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

                                                                            FILED
                                                                           June 13, 2008

                                     No. 08-30087                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


CLAYTON ANTHONY WALKER, Individually and as the Administrator of
the Estate of Breanna Nicole Walker on behalf of Breanna Nicole Walker

                                                  Plaintiff–Appellant
v.

RUSS MUNSELL, Officer; DAVID HOOTER, Officer; RODNEY WALKER,
Officer

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CV-867


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       In the early morning of November 3, 2006, Appellant Clayton Anthony
Walker (“Appellant”) was pulled over by an officer of the Denham Springs Police
Department for failure to use a turn signal. According to Appellant, the officer
approached the vehicle, requested that he exit the vehicle, and asked for his
license and registration. When Appellant turned around to reach for the glove


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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compartment, the officer allegedly struck him from behind and maced him in the
face. After other officers arrived on the scene, Appellant contends that the
officers beat him, causing substantial injuries. During the altercation, one
officer instructed Appellant to stop resisting arrest, to which Appellant
responded that he was not resisting.
      The Appellee officers, however, contest these allegations. According to
Appellees, after Appellant pulled over, he took off and ran into the woods. The
officer who pulled Appellant over then chased Appellant and ultimately
apprehended him. Thereafter, the officers later arriving on the scene attempted
to handcuff Appellant but were unable to do so because Appellant was resisting
arrest.     Ultimately, one of the officers maced Appellant in the face and
handcuffed him.
      On November 13, 2006, Appellant filed suit against the Appellee officers
in federal court pursuant to 42 U.S.C. § 1983, alleging causes of action for
unreasonable search and seizure and excessive force, malicious prosecution,
cruel and unusual punishment, and failure to provide medical care.
Subsequently, in July of 2007, Appellant was convicted in a Louisiana state
court on three counts of resisting an officer and one count of failure to signal.
      Based on Appellant’s state court convictions, on October 1, 2007, the
district court granted summary judgment in favor of Appellees on the excessive
force and malicious prosecution claims pursuant to Heck v. Humphrey, 512 U.S.
477 (1994).1 The district court stated: “The [Appellant’s] excessive force and


      1
          Heck provides:

      [I]n order to recover damages for allegedly unconstitutional conviction or
      imprisonment, or for other harm caused by actions whose unlawfulness would
      render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
      conviction or sentence has been reversed on direct appeal, expunged by
      executive order, declared invalid by a state tribunal authorized to make such
      determination, or called into question by a federal court’s issuance of a writ of
      habeas corpus, 28 U.S.C. § 2254.

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malicious prosecution claims are hereby dismissed with prejudice until the Heck
conditions are satisfied.”          Walker v. Munsell, No. 3:06-CV-867, 2007 WL
3377202, at *5 (M.D. La. Oct. 1, 2007). Appellant now appeals.2
       Appellant first asserts that the district court erred by failing to find that
Appellees waived their Heck defense by not pleading it as an affirmative defense
in their answer. A Heck defense, however, is not waived by failure to plead it as
an affirmative defense and can be brought by motion at trial. See Watson v. New
Orleans City, 275 F.3d 46, 2001 WL 1268716, at *3 (5th Cir. Oct. 16, 2001)
(finding that the defendant did not waive her Heck defense by failing to plead it
as an affirmative defense).3
       Appellant next asserts that the district court’s application of Heck was
erroneous because a favorable judgment in his suit would not necessarily
invalidate his conviction for failure to signal or for resisting arrest. See Heck,
512 U.S. at 487 (“But if the district court determines that the plaintiff's action,
even if successful, will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action should be allowed to proceed
. . . .”) (footnote omitted). Rather, Appellant asserts that his civil rights claim
can coexist with his conviction for resisting arrest, as he can show that he
resisted a lawful arrest and that the officers used excessive force to effectuate
that arrest. Appellant’s claim, however, is not that the officers used excessive



512 U.S. at 486-87 (footnote omitted).
       2
         On July 24, 2007, the district court granted summary judgment in favor of Appellees
on Appellant’s claim of cruel and unusual punishment. Appellant does not contest this ruling
on appeal. Furthermore, Appellant voluntarily dismissed his failure to provide medical care
claim after the district court declined to certify its dismissal of Appellant’s excessive force claim
for interlocutory appeal.
       3
        Watson arrives at this conclusion by finding that “waivers of defenses based on
grounds rooted in considerations of state sovereignty are applied less harshly than other
waivers.” 275 F.3d 46, 2001 WL 1268716, at *3.

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force after he stopped resisting or to stop his resistance; his claim is based solely
on his assertions that he did not resist arrest, did nothing wrong, and was
attacked by the Appellee officers for no reason. Thus, Appellant’s suit “squarely
challenges the factual determination that underlies his conviction for resisting
an officer,” and if he prevails, “he will have established that his criminal
conviction lacks any basis.” Arnold v. Town of Slaughter, 100 F. App’x 321, 324-
25 (5th Cir. 2004). This type of excessive force claim is, therefore, the type of
claim that is barred by Heck in our circuit. Id.; see also DeLeon v. City of Corpus
Christi, 488 F.3d 649, 656-57 (5th Cir. 2007) (holding that Heck barred
Appellant’s excessive force claim where his complaint maintained that he did not
resist arrest and did nothing wrong and provided no alternative pleading or
theory of recovery).
      Third, Appellant argues that Heck does not apply because he was fined
and not imprisoned following his conviction, and he consequently had no
opportunity to challenge his conviction on habeas review. This circuit, however,
has determined that Heck’s bar applies to both custodial and non-custodial §
1983 plaintiffs. Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000).
      Finally, Appellant contends that the district court abused its discretion in
refusing to certify its dismissal of his excessive force claim for immediate appeal
under Federal Rule of Civil Procedure 54(b). This argument is wholly without
merit.
      AFFIRMED.




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