred from

maintaining a § 1983 action for excessive force stemming

from the same confrontation. VanGilder, 435 F.3d at 692. A

contrary conclusion, we held in VanGilder, would “imply

that once a person resists law enforcement, he has invited

the police to inflict any reaction or retribution they choose,

while forfeiting the right to sue for damages.” Id. We

disapproved such a result because it “would open the door

to undesirable behavior and gut a large share of the
No. 05-3699 5

protections provided by § 1983.” Id. Thus, a civil judgment

that Deputy Neilsen used excessive force in effecting

McCann’s arrest would not necessarily imply the invalidity

of McCann’s criminal convictions for assault and obstruction.

The district court in the present case did not disagree

with this general proposition, noting that McCann could

“have avoided Heck by admitting that he was guilty of

aggravated assault and obstructing a peace officer, or by

simply remaining silent about the facts regarding those

convictions.” The district court was of the view that even if

McCann’s constitutional claim was not Heck-barred in the

abstract, McCann had voluntarily steered the action into

Heck territory by making specific factual allegations in the

complaint that were inconsistent with the facts upon which

his criminal convictions were based.

This additional gloss on the Heck analysis is supported by

our precedents. This court held in Okoro v. Callaghan,

324 F.3d 488, 490 (7th Cir. 2003), that a plaintiff’s claim is

Heck-barred despite its theoretical compatibility with his

underlying conviction if specific factual allegations in the

complaint are necessarily inconsistent with the validity of

the conviction: “It is irrelevant that [the plaintiff] disclaims

any intention of challenging his conviction; if he makes

allegations that are inconsistent with the conviction’s

having been valid, Heck kicks in and bars his civil suit.”

Okoro was convicted of dealing heroin following a search

that recovered heroin in his home; his defense had been

that he was not selling drugs but gems and the officers stole

the gems during the search. His subsequent § 1983 suit was

Heck-barred because his specific allegations—that the

defendant officers violated his civil rights by illegally

seizing his gems—were inconsistent with the validity of his

heroin conviction.

VanGilder, an excessive force § 1983 claim evaluated

against the backdrop of a conviction for resisting an officer,

contains a similar analysis but a different result:
6 No. 05-3699

VanGilder does not collaterally attack his conviction,

deny that he resisted [the officer’s] order to comply with

the blood draw, or challenge the factual basis presented

at his change of plea hearing. Rather, VanGilder claims

that he suffered unnecessary injuries because [the

officer’s] response to his resistance . . . was not, under

the law governing excessive use of force, objectively

reasonable.

VanGilder, 435 F.3d at 692 (emphasis added). Thus,

VanGilder, unlike Okoro, had not pleaded facts inconsistent

with his underlying criminal conviction, and his § 1983

claim, not otherwise incompatible with those convictions,

was permitted to proceed.

The question for us, then, is not whether McCann could

have drafted a complaint that steers clear of Heck (he could

have), but whether he did. In other words, does the complaint contain factual allegations that “necessarily imply”

the invalidity of his convictions. Heck, 512 U.S. at 487. On

this question, we find it dispositive that the district court

took an ambiguously worded paragraph in the complaint—one that could be read to avoid the Heck bar—and

construed it in a manner that favored the defendant.

In deciding a Rule 12(c) motion, we accept the facts

alleged in the complaint in the light most favorable to the

plaintiff. Guise, 377 F.3d at 798. Giving McCann the benefit

of all reasonable inferences, we conclude that his complaint

can reasonably be read in a manner that does not implicate

Heck. To repeat, the operative paragraph of the complaint

states as follows:

At the time and date aforesaid, the plaintiff did not

pose a threat of violence or great bodily harm to the

defendant, was not in the commission of a forcible

felony nor was he attempting to resist, escape or defeat an arrest otherwise [sic] acting so as to justify
No. 05-3699 7

the use of deadly force by the defendant. (Emphasis

added.)

The district court read this paragraph to constitute a

categorical denial by McCann that he ever posed a threat of

violence to the deputy, or ever attempted to resist or defeat

arrest. Given the convoluted syntax employed, this reading

is not completely unreasonable, and, so read, this paragraph renders McCann’s allegations arguably inconsistent

with his assault and obstruction convictions.

But there is an equally plausible construction that avoids

inconsistency with McCann’s assault and obstruction

convictions. That is, by reference to the concluding and

qualifying clause emphasized above, the paragraph can be

read as alleging that McCann never posed a threat of

violence, attempted escape, or resisted arrest to a degree

that would have justified the use of deadly force as a

response. Read in this way, McCann is not denying his

assaultive and obstructive conduct, but is alleging

that regardless of what he may have done, the deputy’s

use of deadly force as a response was not reasonable. Given

our obligation at this stage of the proceedings to construe

the complaint in the light most favorable to the nonmoving

party, we give the complaint this construction and hold that

McCann’s claim is not barred by Heck. On remand, McCann

should be given an opportunity to file an amended complaint that clarifies and implements this reading of his

allegations.

The judgment of the district court is REVERSED, and this

case is REMANDED for further proceedings.
8 No. 05-3699

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-26-06