     Case: 14-30831      Document: 00513001375         Page: 1    Date Filed: 04/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-30831                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            April 10, 2015
HAROLD JOE BLACK,                                                          Lyle W. Cayce
                                                                                Clerk
              Plaintiff–Appellant,

v.

DON HATHAWAY; ALLEN HARRIS; MAGISTRATE JUDGE HORNSBY;
JUDGE HICKS; J. RANSDELL KEENE; DONNA HALL; CARL TYLER;
STEVE JOE; RICK FARRIS; APRIL WRIGHT; WILLIAM D. HALL;
RICHARD STALDER; JAMES LEBLANC; JUDGE MARCOTTE; CHARLES
REX SCOTT; KARELIN BARBER; MAX WELL; ASSISTANT DISTRICT
ATTORNEY STEWART,

              Defendants–Appellees.




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CV-822


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30831

         Harold Joe Black’s 42 U.S.C. § 1983 complaint was dismissed on the
ground that the favorable-termination rule articulated in Heck v. Humphrey 1
bars his suit. Black, a former prisoner, argues that the favorable-termination
rule does not apply because he can no longer bring a petition for writ of habeas
corpus as he is no longer in custody. We affirm.
                                                  I
         Black was convicted of the distribution of cocaine in Louisiana state
court and was released from custody in 2013. While in custody, his conviction
was affirmed on appeal, 2 and he made numerous unsuccessful applications for
state post-conviction 3 and federal habeas corpus 4 relief.
         After his release from custody, Black, pro se, filed the present case.
Although the complaint is styled as making claims under 42 U.S.C. §§ 1981,
1982, 1983, and 1985, the operative portion of the complaint alleges only § 1983
violations. In short, the complaint alleges numerous state and federal officials,
as well as appointed counsel, violated Black’s constitutional rights in
connection with Black’s arrest, trial, and efforts to obtain appellate and post-
conviction relief.


         1   512 U.S. 477 (1994).
         2   State v. Black, 786 So. 2d 289 (La. Ct. App. 2001), writ denied, 815 So. 2d 831 (La.
2002).
         State ex rel. Black v. State, 135 So. 3d 632, reconsideration denied by, 148 So. 3d 573
         3

(La. 2014); State ex rel. Black v. State, 124 So. 3d 1094 (La. 2013); State ex rel. Black v. State,
98 So. 3d 818 (La. 2012); State ex rel. Black v. State, 98 So. 3d 336 (La. 2012); State ex rel.
Black v. Black, 98 So. 3d 304 (La. 2012); State ex rel. Black v. State, 42 So. 3d 400,
reconsideration denied by, 50 So. 3d 821 (La. 2010); State ex rel. Black v. State, 25 So. 3d 793,
reconsideration denied by, 27 So. 3d 288 (La. 2009); State ex rel. Black v. State, 15 So. 3d 1008
(La. 2009); State ex rel. Black v. State, 977 So. 2d 927, reconsideration denied by, 979 So. 2d
1274 (La. 2008); State ex rel. Black v. State, 904 So. 2d 738 (La. 2005); State ex rel. Black v.
State, 904 So. 2d 725 (La. 2005); State ex rel. Black v. State, 891 So. 2d 672, reconsideration
denied by 903 So. 2d 440 (La. 2005); State ex rel. Black v. State, 887 So. 2d 468 (La. 2004).
        Black v. Warden, No. 10-94-P, 2013 WL 1003526 (W.D. La. Mar. 13, 2013); Black v.
         4

Warden, No. 11-31209 (5th Cir. June 5, 2012); Black v. Warden, No. 09-30517 (5th Cir. Jan.
26, 2010); Black v. Warden, No. 05-30396 (5th Cir. Apr. 12, 2006).
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                                      No. 14-30831

      Black’s case was referred to a magistrate judge pursuant to 28 U.S.C.
§ 636. The magistrate recommended that the case be dismissed with prejudice.
The magistrate concluded that Black’s § 1983 claims were barred by the
favorable-termination rule articulated in Heck v. Humphrey. Alternatively,
the magistrate concluded that certain claims would be barred by prosecutorial
and judicial immunity and that other claims failed because Black’s appointed
attorneys were not state actors within the meaning of § 1983. The district
court agreed with the magistrate’s recommendation, dismissed Black’s suit
with prejudice, and sanctioned Black.
                                            II
      In Heck, the Supreme Court addressed the intersection between § 1983
and the federal habeas corpus statute, 28 U.S.C. § 2254. 5                The Court
established the favorable-termination rule:
      in 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. 6
However, Heck’s favorable-termination rule does not bar a § 1983 suit when
“the plaintiff’s action, even if successful, will not demonstrate the invalidity of
any outstanding criminal judgment against the plaintiff.” 7
      Heck involved a prisoner who was in custody when his § 1983 suit was
filed. 8 Thus, the prisoner in Heck had the ability to petition for a writ of habeas


      5   512 U.S. at 480.
      6   Id. at 486-87
      7   Id. at 487.
      8   Id. at 478.
                                            3
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corpus, and if successful, use the writ to satisfy the favorable-termination
requirement. However, the Court stated that the favorable-termination rule
also applied to “former state prisoners who, because they are no longer in
custody, cannot bring postconviction challenges.” 9
       Black’s argument is narrow. He does not contend that his § 1983 claims
are the type that ordinarily fall outside of Heck’s ambit, 10 i.e., claims that “will
not demonstrate the invalidity” of a plaintiff’s conviction. 11 Rather, because he
is no longer in custody and therefore cannot seek habeas relief to satisfy the
favorable-termination rule, Black contends that the rule does not apply to his
§ 1983 claims. He contends that in Spencer v. Kemna, 12 the Supreme Court
retreated from applying the favorable-termination rule to plaintiffs who are no
longer in custody.
       In Spencer, the Court concluded that a petition for writ of habeas corpus
challenging a revocation of parole was moot because the petitioner had
“completed the entire term of imprisonment underlying the parole
revocation.” 13 Spencer argued, inter alia, that Heck’s requirement that he
prevail in habeas to bring a § 1983 claim prevented his federal habeas petition
from being moot. 14 The Court rejected this argument, noting that Heck would




       9Id. at 490 n.10 (“We think the principle barring collateral attacks—a longstanding
and deeply rooted feature of both the common law and our own jurisprudence—is not
rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.”).
       10 See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se briefs are
afforded liberal construction, even pro se litigants must brief arguments in order to preserve
them.” (citation omitted)).
       11   Heck, 512 U.S. at 487.
       12   523 U.S. 1 (1998).
       13   Id. at 3, 18.
       14   Id. at 17.
                                              4
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not apply to bar a § 1983 claim by Spencer that “did not ‘necessarily imply the
invalidity of’ the [parole] revocation.” 15
      The majority opinion did not address the application of Heck’s favorable-
termination rule to an individual, like Spencer, who had been released from
custody. 16 However, in a concurring opinion joined by four Justices, Justice
Souter stated that “Heck did not hold that a released prisoner [must satisfy the
favorable-termination rule to bring] a § 1983 claim,” noting that “Heck did not
present such facts.” 17 Further, in a dissent, Justice Stevens stated that “given
the Court's holding that petitioner does not have a remedy under the habeas
statute, it is perfectly clear, as [the concurrence] explains, that he may bring
an action under 42 U.S.C. § 1983.” 18 Therefore, five members of the Court, in
dicta, indicated that Heck’s favorable-termination rule never applies to former
prisoners who are no longer in custody. Subsequently, in Muhammad v. Close,
the Court stated that this issue is unsettled. 19
      Several circuit courts have concluded that Spencer compels the
conclusion that Heck’s favorable-termination rule does not apply to a § 1983
suit by a plaintiff who is no longer in custody. 20 However, in Randell v.
Johnson, this court disagreed, concluding that in Heck, the court reached an
“unequivocal[]” holding. 21 We acknowledged the “dicta from concurring and


      15   Id. at 17 (quoting Heck, 512 U.S. at 487).
      16   See id.
      17   523 U.S. at 19 (SOUTER, J., concurring).
      18   Id. at 25 n.8 (STEVENS, J., dissenting).
      19   540 U.S. 749, 752 n.2 (2004) (per curiam).
      20 Cohen v. Longshore, 621 F.3d 1311, 1315-17 (10th Cir. 2010); Wilson v. Johnson,
535 F.3d 262, 265-68 (4th Cir. 2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501
F.3d 592, 599-603 (6th Cir. 2007); Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003);
Nonnette v. Small, 316 F.3d 872, 875-77 (9th Cir. 2002); Huang v. Johnson, 251 F.3d 65, 73-
75 (2d Cir. 2001); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999).
      21   Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (per curiam).
                                                5
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                                         No. 14-30831

dissenting opinions in Spencer” but “decline[d] to announce for the Supreme
Court that it has overruled one of its decisions.” 22
       Black acknowledges that we rejected his argument in Randell, but
nonetheless encourages us to allow his § 1983 suit to proceed. Under the well-
settled Fifth Circuit rule of orderliness, “one panel of our court may not
overturn another panel’s decision, absent an intervening change in the law,
such as by a statutory amendment, or the Supreme Court, or our en banc
court.” 23 Spencer preceded this court’s decision in Randell, 24 so Spencer is not
an intervening change in the law.
       On the other hand, Muhammad, was decided after Randell. 25                           We
recognize that Muhammad comes into tension with our decision in Randell.
Muhammad indicates that Heck’s statement that the favorable-termination
rule applies to former prisoners is dicta; Randell, in contrast, relied on the fact
that the Heck court reached an “unequivocal[]” holding to conclude that the
rule that extended to former prisoners. 26 But Muhammad only stated that the
application of the favorable-termination rule after a prisoner’s release remains
unsettled. 27 Muhammad failed to effect a change in the law that would allow
this panel to revisit the court’s decision in Randell. 28                 Therefore, Black’s
argument that Heck does not bar his § 1983 suit is unavailing.


       22 Id.; accord Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007); Williams v.
Consovoy, 453 F.3d 173, 177-78 (3d Cir. 2006); Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st
Cir. 1998).
       23   Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).
        See Spencer, 523 U.S. 1 (decided March 3, 1998); Randell, 227 F.3d 300 (decided
       24

September 26, 2000).
       25   Muhammad v. Close, 540 U.S. 749 (2004) (per curiam).
       26   Randell, 227 F.3d at 301.
       27   Id. at 752 n.2.
       28Cf. Thomas v. La., Dep’t of Soc. Servs., 406 F. App’x 890, 897-98 & n.5 (5th Cir. 2010)
(citing Muhammad, 540 U.S. at 752 n.2).
                                                 6
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                                No. 14-30831

                                     III
      Black also argues that the courts below erred in concluding that certain
defendants were immune from suit under § 1983 or could not be sued under
§ 1983 because they were not state actors. Because Black’s argument that he
can surmount Heck’s favorable-termination rule fails, we do not reach these
issues.
                               *      *      *
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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