                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               September 14, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10646
                         Summary Calendar


STEVEN RAY NELSON,

                                    Plaintiff-Appellant,

versus

KEVIN CAULEY, Etc.; ET AL,

                                    Defendants,

KEVIN CAULEY, State Trooper; SERGIO REYES,
Officer; HANK HAVENS, Deputy; SHERIFF
DEPARTMENT OF ROCKWALL COUNTY,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                      USDC No. 3:04-CV-828
                      --------------------

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

     Steven Ray Nelson, Texas prisoner # 1130776, appeals the

district court’s dismissal of his excessive-force claims against

Deputy Hank Havens and the Rockwall County Sheriffs Department

(Rockwall County).   He does not challenge the denial of his

defamation claims or his excessive-force claims against Officers

Cauley and Reyes, and this court declines to review such claims.

     *
       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this opinion should not be published and is not precedent except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.
                            No. 05-10646
                                 -2-

See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d at

744, 748 (5th Cir. 1987).

     The district court concluded that Nelson’s excessive-force

claims were barred by Heck v. Humphrey, 512 U.S. 477, 486-87

(1994), because they would call into question the validity of

Nelson’s convictions for aggravated assault on a public servant.

See Sappington v. Bartee, 195 F.3d 234, 236-37 (5th Cir. 1999).

Because the district court considered evidence outside the

pleadings in denying relief, its FED. R. CIV. P. 12(b)(6)

dismissal for failure to state a claim should be construed as a

summary judgment under FED. R. CIV. P. 56.   See Washington v.

Allstate Ins. Co., 901 F.2d 1281, 1283-84 (5th Cir. 1990).

     Nelson contends that the district court erred in dismissing

his claims against Havens because Havens’s trial testimony

indicated that he hit Nelson with his pistol at a time that

Nelson was falling out of his car.   He also postulates that

Havens may have sprayed mace on him after Nelson was arrested and

handcuffed.   He maintains that because these actions may have

occurred when Nelson was no longer placing the officers in

danger, his excessive-force claims would not call into question

the validity of his conviction for aggravated assault of a police

officer.   See, e.g., Smithart v. Towery, 79 F.3d 951, 952-53 (9th

Cir. 1996), cited favorably in Hudson v. Hughes, 98 F.3d 868, 873

(5th Cir. 1996).   Nelson has not presented sufficient evidence

establishing a genuine issue of material fact relating to the
                           No. 05-10646
                                -3-

district court’s conclusion that his claims were premature

pursuant to Heck.   See Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994)(en banc).

     Nelson also maintains that the district court erred in

dismissing his claims against Rockwall County, based on the

office’s failure to train Havens properly.   Because there is no

genuine issue of material fact regarding Havens’s use of force,

Rockwall County cannot be held liable for a failure to train.

See Shields v. Twiss, 389 F.3d 142, 151 (5th Cir. 2004).     The

judgment of the district court is thus AFFIRMED.
