Gary Goodwin, Jr. v. PHILLIP WEISER, Attorney General of the State of Colorado

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
GARY GOODWIN, JR.,
Plaintiff - Appellant,
v.
PHILLIP WEISER, Attorney General of
the State of Colorado; MICHAEL
ROURKE, Weld County District Attorney,
Defendants - Appellees.
No. 20-1448
(D.C. No. 1:20-CV-02894-LTB-GPG)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
_________________________________
Plaintiff Gary Goodwin Jr. pleaded guilty in state court to a violation of Colo.
Rev. Stat. § 18-18-406 (Offenses relating to marijuana and marijuana concentrate)
(“the marijuana statute”). He later sued under 42 U.S.C. § 1983, challenging his
conviction and sentence claiming the marijuana statute is unconstitutional. Because
he believes the marijuana statute is unconstitutional, he also claimed Defendant
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
FILED
United States Court of Appeals
Tenth Circuit
November 10, 2021
Christopher M. Wolpert
Clerk of Court
Appellate Case: 20-1448 Document: 010110602843 Date Filed: 11/10/2021 Page: 1

-- 1 of 4 --

2
District Attorney Michael Rourke violated his constitutional rights by unlawfully
prosecuting him. The district court dismissed his claim as frivolous, and now he
appeals.
Under 28 U.S.C. § 1915A(b), the district court must review pro se actions and
dismiss the frivolous ones. Frivolous actions lack “an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the district court
referred the case to a magistrate judge who recommended that the district court
dismiss Plaintiff’s § 1983 claim as barred by Heck v. Humphrey, 512 U.S. 477, 487
(1994). The magistrate judge also noted that prosecutorial immunity barred
Plaintiff’s claim against District Attorney Rourke. Plaintiff did not timely object to
the recommendations, so the district court adopted them and dismissed Plaintiff’s
claim as frivolous. 1
We normally review frivolity determinations for an abuse of discretion.
Denton v. Hernandez, 504 U.S. 25, 33 (1992). But when the district court bases its
decision on an issue of law, as it does here, we review de novo. See Conkle v. Potter,
352 F.3d 1333, 1335 n.4 (10th Cir. 2003); Carr v. El Paso Cnty., Colo., 757 F. App’x
651, 654 (10th Cir. 2018) (reviewing de novo the district court’s dismissal for
frivolity under § 1915A(b)). We construe Plaintiff’s pro se pleadings liberally,
1 Plaintiff failed to timely object to the magistrate judge’s report and
recommendation, and he failed to timely respond to this Court’s show cause order on
firm-waiver. But he says prison mail issues caused his delayed responses. For this
case, we assume that Plaintiff could have overcome the firm waiver rule. So, rather
than address that rule further, we affirm the district court on the merits.
Appellate Case: 20-1448 Document: 010110602843 Date Filed: 11/10/2021 Page: 2

-- 2 of 4 --

3
Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013), but we do not construct
arguments for Plaintiff or advocate on his behalf, Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
The Heck doctrine bars § 1983 claims in which a favorable judgment would
necessarily invalidate confinement or its duration. Wilkinson v. Dotson, 544 U.S. 74,
81–82 (2005). But if the criminal “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,” we can consider an otherwise barred claim. Heck, 512 U.S. at 486–
87. Plaintiff’s attack on the constitutionality of the marijuana statute necessarily
attacks the constitutionality of his conviction and thus the validity of the state court
conviction for which he is confined. See id. But Plaintiff offers no evidence of
reversal, expungement, or invalidity, or that a federal court has issued a writ of
habeas corpus. And we find none in the record. So we agree with the district court
that Heck bars Plaintiff’s claim.
Plaintiff also asserts Rourke unlawfully prosecuted him because Rourke “knew
or should have known” the statute was unconstitutional. As a result, if Plaintiff’s
prosecutorial misconduct claim were to succeed, it would require a finding that the
marijuana statute is unconstitutional. So Plaintiff’s prosecutorial misconduct claim
also necessarily attacks the constitutionality and validity of his conviction. Thus,
Heck bars both Plaintiff’s constitutional claim and his prosecutorial misconduct
Appellate Case: 20-1448 Document: 010110602843 Date Filed: 11/10/2021 Page: 3

-- 3 of 4 --

4
claim. 2 For that reason, we conclude both lack any arguable basis in law and are thus
frivolous under § 1915A(b).
AFFIRMED.
Entered for the Court
Joel M. Carson III
Circuit Judge
2 Because we affirm the district court’s Heck determination, we do not address
Rourke’s prosecutorial immunity argument.
Appellate Case: 20-1448 Document: 010110602843 Date Filed: 11/10/2021 Page: 4

-- 4 of 4 --