                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                           June 9, 2003

                                  FOR THE FIFTH CIRCUIT                             Charles R. Fulbruge III
                                    _________________                                       Clerk

                                        No. 02-60430
                                     _________________

JESSE ROGERS, JR.,

                                                                   Plaintiff - Appellant,

                                                 v.

JOHN ALLEN JONES, Etc.; ET AL.,

                                                                                    Defendants,

JOHN ALLEN JONES, Humphreys County
Sheriff; THOMAS OSBORNE,
Deputy, Humphreys County Sheriff's
Department,

                                                                 Defendants - Appellees.

_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                     USDC No. 4:00-CV-254-D-B
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and STEWART, Circuit Judges.

PER CURIAM:*

       Jesse Rogers, Jr. appeals the district court’s grant of the

defendants’ motion for judgment as a matter of law, which concluded

that his section 1983 claim against the defendants for the use of

excessive force was barred by the doctrine established in Heck v.


       *
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

                                                  1
Humphrey, 512 U.S. 477 (1994), by virtue of the fact that Rogers

had been convicted of disorderly conduct for his involvement in the

altercation from which his allegations of excessive force sprung.

Because we find that, on the facts of this case, success on his

claim would necessarily imply the invalidity of his conviction, we

find no error in the district court’s conclusion that his § 1983

claim is barred.            Accordingly, the grant of judgment as a matter of

law in favor of the defendants is AFFIRMED.

                                                    I

        Rogers, a Mississippi prisoner, filed an action under 42

U.S.C. § 1983 against Sheriff John Allen Jones and Deputy Thomas

Osborne, alleging that on March 20, 1998, when Rogers was a

pretrial detainee at the Humphreys County Jail, the defendants

attacked        and     beat     him,      without       provocation,           resulting         in    a

dislocated finger. He alleged the use of excessive force was cruel

and unusual punishment in violation of the Eighth Amendment.1                                        The

case proceeded to trial, and after the close of the plaintiff’s

case, the defendants moved for judgment as a matter of law and

dismissal of the § 1983 claim.                      The court granted the motion and

dismissed the case, noting that “Mr. Rogers was convicted in the



        1
          Rogers was convicted in state court of disorderly conduct in violation of Miss. Code Ann.
§ 97-35-7 before Justice Court Judge Gammons on March 26, 1998. Although this Court does not
have the transcript of the state proceedings, Rogers himself testified in this federal civil rights case
that, in the state hearing, he denied using any physical force or resisting the Sheriff’s efforts to place
him in the holding cell, and that Judge Gammons found him guilty anyway. As punishment, he was
assessed and paid a fine. This conviction was never challenged.

                                                    2
Justice Court for the incident that occurred on March 20th, 1998,

the facts giving rise to that conviction, the same facts, that the

plaintiff in this case bases his civil rights action.”                                 (Trial Tr.,

RE Tab 4, pp. 123-24).                 The court concluded Heck barred his claims

because       his    claims       of    excessive        force      necessarily         imply      the

invalidity        of    his     conviction         or    sentence.           Plaintiff        timely

appealed the dismissal of his claim to this court.

                                                  II

        This court reviews de novo the district court’s ruling on a

motion for judgment as a matter of law.                        Brown v. Bryan County, OK,

219 F.3d 450, 456 (5th Cir. 2000).                       After carefully reviewing the

arguments presented by the briefs, we agree with the district court

that Heck bars Rogers’s claims. Although Rogers argues that the

defendants          theoretically         could        have    used     excessive         force      in

violation of the Constitution without the excessive force claim

necessarily implying the invalidity of the disorderly conduct

conviction under the relevant Mississippi statute,2 we find that,

on the facts of this case, his excessive force claim is not


        2
         The statute under which Rogers was convicted criminalizes the failure to obey officers’
directives, as well as the use of physical force against an officer. Thus, while a conviction under Miss.
Code Ann. § 97-35-7 theoretically may allow a plaintiff to challenge the amount of force used by the
defendants without implicating the validity of an underlying disorderly conduct conviction, the
pertinent question is whether the complaint and allegations in this case imply the invalidity of the
conviction. The question at Rogers’s hearing on the disorderly conduct charge turned on the use of
force on the part of Rogers, rather than merely failure to obey a directive. Indeed, Rogers
acknowledged that as part of his defense to the disorderly conduct charge, he denied using physical
force against the officers and denied resisting officers’ efforts to put him in his holding cell. Thus,
this Court is not confronted with the theoretical situation presented by Rogers.

                                                   3
cognizable.

       To establish a claim of excessive force, Rogers must establish

that prison officials acted maliciously and sadistically, and not

in a good-faith effort to maintain or restore discipline. See

Baldwin v. Stalder, 137 F.3d 836, 838 (5th Cir. 1998) (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)).                              Rogers’s complaint

explicitly alleges that defendants “without cause, provocation or

warning, began to strike and kick Plaintiff.”                            (Complaint, ¶ 10).

The complaint also alleges that “[a]t no time did Plaintiff attempt

to resist Defendants Jones or Osborne, or offer violence to or

threaten either of them. In conjunction with the subject incident,

Plaintiff committed no crime nor has he been charged with the

commission of any crime.” (Complaint, ¶ 11). Furthermore, Rogers’

own testimony in this case indicates that he challenges the facts

essential to his conviction.                     He testified that the defendants

“beat me, they kicked me, sprayed me with Mace for no reason at

all.”      Questioned whether he, at any time used physical force or

resisted,        Rogers       answered,        “No,      sir.”      Thus,      the     testimony

necessary, and actually elicited at trial, to establish his claim

necessarily implies that his underlying conviction for disorderly

conduct in this case is invalid.3



       3
         The Seventh Circuit recently has come to the same conclusion; where a prisoner has engaged
in disorderly conduct, it is nearly impossible for him to satisfy the standards set out by the Supreme
Court to establish his claim of excessive force. See Higgason v. Shroyer, 1998 WL 847059 (7th Cir.
1998)(unpublished); see also Mayer v. Heims, 1996 WL 138588 (7th Cir. 1996)(unpublished).

                                                  4
                                 III

     Rogers’s claim that the defendants applied excessive force

against him in violation of the constitution’s prohibition on cruel

and unusual punishment is barred by Heck.    In attempting to show

that the defendants acted with malice and not in good faith to

restore discipline, Rogers must essentially renew his defense to

the disorderly conduct charge.    Accordingly, the decision of the

district court is

                                                         AFFIRMED.




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