     Case: 18-30705      Document: 00514931976         Page: 1    Date Filed: 04/26/2019




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

                                                                                FILED
                                    No. 18-30705                            April 26, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
SEANTREY MORRIS,

              Plaintiff - Appellant

v.

JOSEPH MEKDESSIE; BRANDON LEBLANC; DANIEL SWEARS;
ARTHUR S. LAWSON, in his official capacity as Chief of Police, City of
Gretna Police Department; GRETNA CITY,

              Defendants - Appellees




                   Appeal from the United States District Court
                      For the Eastern District of Louisiana
                             USDC No. 2:14-CV-1741


Before JOLLY, COSTA, and HO, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       Appeals in excessive force cases usually ask us to decide whether there
is sufficient evidence to overcome qualified immunity and allow the case to be
tried. This appeal is different because the main excessive force claim, which
challenges police use of a taser, survived summary judgment and went to a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-30705
jury. The jury found for the officer. That verdict flips how we normally
construe the evidence in excessive force appeals; we must now view the
evidence and all reasonable inferences in the officer’s favor. That dooms the
challenge to the verdict. We also see no basis to overturn the district court’s
pretrial dismissal of other claims against other defendants.
                                           I.
      Officer Joseph Mekdessie of the Gretna Police Department pulled up
behind Seantrey Morris at a red light and noticed an expired brake tag (the
tag is proof of the vehicle’s inspection). After the light turned green, Mekdessie
says he saw the car speeding. Mekdessie pulled the car over. Morris struggled
at first to find his proof of insurance and registration and, when he did, he
exited his vehicle to show them to Mekdessie. Mekdessie ordered Morris to
wait while he completed paperwork, so Morris returned and remained beside
his car. Mekdessie then returned with tickets for speeding and operating a
vehicle with an expired brake tag.
      Mekdessie asked Morris to sign the tickets. When Morris asked why he
was being ticketed, Mekdessie did not answer, and instead ordered him to sign
or be arrested. 1 Morris continued to ask and refused to sign. Mekdessie then
ordered him to place his hands behind his back so he could be arrested. Morris
did not comply. Mekdessie placed Morris in a headlock (Mekdessie called it a
“brachial stun”) and took him to the ground.
      Morris remembers little after this, but at some point he was tased,
handcuffed, and placed in the back of a police car, though in what order he is
not sure.    A different officer, who arrived after the melee began—Officer
Brandon LeBlanc—was the one who tased Morris. A brief video of the tasing


      1  Because the excessive force claim arising from the dispute between Morris and
Mekdessie was dismissed on summary judgment, we take the facts in the light most favorable
to Morris. Tolan v. Cotton, 572 U.S. 650, 657 (2014).
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                                  No. 18-30705
appears to indicate that Morris was already in handcuffs when the tasing
occurred. When Morris arrived at the Jefferson Parish Correction Center he
was immediately rerouted to the hospital with a broken jaw.
      Eventually Morris was charged with speeding, driving with an expired
tag, resisting a police officer, and battery of a police officer. He entered a
pretrial diversion plan and the charges were dismissed. Morris later sued
Officers Mekdessie, LeBlanc, and a third officer as well as the city of Gretna,
its police department, and its chief of police for unlawful arrest, false
imprisonment, excessive force, battery, and improper training and supervision.
The district court granted summary judgment on almost all of these claims but
it sent the claims of excessive force and battery against Officer LeBlanc to trial.
At the end of a two-day trial, the jury returned a verdict in favor of LeBlanc.
                                       II.
      Though Morris’s claims against LeBlanc arising from the tasing survived
summary judgment and reached a jury, he contends that “the jury failed to get
the facts right.” He does not put it in these terms, but his argument that the
facts required a verdict in his favor is tantamount to arguing that he proved
battery and excessive force so completely that the court should have held that
he prevailed as a matter of law. FED. R. CIV. P. 50(a), (b). But Morris did not
seek judgment as a matter of law in the district court (he only sought and was
denied a new trial, a ruling he does not appeal), so we are powerless to consider
whether a directed verdict would have been appropriate.           Unitherm Food
Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006); Price v. Rosiek
Const. Co., 509 F.3d 704, 707 (5th Cir. 2007).
      Even if we could, it is difficult to see how the fact-intensive nature of this
excessive force claim would be amendable to a directed verdict.            LeBlanc
testified that when he arrived on the scene Morris was punching Mekdessie,
so he tackled Morris to get him off Mekdessie. LeBlanc then got off Morris, but
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                                  No. 18-30705
saw that Morris was attempting to stand up. This prompted LeBlanc to warn
Morris that he was going to use a taser. When the warning went unheeded,
LeBlanc used the taser. The initial tasing did not stop Morris from talking and
continuing to get off the ground, so he deployed it multiple times. Morris
vigorously disputes LeBlanc’s testimony, but the jury gets to decide credibility.
And the video was not so definitive that it would mandate a verdict in Morris’
favor.
                                      III.
                                       A.
         Morris also challenges the pretrial dismissal of his other claims. The
district court held that Heck v. Humphrey, 512 U.S. 477 (1994), barred the false
arrest, unlawful seizure, and malicious prosecution claims, which were based
on the the arrest of Morris and the criminal charges against him. Heck does
not allow a civil rights lawsuit to be an alternative vehicle for to a criminal
case for challenging law enforcement decisions that resulted in arrest or
prosecution unless the criminal case was resolved “in favor of the accused.” Id.
at 484. Morris completed a pretrial diversion program. A division program is
essentially a middle ground between conviction and exoneration. Gilles v.
Davis, 427 F.3d 197, 211 (3d Cir. 2005) (explaining the procedure as a
“compromise” because although there is not guilty plea, a diversion imposes
burdens on the defendants “not consistent with innocence”). Even though it is
not a guilty plea, defendants entering diversion programs “acknowledge
responsibility for their actions.” Taylor v. Gregg, 36 F.3d 453, 455 (5th Cir.
1994) overruled on other grounds by Castellano v. Fragozo, 352 F.3d 939 (5th
Cir. 2003) (en banc). As such, “[e]ntering a pre-trial diversion agreement does
not terminate the criminal action in favor of the criminal defendant. . . .” Id.
at 456. Heck thus applies and dismissal was appropriate under our decades-


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                                      No. 18-30705
old rule. See id. (citing Singleton v. City of New York, 632 F.2d 185 (2d Cir.
1980)).
                                             B.
       Morris next argues that the district court erred by granting summary
judgment to Mekdessie on the excessive force claim based on their physical
encounter. Heck does not bar this claim because a challenge to the means of
arrest does not challenge the validity of the arrest. Bush v. Strain, 513 F.3d
492, 498 (5th Cir. 2008). The district court nonetheless found no evidence
supported the excessive force claim because it believed the undisputed
evidence was that Morris battered Mekdessie before Mekdessie used any force.
We are not sure the record supports a finding that Morris struck first, let alone
that there is no dispute about that. But the evidence is undisputed that Morris
resisted arrest and refused to put his hands behind his back. That resistance
justified Mekdessie to use a reasonable amount of force to effectuate the arrest.
Deville v. Marcantel, 567 F.3d 156, 167–68 (5th Cir. 2009). Morris fails to show
that the level of force Mekdessie applied was constitutionally unreasonable in
light of clearly established law, as he must to overcome Mekdessie’s qualified
immunity defense. See Griggs v. Brewer, 841 F.3d 308, 314–15 (5th Cir. 2016)
(granting qualified immunity to an officer conducting a similar takedown
maneuver). We affirm on this alternative basis. 2
                                             C.
       Because the police officers did not commit any constitutional violations,
the City of Gretna and its chief of police, Arthur Larson, cannot be liable for



       2 Morris also makes several arguments that summary judgment on this claim was
inappropriate because he was stopped without probable cause and should not have been
arrested. In essence, he argues that he only resisted arrest (triggering the response from
Mekdessie) because he was falsely arrested. Because this chain of causation relies on a false
arrest, Heck bars the argument.

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                                  No. 18-30705
failure to supervise and train the city’s police. The theory for that liability is
that the failure to supervise or train was a moving force behind an individual
officer’s unconstitutional use of force.    The jury’s verdict favoring Officer
LeBlanc, combined with the proper grant of summary judgment in favor of
Officer Mekdessie, means there is no underlying constitutional violation. That
means there can be no municipal liability or improper supervision claim.
Whitley v. Hanna, 726 F.3d 631, 648–49 (5th Cir. 2013); Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001).
                                     ***
      The judgement is AFFIRMED.




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