     Case: 19-30398      Document: 00515208305         Page: 1    Date Filed: 11/21/2019




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

                                                                               FILED
                                    No. 19-30398                         November 21, 2019
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

BRENT MIRONELLE LEE, Individually and on behalf of his minor children
real party in interest Jamal Lee real party in interest Bre’Unisty Lee,

               Plaintiff - Appellant

v.

JASON ARD, Sheriff, In His Official Capacity as Sheriff of Livingston Parish;
CARL CHILDERS, Sergeant,

               Defendants - Appellees




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:17-CV-23


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Brent Lee brought suit under Section 1983 and state law against the
deputy sheriff who stopped him for a traffic violation and also against the
sheriff.    Lee claimed that the deputy allowed his canine to attack Lee
unnecessarily for a prolonged period, leading to physical and emotional


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30398
injuries. The district court granted summary judgment to the defendants on
the basis that the claims were barred because Lee’s conviction for resisting
arrest that was based on the same incident had not been invalidated. We
AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      On January 11, 2016, in Denham Springs, Louisiana, Sergeant Carl
Childers of the local sheriff’s office sought to stop an automobile driven by Lee
for failing to use a turn signal. Lee did not immediately stop but instead
continued to drive for approximately seven minutes. When Lee finally did stop,
he exited his automobile on foot and moved toward nearby houses. At this
point, Lee contends that Sergeant Childers caused his law-enforcement canine
to attack Lee “viciously” for an “excessive amount of time.” Among other
offenses, Lee was charged with resisting an officer.       See LA. STAT. ANN.
§ 14:108.
      On January 11, 2017, Lee, individually and on behalf of his minor
children, Jamal Lee and Bre’Unisty Lee, filed suit against Livingston Parrish
Sheriff Jason Ard and Sergeant Childers in the United States District Court
for the Middle District of Louisiana. Lee brought claims under 42 U.S.C.
§ 1983 and various Louisiana state laws. The district court dismissed all
official-capacity claims against Sheriff Ard and Sergeant Childers with
prejudice, dismissed the Section 1983 individual-capacity claim against
Sergeant Childers for the initial release of the canine, and held that all other
claims remained properly before the court.
      After this order of partial dismissal, Lee notified the district court and
the defendants that he pled guilty to the criminal charges against him,
including resisting an officer. The defendants moved for summary judgment
on all the remaining claims, arguing that because Lee pled guilty to the
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                                 No. 19-30398
charges against him, his claims arising from the same events that underlay his
conviction must be dismissed. The district court granted summary judgment
to defendants. This timely appeal followed.


                                DISCUSSION
      We review a grant of summary judgment de novo. Brown v. City of
Houston, 337 F.3d 539, 540 (5th Cir. 2003). “The court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). We construe evidence in the light most favorable to the
nonmoving party, but “[u]nsubstantiated assertions, improbable inferences,
and unsupported speculation are not sufficient to defeat a motion for summary
judgment.” Brown, 337 F.3d at 541.
      A plaintiff cannot use a Section 1983 suit in a manner that questions the
validity of his conviction unless he shows that the conviction has been reversed
or invalidated. Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). We have held
that if judgment for the plaintiff on a Section 1983 claim “would necessarily
imply the invalidity of his conviction or sentence,” then the claim is Heck
barred. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008). Because an
excessive-force claim that describes “a single violent encounter” in which the
plaintiff insists he was an innocent party would undermine the claimant’s
resisting-arrest conviction, Heck applies and bars the claim. DeLeon v. City of
Corpus Christi, 488 F.3d 649, 656–57 (5th Cir. 2007).
      An excessive-force claim is not Heck barred, however, if it is “temporally
and conceptually distinct” from the conviction. Bush v. Strain, 513 F.3d 492,
498 (5th Cir. 2008). A claim that excessive force occurred after the arrestee
submitted to the officer and stopped resisting “would not necessarily imply the
invalidity of a conviction for the earlier resistance.” Id. Lee argues that his
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                                    No. 19-30398
claims are distinct in the manner recognized in Bush. The argument fails
unless Lee presented some evidence to create a fact issue that he was subjected
to excessive force after he surrendered to Sergeant Childers.
      We start with what Lee alleges in his complaint. He describes an event
in which officers “attempted to initiate a traffic stop,” and Sergeant Childers
released his canine “to assist with the arrest.”          The complaint makes no
mention of Lee’s resistance and therefore does not support that his resistance
ended prior to the alleged use of excessive force. With regard to evidence, Lee
stated in his deposition that he did not use physical force at any time during
the underlying incident. 1 An assertion in a Section 1983 suit that a person is
innocent of the conduct that underlies his extant conviction leaves no place for
a temporal division between the initial resistance supporting the conviction
and the officer’s later use of excessive force. DeLeon, 488 F.3d at 657. Thus,
Lee’s claim is inconsistent with his conviction and barred by Heck. Id.
      Lee’s state-tort claims are also barred because such a suit “is not an
appropriate vehicle for challenging the validity of outstanding criminal
judgments.” Id. at 652.
      AFFIRMED.




      1  We acknowledge that Lee appears to admit some resistance in his statement of
undisputed facts. Such assertions are not evidence, and here they constitute an improper
impeachment of what Lee had previously claimed in his pleadings and testified in his
deposition. They do not create a fact issue.
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