                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                September 30, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-30082
                           Summary Calendar



BENNY WATSON,

                                     Plaintiff-Appellee,

versus

NICK CONGEMI, Etc., ET AL.,

                                     Defendants,

DAVID STROMEYER, Deputy,

                                     Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                       USDC No. 02-CV-3046-N
                        --------------------

Before JONES, BARKSDALE and PRADO, Circuit Judges.

PER CURIAM:*

     Kenner, Louisiana, Police Officer David Stromeyer appeals

the denial of his motion for summary judgment dismissal of a 42

U.S.C. § 1983 complaint on grounds of qualified immunity.

Plaintiff Benny Watson alleged that Officer Stromeyer used

excessive force in handcuffing Watson following his arrest for

stealing a beer from a convenience store and that he wrongfully

     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
                             No. 04-30082
                                  -2-

sprayed Watson with mace while Watson was incarcerated in a

police station holding cell.

     Officer Stromeyer argues that the magistrate judge**

misapplied the burden of proof in evaluating his claims of

qualified immunity; that both excessive force claims are barred

under the doctrine of Heck v. Humphrey***; and that he did not

violate Watson’s constitutional rights.       He argues in the

alternative that his conduct was objectively reasonable under the

circumstances.

     We find no error in the magistrate judge’s analysis of

Officer Stromeyer’s claims of qualified immunity.       Watson’s

excessive force claims are not barred under Heck because a

resolution of the claims in Watson’s favor would not necessarily

implicate the validity of any of his criminal convictions.         Heck,

512 U.S. at 486-87 fn.6-7.        Our review of the undisputed material

facts leads us to conclude that Watson has defeated summary

judgment based on qualified immunity by alleging the violation of

a constitutional right and because the undisputed material facts

do not show that Officer Stromeyer’s conduct was objectively

reasonable.     Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.

1993); Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th

Cir. 1998).     The magistrate judge did not err in denying Officer

Stromeyer’s motion to dismiss based on qualified immunity.

     **
       The parties consented to proceed before a magistrate
judge pursuant to 28 U.S.C. § 636(c).
     ***
           512 U.S. 477 (1994).
            No. 04-30082
                 -3-

AFFIRMED.
