     Case: 18-50170      Document: 00514962301         Page: 1    Date Filed: 05/17/2019




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

                                    No. 18-50170                            FILED
                                  Summary Calendar                      May 17, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
RUTHEN JAMES WEEMS, III,

                                                 Plaintiff-Appellant

v.

SERGEANT CONLEY; JUAN AVILA; PAUL SCRIVNER; ALLEN
THOMPSON; JASON STONE; JENNIFER HUSACK; JOHN ALLIVIO;
DUSTIN LOSAK,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:15-CV-332


Before BENAVIDES, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Ruthen James Weems, III, Texas prisoner # 144318, appeals the district
court’s judgment dismissing his 42 U.S.C. § 1983 complaint against Waco
Police Department Sergeant Conley and Officers Juan Avila, Jennifer Husack,
Paul Scrivner, Jason Stone, Allen Thompson, and John Allovio, and McLennan
County Sheriff’s Deputy Dustin Losak.                The district court granted the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                 No. 18-50170

defendants’ motions and dismissed Weems’s complaint without prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(6). We review the grant of a
motion to dismiss under Rule 12(b)(6) de novo. Elsensohn v. St. Tammany
Parish Sheriff’s Office, 530 F.3d 368, 371 (5th Cir. 2008).
      The district court concluded that Weems’s unlawful entry, unlawful
search and seizure, false arrest, false reporting, and false testimony claims
were barred by Heck v. Humphrey, 512 U.S. 477 (1994), because they
necessarily implied the invalidity of Weems’s convictions for aggravated
assault (enhanced) and unlawful possession of a firearm by a felon and Weems
failed to allege that the convictions had been reversed, expunged, declared
invalid, or called into question.     Weems challenges the district court’s
conclusion that that these claims were barred by Heck.
      The firearm that served as the basis for Weems’s convictions was a direct
and indirect product of the allegedly unlawful entry, search, seizure, and
arrest. Although Weems argues that the firearm could have been admissible
under the inevitable discovery doctrine because Officer Allovio left the
premises to procure a search warrant at the time of the unlawful search and
seizure, Weems acknowledges that the defendants did not have the requisite
probable cause until after their allegedly unlawful entry into his motel room.
See United States v. Ochoa, 667 F.3d 643, 650 (5th Cir. 2012). Thus, success
on Weems’s unlawful entry, search, seizure, and arrest claims would
necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487;
Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Because Weems’s false
reporting and testimony claims were related to the admissibility of the firearm,
success on these claims would likewise imply the invalidity of his convictions.
See Heck, 512 U.S. at 487.      Accordingly, the district court did not err in
concluding that the foregoing claims were barred by Heck. See id.



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                                  No. 18-50170

      The district court also concluded that Weems failed to state a Fourth
Amendment excessive force claim and that the defendants were entitled to
qualified immunity. Weems argues that his allegations, if taken as true, were
sufficient to state an excessive force claim and defeat the defendants’ qualified
immunity defense.
      Because Weems’s excessive force allegations were limited to Deputy
Losak and Officers Allovio and Avila, the district court did not err in concluding
that Weems failed to state an excessive force claim against Sergeant Conley
and Officers Husack, Scrivner, Stone, and Thompson. See Ashcroft v. Iqbal,
556 U.S. 662, 678-79 (2009). Further, although Weems’s alleged injuries were
sufficient to satisfy the injury requirement, see Alexander v. City of Round
Rock, 854 F.3d 298, 309 (5th Cir. 2017), Weems has not shown that the factual
allegations in his complaint were sufficient to state a facially plausible claim
that Deputy Losak and Officers Allovio and Avila used force that was clearly
excessive and objectively unreasonable, see Iqbal, 556 U.S. at 678-79; Westfall
v. Luna, 903 F.3d 534, 547-48 (5th Cir. 2018).        Finally, even if Weems’s
allegations were sufficient to state a facially plausible excessive force claim,
the allegations were not sufficient to show that the defendants’ actions were
objectively unreasonable in light of clearly established law at the time of his
arrest. See Iqbal, 556 U.S. at 678-79; Griggs v. Brewer, 841 F.3d 308, 313-15
(5th Cir. 2016).     Accordingly, the district court did not err in dismissing
Weems’s excessive force claim pursuant to Rule 12(b)(6).
      AFFIRMED.




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