FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      October 19, 2009
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                     TENTH CIRCUIT


 JAMES A. PEARSON,

                Plaintiff - Appellant,

           v.                                                   No. 09-8058
                                                     (D. Ct. No. 2:09-CV-00084-CAB)
 SCOTT WEISCHEDEL, Wyoming Division                              (D. Wyo.)
 of Criminal Investigation Officer, in his
 official capacity; JACK KILLEY, Wyoming
 Division of Criminal Investigation Officer, in
 his official capacity; STACIA FRANCISCO,
 Casper Police Department Officer, in her
 official capacity; JOSH OSTER, Wyoming
 Department of Corrections Board of Probation
 and Parole Officer, in his official capacity;
 TIM HILL, Wyoming Division of Criminal
 Investigation Officer, in his official capacity,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.


       After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The


       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
case is therefore ordered submitted without oral argument.

       Plaintiff-appellant James A. Pearson, proceeding pro se, appeals the dismissal of

his claims brought pursuant to 42 U.S.C. § 1983. The district court dismissed Mr.

Pearson’s complaint for failure to state a claim upon which relief can be granted under

Fed. R. Civ. P. 12(b)(6). We take jurisdiction under 28 U.S.C. § 1291, and because we

find some of Mr. Pearson’s claims to be cognizable, we AFFIRM in part and REVERSE

in part.

                                   I. BACKGROUND

       Mr. Pearson’s § 1983 claims arise from the execution of a search warrant at his

home in September 2006. Because this case comes to us after being dismissed under Fed.

R. Civ. P. 12(b)(6) and we must take all Mr. Pearson’s factual allegations as true, we will

take the facts as Mr. Pearson states them in his initial complaint.

       Generally, Mr. Pearson’s complaint alleges that in the course of executing the

search warrant at his home, Casper, Wyoming police officers unlawfully forced him to

take narcotic pain medication which compelled him, in an altered state, to reveal the

location of evidence on which his conviction was based. Mr. Pearson claims this conduct

violated his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. Specifically, Mr.

Pearson’s complaint states that during the search of his home, officers initially discovered

two packages containing a combined total of 7.6 grams of methamphetamine. After this

initial discovery, Mr. Pearson claims he complained to the officers that he was

experiencing pain due to a recent surgery. In response to his complaints, Mr. Pearson

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alleges the officers ordered him to take two tablets of oxycontin, a strong narcotic pain

medicine. While Mr. Pearson’s complaint does not allege that he resisted compliance

with the officers’ orders, it does state that two officers had guns drawn toward him at the

time they ordered him to take the oxycontin.

       Mr. Pearson’s complaint further states that prior to taking the oxycontin at the

direction of the officers he: (1) took three other pain medications thirty minutes before the

officers arrived at his home; (2) drank alcohol; and (3) had been using methamphetamine

for the previous forty-eight hours. After taking the oxycontin at the direction of the

officers, Mr. Pearson claims he became nauseated, sweated profusely, and felt that he was

on the brink of a drug overdose. Mr. Pearson’s complaint further alleges that officers

began interrogating him shortly after forcing him to ingest the oxycontin and that he was

so intoxicated he cannot remember with clarity the substance of the interrogation or what

the officers did during the search. Despite his alleged inability to recall the events of the

search with clarity, Mr. Pearson does claim to recall that after he ingested the oxycontin

the officers compelled him to reveal the location of an additional twenty-one grams of

methamphetamine.

       Following the search, Mr. Pearson pleaded guilty to possession of

methamphetamine with intent to distribute in violation of Wyo. Stat. Ann. § 35-7-

1031(a)(i) and was sentenced to eight to twelve years’ imprisonment. Subsequently, Mr.

Pearson filed a § 1983 complaint alleging the above facts and claiming violations of his

Fourth, Fifth, Sixth, and Fourteenth Amendment rights. He seeks $1 million in

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compensatory damages and $1 million in punitive damages. The district court found that

all of Mr. Pearson’s claims were not cognizable under Heck v. Humphrey, 

(1994), and dismissed his complaint for failure to state a claim upon which relief can be

granted. Mr. Pearson now appeals the dismissal of his complaint.

                                    II. DISCUSSION

       On appeal, Mr. Pearson alleges the district court erred in dismissing his complaint

pursuant to Heck. Primarily, Mr. Pearson claims that Heck does not apply to Fourth

Amendment claims raised in a § 1983 complaint. Additionally, he asserts that his Fifth,

Sixth, and Fourteenth Amendment claims are also not barred by Heck. To determine

whether Mr. Pearson’s complaint adequately states a claim, we must first determine what

specific claims Mr. Pearson asserts. Construing Mr. Pearson’s complaint liberally, as we

must, see Haines v. Kerner, 

, 520-21 (1972), we find that he asserts that by

compelling Mr. Pearson to take narcotic pain medicine which altered his state of mind

and caused him to make incriminating statements and reveal twenty-one grams of

methamphetamine in his home, the officers: (1) effectively compelled his confession in

violation of his right to due process under the Fifth and Fourteenth Amendments; (2)

unreasonably executed the search warrant in violation of his Fourth Amendment privilege

to be free from unreasonable searches and seizures; (3) violated his Fifth Amendment

right against self-incrimination; and (4) violated his Sixth Amendment right to counsel.

A.     Standard of Review

       We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de

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novo, applying the same legal standard to the complaint as the district court. Teigen v.

Renfrow, 

, 1078 (10th Cir. 2007). In doing so, we accept all well-pleaded

facts as true and view them in the light most favorable to the non-moving party. 

construe pro se complaints liberally, but we are mindful that it is not the

proper function of a court to “assume the role of advocate for the pro se litigant.” Hall v.

Bellmon, 

, 1110 (10th Cir. 1991). An adequate complaint must include

sufficient facts to state a facially plausible claim for relief. Robbins v. Oklahoma, 

, 1247 (10th Cir. 2008). This requires the complaint to state more than a merely

speculative claim. 

Does not Preclude Mr. Pearson’s Due Process and Fourth Amendment

       Claims

       In Heck v. Humphrey, 

, 485 (1994), the Supreme Court articulated

that civil actions “are not appropriate vehicles for challenging the validity of outstanding

criminal judgements.” Accordingly, the Court held that a claim for damages, which if

decided in the plaintiff’s favor “would necessarily imply the invalidity of his conviction

or sentence,” is not cognizable under § 1983. 

The Court recognized, however,

that “the district court must consider whether a [civil] judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction . . . [and if it would not], the

action should be allowed to proceed in the absence of some other bar to the suit.” 

civil judgment will imply the invalidity of the underlying criminal

conviction because “doctrines like independent source and inevitable discovery, and

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especially harmless error” allow a court to recognize a constitutional violation while

upholding the conviction itself as constitutional. 

n.7 (citations omitted). For

example, a claim for damages that would only invalidate one basis for a conviction is still

cognizable under § 1983 as long as there are other independent grounds supporting the

conviction. See Beck v. City of Muskogee Police Dep’t, 

, 560 (10th Cir.

1999) (allowing a malicious prosecution claim to proceed “[b]ecause the failure of one

basis for revoking probation would not invalidate the revocation as long as there are other

grounds supporting the revocation”).

       Based on Mr. Pearson’s complaint, we cannot say that a favorable finding on his

due process and Fourth Amendment claims would necessarily imply the invalidity of his

conviction. First, although the admissibility of a confession in a criminal case depends on

whether the confession was voluntarily made, the admission of an involuntary confession

or statement is subject to harmless error review. Arizona v. Fulminante, 

,

302-03 (1991). Thus, the conviction may be constitutionally valid if there is sufficient

evidence to support a conviction independent of the involuntary confession. 

when a Fourth Amendment violation occurs during a search, evidence that is not

obtained as a result of that violation is not necessarily suppressed.1 See New York v.

       1
        The appellees seem to contend in their brief that the Fourth Amendment was not
violated in this case because the officers were executing a valid search warrant. The
Fourth Amendment, however, “provides individuals with security in their homes, and a
search warrant, even one properly supported and properly issued, is not a license to
breach that security with impunity.” Lawmaster v. Ward, 

, 1349 (10th Cir.
1997). Therefore, “[a]n officer’s conduct in executing a search is subject to the Fourth
Amendment’s mandate of reasonableness from the moment of the officer’s entry until the

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Harris, 

, 19 (1990).

       Accepting Mr. Pearson’s factual allegations as true, the officers found 7.6 grams of

methamphetamine, scales, and plastic bags prior to the alleged constitutional violations.

Additionally, two witnesses had already stated that Mr. Pearson was selling

methamphetamine. This evidence alone is likely sufficient to support his conviction, and

under Wyoming state law, the length of Mr. Pearson’s conviction did not depend on the

amount of drugs discovered. See Wyo. Stat. Ann. § 35-7-1031 (providing a twenty-year

maximum sentence for possession of methamphetamine with intent to distribute that is

not based on the amount of drugs possessed). Because the evidence discovered

independent of the alleged due process and Fourth Amendment violations would be

sufficient to sustain Mr. Pearson’s conviction, success on these claims in his § 1983 suit

would not necessarily invalidate that conviction. We therefore hold that Heck does not

bar Mr. Pearson’s due process or Fourth Amendment claims.2

C.     Mr. Pearson’s Self-Incrimination and Right to Counsel Arguments Fail to State a

       Claim

       1.      Self-Incrimination


moment of departure.” 

that “an officer is limited to conduct that is
reasonably necessary to effectuate the warrant’s purpose.” 

the
existence of a valid warrant, the officers’ conduct violated the Fourth Amendment if it
was unreasonable.
       2
       Importantly, we do not recognize a blanket Fourth Amendment exception to Heck
as Mr. Pearson urges us to do; however, we do find that success on Mr. Pearson’s Fourth
Amendment claims in this § 1983 action would not necessarily invalidate his criminal
conviction and are not barred by Heck.

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       The Fifth Amendment, made applicable to the States by the Fourteenth

Amendment, provides that “[n]o person . . . shall be compelled in any criminal case to be

a witness against himself.” U.S. Const. amend. V. “Although conduct by law

enforcement officials prior to trial may ultimately impair [the privilege against self-

incrimination], a constitutional violation occurs only at trial.” United States v. Verdugo-

Urquidez, 

, 264 (1990). Furthermore, “[b]y entering a guilty plea a

defendant waives constitutional rights that inhere in a criminal trial including . . . the

protection against self-incrimination.” Florida v. Nixon, 

, 187 (2004).

       Mr. Pearson pleaded guilty and never went to trial; therefore, while the officers’

alleged conduct may have impaired his self-incrimination rights, a constitutional violation

never occurred. Furthermore, by entering a guilty plea, Mr. Pearson waived the privilege

against self-incrimination that applies in a criminal trial. Although the district court

found that Heck barred Mr. Pearson’s self-incrimination claim, we are free to affirm a

district court on any basis of law adequately supported in the record. Smith v. Plati, 

, 1174 (10th Cir. 2001). Accordingly, we find that Mr. Pearson has failed to

plead sufficient facts to state a plausible violation of his privilege against self-

incrimination, and the district court properly dismissed this claim.

       2.     Right to Counsel

       The Sixth Amendment right to assistance of counsel “does not attach until a

prosecution is commenced.” Rothgery v. Gillespie Co., Tex., 

, 2583

(2008). A prosecution does not commence until “‘the initiation of adversary judicial

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criminal proceedings—whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.’” 

States v. Gouveia, 

, 188 (1984)). Mr. Pearson’s complaint does not state that a prosecution had

commenced at the time the officers allegedly violated his Sixth Amendment right to

counsel. Therefore, the district court properly dismissed this claim.

D.     Mr. Pearson’s Complaint Alleges a Compensable Injury Under § 1983

       The government argues that notwithstanding the possible cognizability of Mr.

Pearson’s claims under Heck, Mr. Pearson’s complaint was properly dismissed because

the only injury that can be inferred from it is that the alleged unconstitutional acts of the

officers led to his conviction and confinement. Indeed, the “injury” of being convicted

and imprisoned is not compensable under § 1983. 

n.7. Mr.

Pearson’s complaint, however, alleges that after the officers forced him to take the

oxycontin in violation of his constitutional rights he became nauseated, sweated

profusely, and felt that he was on the brink of an overdose. Such physical injuries are

distinct from the “injury” of being convicted and imprisoned and are compensable under

§ 1983. Therefore, we cannot affirm the dismissal of Mr. Pearson’s complaint on these

grounds.

                                    III. CONCLUSION

       Success on Mr. Pearson’s due process and unreasonable search claims would not

necessarily invalidate his conviction; therefore, those claims are not barred by Heck. Mr.

Pearson’s complaint, however, fails to state plausible violations of his privilege against

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self-incrimination and his Sixth Amendment right to counsel. Accordingly, we

REVERSE the district court’s dismissal of Mr. Pearson’s due process and unreasonable

search claims and AFFIRM the district court’s dismissal of his other claims.

Additionally, we DENY Mr. Pearson’s motion to supplement the record because the

supplemental exhibits were not considered by the district court in making its ruling.

Finally, we GRANT Mr. Pearson’s motion to pay the fee for this appeal in partial

payments, but remind him that he is obligated to continue making payments until the

entire fee is paid.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




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