Bush v. Strain, 05-30837.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation513 F.3d 492
Docket NumberNo. 05-30837.,05-30837.
PartiesHolly BUSH, Plaintiff-Appellant, v. Rodney Jack STRAIN, Jr., in his official capacity as Sheriff of St. Tammany Parish; Dale Galloway, Detective, individually and in his official capacity as a St. Tammany Parish Sheriff Deputy; Ronald Plaisance, Deputy, individually and in his official capacity as a St. Tammany Parish Sheriff Deputy, Defendants-Appellees.
Decision Date14 January 2008
513 F.3d 492
Holly BUSH, Plaintiff-Appellant,
v.
Rodney Jack STRAIN, Jr., in his official capacity as Sheriff of St. Tammany Parish; Dale Galloway, Detective, individually and in his official capacity as a St. Tammany Parish Sheriff Deputy; Ronald Plaisance, Deputy, individually and in his official capacity as a St. Tammany Parish Sheriff Deputy, Defendants-Appellees.
No. 05-30837.
United States Court of Appeals, Fifth Circuit.
January 14, 2008.

[513 F.3d 495]

Gary William Bizal (argued), Pierce & Bizal, New Orleans, LA, for Plaintiff-Appellant.

Robert Bradley Lewis (argued), Charles Marion Hughes, Jr., Talley, Anthony, Hughes & Knight, Mandeville, LA, for Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.

OWEN, Circuit Judge:


Holly Bush appeals an adverse summary judgment on her excessive force1 and conspiracy claims against law enforcement officers, Dale Galloway and Ronald Plaisance, and a related respondent superior claim against Sheriff Rodney Jack Strain, Jr. The district court determined that Bush's claims were barred under Heck v. Humphrey2 based on her conviction for resisting arrest arising from the same event upon which her civil claims are based. The judgment is affirmed in part and reversed and remanded in part.

I

Bush seeks damages for injuries she sustained after she was arrested for simple battery and resisting arrest following a disturbance at a Mandeville, Louisiana car wash. Bush contends that the arresting officer, Detective Dale Galloway, injured her by intentionally and unreasonably pushing her head into the rear window of an automobile after she was arrested, handcuffed, and compliant. The officer contends that Bush was unintentionally injured when he tried to subdue her as she resisted arrest. Bush was subsequently

513 F.3d 496

convicted of resisting arrest, and the issue we must decide in this case is whether Bush could prevail on her civil claims without impugning the validity of her criminal conviction. If she cannot, her civil claims are barred.3

There is little dispute about what occurred in this case up to the point of Bush's arrest. By all accounts, Detective Galloway was interviewing a witness when Bush walked up and greeted him. Bush overheard the witness make a comment about Bush's sister, became enraged, and threw a cup of ice water at the witness. Galloway then attempted to arrest Bush for simple battery, and when Bush was partially handcuffed, she pulled her right arm away in an apparent attempt to hit or intimidate the witness. It is at this point that the parties' versions of events diverge concerning the duration of Bush's resistance and the cause of her injuries.

Galloway testified both in his civil deposition and at Bush's resisting arrest trial that Bush continued resisting arrest while he attempted to cuff her right hand and, through Bush's attempts to get free, they both fell onto the rear window of a nearby vehicle. Galloway's testimony is corroborated in this lawsuit by his co-defendant, Detective Ronald Plaisance, who testified in his civil deposition that he arrived at the scene during the incident and witnessed Bush pull away from Galloway and collide with the vehicle while Galloway was attempting to restrain her, Both detectives assert that Plaisance had to help Galloway restrain Bush and cuff her right hand. Plaisance did not testify in the criminal proceeding.

Although Bush initially claimed that she never resisted arrest, she admitted in her deposition that she pulled away from Galloway when he attempted to arrest her. She contends, however, that she stopped resisting after Galloway grabbed her right hand and that, after she ceased her resistance and both hands were cuffed, Galloway placed his hand behind her neck and head and forced her face into the rear window of a nearby vehicle, injuring her jaw and breaking two of her teeth. Bush states that Plaisance did not assist Galloway with the arrest, but witnessed this event and helped Galloway fabricate a story to cover up the use of excessive force. Bush's version of events is corroborated by affidavits from two witnesses, Lindsay Burga and Amy Huber. Burga also testified at Bush's criminal trial.

Bush sued Galloway and Plaisance under 42 U.S.C. § 1983 for excessive force, illegal arrest, and conspiracy. She also sued Galloway and Plaisance's employer, Sheriff Strain, based on respondeat superior liability under Louisiana law. The parties consented to proceed before a magistrate judge, and the civil case proceeded contemporaneously with a state criminal case against Bush for simple battery and resisting arrest. Bush was ultimately convicted of resisting arrest and acquitted on the battery charge.

Following Bush's resisting arrest conviction, the defendants moved for summary judgment, principally arguing that Bush's claims are barred under Heck v. Humphrey because a favorable outcome on that claim would render her resisting arrest conviction invalid. Alternatively, they argued that they were entitled to qualified immunity on the excessive force claim. The defendants did not separately challenge Strain's respondeat superior liability or the conspiracy claim. In response, Bush abandoned her illegal arrest claim based on the outcome of the criminal proceeding, but she asserted that there were unresolved fact issues bearing on both the Heck and qualified immunity issues. The magistrate judge determined that Heck

513 F.3d 497

barred all of Bush's claims, and therefore, did not reach the defendant's qualified immunity claim.

On appeal, Bush's legal position is basically unchanged, but she conceded at oral argument that there is no viable excessive force claim against Plaisance. The defendants continue to assert that Heck bars Bush's claims and that they are entitled to qualified immunity as a matter of law.

II

We review a summary judgment de novo, viewing the evidence in the light most favorable to the non-movant,4 which in this case is Bush. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.5

It is well settled under Heck that a plaintiff who has been convicted of a crime cannot recover damages for an alleged violation of his constitutional rights if that "violation arose from the same facts attendant to the charge for which he was convicted, unless he proves `that his conviction or 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.'"6 Although the Heck principle applies to § 1983 excessive force claims, the determination of whether such claims are barred is analytical and fact-intensive, requiring us to focus on whether success on the excessive force claim requires negation of an element of the criminal offense or proof of a fact that is inherently inconsistent with one underlying the criminal conviction.7

We applied this analytical construct in Ballard v. Burton, in which we held that a plaintiff's excessive force claim was conceptually distinct from his simple assault conviction and "could easily coexist with [the plaintiff's] conviction for simple assault ... without calling into question any aspect of that conviction."8 The plaintiff in Ballard was shot by Deputy Burton during a confrontation with law enforcement officers. The plaintiff subsequently pleaded guilty to a simple assault charge against a different officer, Deputy Boling, admitting only that he put Boling in fear and that he fired his rifle several times while near law enforcement officers.9 The plaintiff then sued Burton for using excessive force, but his claim was dismissed on summary judgment based on Heck. On appeal, this court concluded that Heck did not bar the excessive force claim because the plaintiffs civil claim was both conceptually and factually distinct from his criminal conviction.10 Critical to the court's decision was that the plaintiff's behavior satisfied the elements for simple assault against Boling, as charged in the indictment to which he pleaded guilty, both before and after Burton arrived at the scene. As a result, "[a] finding that Burton's use of force was unreasonable would imply neither that [the plaintiff] did not attempt by physical menace to put Boling in fear of imminent bodily harm, nor that [his] assault on Boling was in necessary self defense."11

513 F.3d 498

Therefore, it was possible both that Burton's shooting of the plaintiff was objectively unreasonable, and thus excessive, and that the plaintiff had assaulted Boling.12

As Ballard illustrates, a § 1983 claim would not necessarily imply the invalidity of a resisting arrest conviction, and therefore would not be barred by Heck, if the factual basis for the conviction is temporally and conceptually distinct from the excessive force claim. Accordingly, a claim that excessive force occurred after the arrestee has ceased his or her resistance would not necessarily imply the invalidity of a conviction for the earlier resistance.13 In this case, there is conflicting evidence about whether Bush was injured before or after her resistance ceased, and the crux of the dispute is whether the factual basis for Bush's excessive force claim is inherently at odds with the facts actually or necessarily adjudicated adversely to Bush in the criminal proceeding.14

Bush was convicted of resisting arrest under LA REV.STAT. § 14:108. The defendants do not assert that an excessive force claim could never be maintained consistently with a conviction under this statute because of the elements of the crime or the existence of any defense to the crime.15 Rather, the defendants argue, and the magistrate judge found, that the judge in the criminal proceeding explicitly or...

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