     Case: 12-30399      Document: 00512465902         Page: 1    Date Filed: 12/10/2013




                        REVISED December 10, 2013

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                           December 6, 2013
                                      No. 12-30399                            Lyle W. Cayce
                                                                                   Clerk

MARK HANNA,

                                                 Plaintiff-Appellant,
v.

DELMER MAXWELL, JANE WOMACK, TIM WILKINSON, TODD
THOMAS, MONA HYSE, LIONEL TELSEE, RICHARD STALDER, LINDA
RAMSEY,

                                                 Defendants-Appellees.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC. No. 1:09-CV-1230


Before DAVIS, GARZA, and DENNIS, Circuit Judges.
PER CURIAM: *




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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      Plaintiff Mark Hanna appeals from the dismissal of his retaliation claim
under 42 U.S.C. § 1983 as time barred under the one-year statute of limitations
applicable under Louisiana law.      For the reasons set forth below, we affirm.
                                         I.
      In 2008, Mark Hanna, Louisiana prisoner # 132872, filed a 42 U.S.C.
§ 1983 complaint against eight defendants, including corrections officers,
wardens, and other officials with the Louisiana Department of Public Safety
and Corrections (LDOC).      He sought damages for various claims, including
allegations that, during a 2003 disciplinary hearing, he was wrongfully
convicted of defiance in retaliation for refusing a medical procedure and
threatening to sue prison officials.    As a result of this defiance conviction,
Hanna served 10 days in isolation and forfeited 180 days of good time credit,
which prolonged his sentence by 90 days.       His defiance conviction was later
overturned based on insufficient evidence.
      Before service of process on the defendants, the district court dismissed
Hanna’s § 1983 action for failure to state a claim under 28 U.S.C.
§ 1915(e)(2)(B).   Hanna appealed, raising various arguments. See Hanna v.
Maxwell, 415 F. App’x 533, 534-37 (5th Cir. 2011).          This court affirmed in
part, vacated in part, and remanded for further proceedings after concluding
that Hanna had stated a retaliation claim. Id. at 535-37.         With respect to
Hanna’s other arguments, the court found no error or abuse of discretion in the
district court’s decision.   See id. 535-37 nn.1, 3.         Thus, only Hanna’s
retaliation claim remained extant.
      On remand, the magistrate judge issued a report on September 30, 2011
recommending dismissing Hanna’s § 1983 retaliation claim as barred by the
applicable statute of limitations.     Specifically, the magistrate judge found
that Hanna’s retaliation claim accrued in January 2003 when he was
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disciplined and that the applicable statute of limitations under Louisiana law
expired a year later in January 2004.     Hanna did not file timely objections to
the report and recommendation, and on October 21, 2011, following the
deadline for such objections, the district court issued a judgment concurring
with the magistrate judge’s report and dismissing Hanna’s action with
prejudice.
      On November 14, 2011, 24 days after entry of the district court’s
judgment, Hanna filed a motion for an extension of time to file a response to
the magistrate judge’s report, asserting that a mailman had placed the report
in a neighbor’s mailbox, that he did not receive it until after the time for filing
timely objections had passed, and that he disagreed with the magistrate
judge’s recommendation. On December 13, 2011, Hanna filed another motion
to extend the time for filing objections to the report. On December 15, 2011,
the magistrate judge issued an electronic order, without an attached
document, declaring Hanna’s postjudgment motions moot because the case had
already been dismissed.
      On January 10, 2012, Hanna filed his late objections to the magistrate
judge’s report.   On the same day, he appealed to the district court for review
of the magistrate judge’s denial of his requests for an extension of time to file
the objections.   On February 9, 2012, Hanna filed a motion to expedite his
appeal to the district court.   On February 10, 2012, the district court denied
this motion, finding no exceptional circumstances which might warrant
expedited consideration. On March 29, 2012, Hanna filed a motion reurging
his previously denied motion for an expedited appeal of the magistrate judge’s
decisions.



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       On April 5, 2012, the district court issued an Order addressing Hanna’s
reurged motion, in which it construed the motion as a motion for
reconsideration and addressed the merits of Hanna’s appeal of the magistrate
judge’s decisions.     The district court concluded: “There is no basis to
reconsider our decision dismissing Plaintiff’s claims, even taking into account
Mr.     Hanna’s    Objection    to    the         Magistrate     Judge’s   Report     and
Recommendation.”       In denying the motion, the district court again observed
that Hanna’s retaliation claim under § 1983 was time barred.                   The court
additionally denied as moot Hanna’s appeal from the magistrate judge’s denial
of his motion to extend.
       On April 17, 2012, within 30 days from entry of this final order, Hanna
filed a notice of appeal to this court.


                                            II.
       As a threshold issue, this court must first examine the basis of its
jurisdiction. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).           A timely
“notice of appeal in a civil case is a jurisdictional requirement.”            Bowles v.
Russell, 551 U.S. 205, 214 (2007).     A notice of appeal in a civil action must be
filed within 30 days of entry of the judgment from which the appeal is taken.
FED. R. APP. P. 4(a)(1)(A). However, certain postjudgment motions, including
a motion to alter or amend the judgment under FED. R. CIV. P. 59(e), may
extend the time for filing an appeal.           See Fed. R. App. P. 4(a)(4)(A)(iv).     A
motion for reconsideration of a district court’s judgment is treated as a Rule
59(e) motion for purposes of FED. R. APP. P. 4(a)(4), regardless of the label
applied to the motion, if it is made within the 28-day time limit for filing Rule
59(e) motions. Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994)

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(applying the former 10-day period for filing a motion under Rule 59(e)). A
timely appeal from the denial of Rule 59 relief is treated as an appeal from “the
underlying judgment when the intent to do so [is] clear.” In re Blast Energy
Servs., Inc., 593 F.3d 418, 424 n.3 (5th Cir. 2010).
      Although Hanna did not file a notice of appeal until nearly six months
after entry of the October 21, 2011 judgment dismissing his § 1983 retaliation
action, he filed the notice of appeal within 30 days of entry of the district court’s
order disposing of his appeal to the district court of the magistrate judge’s
decisions.   If Hanna’s motion is construed as a Rule 59(e) motion, then his
notice of appeal filed within 30 days of its final resolution is deemed timely.
      Hanna’s pleadings at the district court were not models of precision, but
we construe them liberally because he is proceeding pro se.        See, e.g., United
States v. Weathersby, 958 F.2d 65, 66 (5th Cir. 1992) (construing a pro se motion
improperly invoking 28 U.S.C. § 2241 as one instead invoking 28 U.S.C.
§ 2255); United States v. Santora, 711 F.2d 41, 42 (5th Cir. 1983) (“Mindful of
the liberality accorded pro se filings, we therefore elect to construe Santora’s
ill-styled Rule 35 pleading as a request for relief under § 2255.”).       However
Hanna labeled his motion, it clearly evinced a desire for the court to reconsider
its judgment, and it was filed within the 28-day time limit for filing Rule 59(e)
motions.
      In addition, this court has liberally construed postjudgment objections to
a magistrate judge’s report as a motion capable of tolling the time for filing a
notice of appeal.   See United States v. Gallardo, 915 F.2d 149, 150 & n.2 (5th
Cir. 1990) (construing objections to the report, filed in a criminal case after
entry of the final judgment, as a motion for reconsideration that tolled the time
for filing a notice of appeal until after entry of the court’s order disposing of the

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motion).     As in Gallardo, the district court’s judgment herein “had already
been entered” at the time Hanna filed his motion for an extension.       Unlike in
Gallardo, Hanna initially did not file his specific objections to the report, only
a motion for an extension of time to file those objections.     However, he later
filed his specific objections, which the district court considered when it issued
its final order on April 4, 2012.       A district court has discretion to hear
objections filed after the deadline, Rodriguez v. Bowen, 857 F.2d 275, 277 (5th
Cir. 1988), and the district court exercised that discretion here.
      We find that Hanna timely filed what was, in substance, a motion for
reconsideration under Rule 59(e) and that we possess jurisdiction to hear this
appeal.


                                        III.
      This court conducts a de novo review of the time-bar dismissal of a § 1983
action.    See Price v. City of San Antonio, Tex., 431 F.3d 890, 892 (5th Cir.
2005).     Federal courts look to federal law to ascertain when a § 1983 action
accrues and the limitations period begins to run; however, “state law supplies
the applicable limitations period and tolling provisions.”    Harris v. Hegmann,
198 F.3d 153, 156-57 (5th Cir. 1999).    In Louisiana, the applicable limitations
period is one year.    See Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002);
LA. CIV. CODE ANN. ART. 3492.
      Here, the parties do not dispute the applicable limitations period; rather,
they dispute when Hanna’s action accrued.        In general, a § 1983 action does
not accrue until a plaintiff “knows or has reason to know of the injury which is
the basis of the action.” Harris, 198 F.3d at 157 (internal quotation marks
and citation omitted).     This general analysis is altered, however, when a

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plaintiff’s § 1983 claim for damages stems from an allegedly unconstitutional
disciplinary conviction.   If a judgment in favor of a plaintiff would necessarily
imply the invalidity of a disciplinary conviction or affect the duration of
confinement, the accrual date of the claim is deferred or delayed until the
conviction is overturned.      Heck v. Humphrey, 512 U.S. 477, 486-87 (1994);
Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (applying Heck
holding to a disciplinary conviction).        The Heck doctrine is inapplicable,
however, when a § 1983 action does not implicate the validity of a conviction
or the duration of confinement.     Muhammad v. Close, 540 U.S. 749, 751-52,
754-55 (2004).
      When retaliation is alleged, an inmate need not show that a disciplinary
conviction has been overturned.      See Woods v. Smith, 60 F.3d 1161, 1164-65
(5th Cir. 1995).     A retaliation claim focuses not on the merits of the
disciplinary proceeding but on the retaliatory “interference, asking only
whether there has been an obstruction of the exercise of a constitutional right.”
Id. at 1165. The “concern is whether there was retaliation for the exercise of
a constitutional right, separate and apart from the apparent validity of the
underlying disciplinary” conviction.    Id.
      As noted, the only remaining claim in this action following this court’s
prior decision was Hanna’s retaliation claim.     See Hanna, 415 F. App’x at 535-
37. At the time of the earlier appeal, the applicable limitations period was
not at issue, see id. at 534-36, but it is now squarely before this court.   We find
that the district court correctly dismissed his lawsuit as time barred because
Hanna filed the instant action in 2008, five years after the relevant
disciplinary action in 2003.



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                               IV.
 Accordingly, we affirm.




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EMILIO M. GARZA, Circuit Judge, specially concurring:

       I concur in the judgment, as it follows from the correct application of
Woods v. Smith, 60 F.3d 1161 (5th Cir. 1995). In Woods, we explained that §
1983     retaliation claims are not subject to a favorable termination
requirement, since, according to the panel, such claims only allege retaliatory
“interference” with a constitutional right, and do not challenge a disciplinary
conviction on the merits.     Woods, 60 F.3d at 1164–65.        Here, Hanna’s
remaining claim alleges that his disciplinary sanctions—ten days in isolation
and the loss of 180 days of good-time credit—were retaliation for his exercising
his constitutional right to refuse medical treatment. Hanna v. Maxwell, 415
F. App’x 533, 535–36 (5th Cir. 2011) (Hanna I). Accordingly, under Woods,
reversal of Hanna’s disciplinary conviction was not a prerequisite to bringing
his retaliation claim. The claim thus accrued in 2003 and is now time-barred.
       I write separately to suggest that an en banc court reconsider Woods.
Two years after Woods, the Supreme Court held in Edwards v. Balisok, 520
U.S. 641 (1997), that a prisoner is barred from bringing a § 1983 procedural
challenge that, if successful, would necessarily imply the invalidity of a
disciplinary conviction resulting in the forfeiture of good-time credits, unless
that conviction is first reversed. Id. at 646. In that case, prisoner Balisok
alleged that the procedures used in his disciplinary proceeding violated his
Fourteenth Amendment due process rights. He contended that he was not
given any chance to put on a defense or call witnesses and that the hearing
officer was biased. Balisok did not challenge the conviction as a substantive
matter, and thus claimed that the favorable termination requirement of Heck
v. Humphrey, 512 U.S. 477 (1994), did not bar his claim. Balisok, 520 U.S. at


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643–47.     However, the Court concluded that Heck still applied because
Balisok’s procedural challenge would, if successful, “necessarily imply the
invalidity of the deprivation of his good-time credits,” given the gravity of the
due process violations alleged. Balisok, 520 U.S. at 646. 1
       Like Balisok’s due process claims, Hanna’s retaliation action, if
successful, would necessarily imply the invalidity of a disciplinary conviction
resulting in the forfeiture of good-time credits.                Hanna challenges the
sanctions resulting from his defiance conviction. Hanna I, 415 F. App’x at
536. Crucially, these sanctions included the “deprivation of . . . good-time
credits.” Balisok, 520 U.S. at 646. 2 Hanna’s claim thus falls squarely within
the ambit of Heck and Balisok.            Accordingly, as a matter of law, Hanna’s
retaliation claim did not accrue until his disciplinary conviction was reversed, 3
and the lower court’s time-bar dismissal, while consistent with Woods, runs
counter to the Supreme Court’s teaching in Heck and Balisok.
       Woods and many subsequent decisions in this Circuit have established a

1 The disciplinary conviction at issue in Woods did not result in a loss of good-time credit.
Subsequently, however, the en banc court applied Woods to a retaliation claim that did
involve such a conviction and held that Heck still did not apply. See Clarke v. Stalder, 154
F.3d 186, 187 (5th Cir. 1998) (en banc) (reinstating panel’s analysis of retaliation claim in
Part IV of Clarke v. Stalder, 121 F.3d 222, 231 (5th Cir. 1997)).
2 See USCA5 R. 10–11, 26–27 (complaint seeking damages for allegedly “wrongful,

unconstitutional, prolonged and/or intensified incarceration” imposed pursuant to
disciplinary conviction (emphasis added)). Hanna’s ten days in isolation, standing alone,
would not have triggered Heck, since the isolation was merely a change in the conditions,
not the length, of his incarceration. Cf. Muhammad v. Close, 540 U.S. 749, 754–55 (2004)
(holding that Heck was inapplicable to prisoner’s claim alleging retaliatory prehearing lock-
up, because claim did not necessarily imply invalidity of conviction or of loss of good-time
credits).
3 The parties agree that when Heck bars a claim, the accrual date of an action is delayed

until the favorable termination requirement is satisfied. See Wallace v. Kato, 549 U.S.
384, 393 (2007) (“[The Heck rule] delays what would otherwise be the accrual date of a tort
action until the setting aside of an extant conviction which success in that tort action would
impugn.”).

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broad exemption from Heck’s favorable termination requirement: So long as a
prisoner alleges retaliation for his exercise of constitutional rights, he can
bring his claim immediately, even if the alleged retaliation consisted of a
disciplinary conviction that deducted good-time credits. 4              By contrast, the
Supreme Court recognizes no distinction between challenges to retaliatory
interference and those targeting disciplinary convictions themselves—between
the impact and merits of a conviction. 5 Rather, the sole inquiry under Heck


4 In the wake of Clarke v. Stalder, supra n.1, which applied Woods, our jurisprudence on
the question of Heck’s applicability to retaliation claims has developed through conflicting
unpublished opinions. Many opinions, in line with this panel’s and Clarke’s reading of
Woods, have held that § 1983 claims alleging retaliatory disciplinary action are
categorically exempt from Heck. See, e.g., Lynn v. Cockrell, 86 F. App’x 700 (5th Cir. 2004)
(unpublished); Kelly v. Sanders, 260 F.3d 622 (5th Cir. 2001) (unpublished). Other
opinions conclude that certain retaliation claims targeting the validity of disciplinary
convictions are Heck-barred. See, e.g., Peterson v. Peshoff, 216 F.3d 1079 (5th Cir. 2000)
(unpublished) (applying Heck and Clarke to bar retaliation claim “to the extent that [the
prisoner] seeks to challenge the disciplinary proceedings against him”); Hodges v. Frasier,
176 F.3d 479, at *3 (5th Cir. 1999) (unpublished) (concluding that “substantive retaliation
claims [alleging false disciplinary charges and due process violation, in addition to
retaliatory motive] were properly dismissed under the rule in Heck” (emphasis added)).
Still other unpublished opinions have distinguished between § 1983 claims alleging false
disciplinary charges or due process violations in disciplinary proceedings, which are subject
to Heck, and claims alleging retaliatory motive in bringing disciplinary charges, which are
not. See, e.g., Digges v. Jeffcoat, 149 F.3d 1177 (5th Cir. 1998) (unpublished) (holding that
Heck barred claims attacking “false disciplinary charges,” but distinguishing these claims
from “retaliation claim,” which was not subject to Heck); Sherman v. Quintanilla, 149 F.3d
1173 (5th Cir. 1998) (unpublished) (same). In all of these cases, we have lost sight of the
central inquiry of Heck and Balisok—whether a successful § 1983 claim would necessarily
imply the invalidity of a conviction resulting in a sentence change or loss of good-time
credits. Furthermore, even if we were to follow the above opinions and read Woods as
saving only non-“substantive” retaliation claims from Heck, Hanna’s claim was in fact
substantive in nature. He alleged that the disciplinary charges against him were false and
ungrounded—that “no written or established prison disciplinary rule . . . prohibits
[inmates] from refusing invasive medical treatment or from verbally threatening to sue
prison officials . . . .” USCA5 R. 15. To read Hanna’s claim as challenging solely the
interference with his rights, without regard for the validity of the disciplinary conviction,
would be a rather strained and artificial exercise.
5 Cf. Muhammad, 540 U.S. at 752–55 (holding that a § 1983 retaliation claim was not

Heck-barred, not by virtue of its being a retaliation claim, but because the allegedly

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and Balisok is whether a successful claim would necessarily imply the
invalidity of a conviction resulting in the loss of good-time credits. An en banc
court should revisit Woods and resolve this conflict between our precedents
and Supreme Court jurisprudence.




retaliatory disciplinary conviction resulted only in prehearing lock-up and not necessarily
in the loss of good-time credits).

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