     Case: 16-41170      Document: 00514177897         Page: 1    Date Filed: 09/29/2017




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


                                    No. 16-41170
                                                                              FILED
                                                                     September 29, 2017
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
TIMOTHY JAMES FRYAR,

                                                 Plaintiff-Appellant

v.

DUSTIN STACKS; MARTIN HALL; SEAN LEWERS,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:15-CV-792


Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
       Timothy James Fryar, Texas prisoner # 1961774, filed a civil rights
complaint alleging that he was subjected to excessive force during his arrest
by three sheriff’s deputies with the Grayson County Sheriff’s Department. The
district court granted summary judgment in favor of the deputies and
dismissed Fryar’s complaint with prejudice.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-41170     Document: 00514177897      Page: 2   Date Filed: 09/29/2017


                                  No. 16-41170

      On appeal, Fryar argues that the district court erred in concluding that
his excessive force claim was barred under Heck v. Humphrey, 512 U.S. 477
(1994) and, alternatively, that the deputies were entitled to qualified
immunity. He argues that a material factual dispute remains with respect to
whether the deputies attacked him after placing him in handcuffs. He also
moves to supplement the record on appeal with photographs of injuries to his
face and hands, which he submits “clearly show evidence of excessive force.”
      Fryar was convicted of evading arrest/detention in violation of Texas
Penal Code § 38.04(a). A person violates § 38.04(a) “if he intentionally flees
from a person he knows is a peace officer or federal special investigator
attempting lawfully to arrest or detain him.” “One of the elements of the
offense of evading arrest is that the attempted arrest is lawful.” Porter v. State,
255 S.W.3d 234, 236 (Tex. App. 2008) (citation and internal quotation marks
omitted).
      Fryar’s claim that his arrest was unlawful because it involved the use of
excessive force would negate an element of the underlying criminal offense of
evading arrest/detention to which he pleaded guilty. See Bush v. Strain, 513
F.3d 492, 497 (5th Cir. 2008). Therefore, his excessive force claim is barred
under Heck unless Fryar can show that his conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by an
authorized state tribunal, or called into question by a federal court’s issuance
of a writ of habeas corpus. Heck, 512 U.S. at 487. Fryar has failed make such
a showing.    As such, the district court did not err in granting summary
judgment based on Heck. We need not resolve the issue of qualified immunity
given that Fryar’s claims are barred by Heck. See Connors v. Graves, 538 F.3d
373, 378 (5th Cir. 2008).




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    Case: 16-41170    Document: 00514177897     Page: 3   Date Filed: 09/29/2017


                                 No. 16-41170

      Although Fryar argues that there is a genuine issue of material fact
regarding whether the deputies used force against him after he was
handcuffed, he presented no summary judgment evidence. As such, he failed
to rebut the deputies’ statements in their affidavits that no excessive force was
used after Fryar was handcuffed. A party opposing a properly supported
summary judgment motion may not rest upon mere allegations contained in
the pleadings to demonstrate a genuine issue of material fact. Stauffer v.
Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
      Based on the foregoing, the judgment of the district court is AFFIRMED.
Fryar’s motion to supplement the record on appeal is DENIED.




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