     Case: 12-60863      Document: 00512475247         Page: 1    Date Filed: 12/18/2013




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

                                      No. 12-60863
                                                                                 Fifth Circuit

                                                                               FILED
                                                                       December 18, 2013

DAWN MELISSA DAIGRE,                                                      Lyle W. Cayce
                                                                               Clerk
              Plaintiff–Appellant

v.

CITY OF WAVELAND, MISSISSIPPI, a Municipal Corporation; JAMES A.
VARNELL, Chief; HENRY BOUGANIM, Officer; CLAY NECAISE, Sergeant;
CHRISTOPHER ALLEN, Officer; JOSHUA POYADOU, Officer, Individually
and in their official capacities as Police Officers with the City of Waveland,
Mississippi,

              Defendants–Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 1:10-CV-568


Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
PER CURIAM:*
       In this 42 U.S.C. § 1983 action, Plaintiff–Appellant Dawn Daigre appeals
the district court’s dismissal of her claims under the favorable termination rule
set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Officers responding to a
domestic disturbance call arrested Daigre after she refused the Officers’


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-60863
commands to get out of bed. She subsequently pleaded guilty to resisting
arrest. She then brought suit against the City of Waveland, its police chief,
and the Officers for, inter alia, use of excessive force and false arrest.             The
district court granted summary judgment in favor of the defendants. For the
reasons below, we affirm.
            I.     FACTUAL AND PROCEDURAL BACKGROUND
      On the evening of February 6, 2010, four members of the Waveland
Police Department—Henry Bouganim, Christopher Allen, Joshua Poyadou,
and Clay Necaise (collectively the “Officers”)—responded to a 911 call by
Tabatha Ann Dunkerson (“Dunkerson”).                  Dunkerson reported hearing a
commotion in the upstairs apartment of Plaintiff–Appellant Dawn Melissa
Daigre (“Daigre”) and expressed concern for Daigre in light of Daigre’s
pregnancy. 1 The officers arrived at Daigre’s apartment complex and, after
conferring with Dunkerson, went upstairs to Daigre’s apartment. 2                      The
Officers rang the doorbell and knocked on the door, but received no response.
After waiting for several minutes, the officers kicked in the door, which was
locked with a deadbolt, and entered the apartment. Once inside, the Officers
conducted a protective sweep of the apartment with weapons drawn.
      Accounts differ as to how or when the Officers entered Daigre’s bedroom.
Accepting Daigre’s account as true, the Officers entered her bedroom with guns


      1According to Daigre, she and her boyfriend had a “verbal confrontation” in her
apartment, after which her boyfriend left the apartment and Daigre went into her bedroom.

      2   The parties dispute whether Dunkerson informed the Officers of Daigre’s pregnancy.


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                                   No. 12-60863
and tasers drawn, and yelled at her to get down on the floor. The Officers
subsequently lowered their weapons, although Officer Poyadou continued to
point a taser at Daigre. Sergeant Necaise ordered her to “get the fuck out of
bed,” to which Daigre responded “why the fuck are y’all here?” 3 This exchange
repeated several times. When Officer Poyadou approached her bed with a
taser drawn, Daigre alleges that she said “[d]on’t do that, I’m . . . pregnant.”
Sergeant Necaise proceeded to pull the covers from her bed. Sergeant Necaise
and another officer then attempted to pull Daigre out of bed. Daigre resisted
by pulling back, using her body weight as leverage, initiating a kind of tug-of-
war. “[W]hen they pulled me, I pushed all of my body weight back. They pulled
me again and I pushed all my body weight. The next time they pulled me, they
slammed me into the wall.” As the Officers pulled Daigre out of bed, they also
tasered her. After being tasered, Daigre fell to the floor and urinated. By this
time, approximately ten minutes had passed from when the Officers entered
Daigre’s apartment.
      The Officers proceeded to handcuff Daigre, and lead her into the living
room. They refused to allow her to change out of her soiled clothes, but did
remove the taser barbs from her back. They also contacted paramedics to
examine her. There was no further physical contact, although Daigre and
Sergeant Necaise exchanged several verbal insults. The Officers continued
searching the rest of the house and found a large glass pipe in Daigre’s


      3  Although the Officers contend that they ordered Daigre to show her hands, she
claims that her hands remained visible at all times.


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                                       No. 12-60863
bedroom, later determined to belong to Daigre’s boyfriend, who used it to
smoke marijuana. Daigre was arrested and charged with possession of drug
paraphernalia, disorderly conduct, resisting arrest, and simple assault on a
police officer.     An ambulance took Daigre to a medical center where she
underwent an ultrasound that showed the fetus appeared healthy.
Afterwards, Daigre was taken to the Waveland Police Department, and then
the county jail.
      On February 22, 2010, Daigre initially appeared before the Waveland
Municipal Court, and asked for an attorney. On March 25, after an attorney
was appointed, Daigre pleaded guilty to resisting arrest in violation of
Mississippi Code § 97-9-73. 4 Daigre was fined $612.00 and sentenced to sixty
days in jail.     Her sentence was suspended.            The remaining charges were
dismissed or passed to the inactive file.
      Upon her release, and after unsuccessfully pursuing a complaint with
the Waveland Police Department, Daigre filed the present suit on December
15, 2010, asserting numerous federal and state law claims against the Officers
and Waveland Police Chief James Varnell, in their individual and official
capacities, as well as the City of Waveland. Defendants–Appellees (collectively


      4   Mississippi Code § 97-9-73 provides:
               It shall be unlawful for any person to obstruct or resist by force, or
               violence, or threats, or in any other manner, his lawful arrest or the
               lawful arrest of another person by any state, local or federal law
               enforcement officer, and any person or persons so doing shall be guilty
               of a misdemeanor, and upon conviction thereof, shall be punished by a
               fine of not more than Five Hundred Dollars ($500.00), or by
               imprisonment in the county jail not more than six (6) months, or both.


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                                    No. 12-60863
the “City”) filed a motion for summary judgment on April 13, 2012, which the
district court granted on September 24, 2012. Daigre timely appealed the
dismissal of her § 1983 excessive-force and false-arrest claims.
                         II. STANDARD OF REVIEW
      This court reviews a grant of summary judgment de novo, construing the
evidence in the light most favorable to the nonmoving party. See, e.g., United
Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 284 (5th Cir. 2006).
“Unsubstantiated      assertions,   improbable     inferences,   and   unsupported
speculation,” however, “are not sufficient to defeat a motion for summary
judgment.”    Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003).
Summary judgment is appropriate if the moving party can show that “there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                               III. DISCUSSION
A.    Excessive Force Claim
      The district court concluded that Daigre’s excessive-force claim was
barred under Heck v. Humphrey, 512 U.S. 477 (1994), because it was not
separable from the facts resulting in her conviction for resisting arrest. We
affirm the district court’s dismissal of Daigre’s excessive-force claim under
Heck solely on the basis of Daigre’s allegations, because they necessarily
challenge the validity of her conviction for resisting arrest.
      Heck prohibits a plaintiff from using a § 1983 suit to challenge the
validity of his conviction or sentence, unless the plaintiff demonstrates that
the conviction or sentence has in some way been reversed or invalidated. Bush

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v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). Consequently, “a plaintiff’s claim
is Heck-barred despite its theoretical compatibility with his underlying
conviction if specific factual allegations in the complaint are necessarily
inconsistent with the validity of the conviction.” Id. at 498 n.14 (alteration
omitted) (quoting McCann v. Neilsen, 466 F.3d 616, 621 (7th Cir. 2006)); see
also Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“It is irrelevant
that [a plaintiff] disclaims any intention of challenging his conviction; if he
makes allegations that are inconsistent with the conviction’s having been
valid, Heck kicks in and bars his civil suit.”). This is because “factual assertions
in pleadings are . . . judicial admissions conclusively binding on the party that
made them.” Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 108 (5th Cir.
1987) (alterations and citation omitted).
      In DeLeon v. City of Corpus Christi, 488 F.3d 649 (5th Cir. 2007), this
Court held a plaintiff’s excessive-force claims Heck-barred because the
complaint described a single violent encounter in which the plaintiff claimed
he was an innocent participant and necessarily challenged his aggravated-
assault conviction. Id. at 656–57. By contrast, in Bush, this court found that
a plaintiff’s excessive-force claims were not barred because, although the
plaintiff’s complaint stated that she “[a]t no time . . . resist[ed] her arrest,”
when the phrase was read in context, it was clear that she was referring to
conduct that occurred after she was restrained. 513 F.3d at 499 & n.18.
Comparing the complaint in this case to the complaints in DeLeon and Bush,
it is clear that Daigre’s excessive-force claim is subject to dismissal under Heck.



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        Daigre pleaded guilty to violating Mississippi Code § 97-9-73, which
prohibits “any person [from] obstruct[ing] or resist[ing] by force, or violence, or
threats, or in any other manner, his lawful arrest.” However, her complaint
contains several statements that contradict an admission of guilt under § 97-
9-73.    For example, Daigre’s complaint alleges, “At no time did [Daigre]
physically resist or assault the Defendant Officers in any way, and the force
used against her was unnecessary, unreasonable and excessive.”                 The
complaint further states that “[a]t no time during the events described . . . was
[Daigre] . . . a threat to the safety of herself or others, or disorderly.” Bluntly,
the complaint says, “[Daigre] committed no criminal offenses.” The complaint
elsewhere summarizes, “[T]he Defendant Officers’ assault, arrest, and
detainment of [Daigre] was illegal, wrongful and false, where [Daigre] had
committed no crime, and there was no need for any amount of forceCexcessive
or otherwiseCto be administered against her.”
        The total effect of these statements is clear: Daigre’s excessive-force
claim is barred because she “still thinks [she is] innocent.” DeLeon, 488 F.3d
at 657. Unlike the allegations in Bush, Daigre’s broad claims of innocence
relate to the entire arrest encounter, and not merely a discrete part of it. See
Bush, 513 F.3d at 499. The result is dismissal under Heck. See DeLeon, 488
F.3d at 657; see also Whatley v. Coffin, 496 F. App’x 414, 417 (5th Cir. 2012)
(per curiam) (unpublished) (“We need not determine whether [plaintiff’s]
excessive force claims undermine an element of his assault of a public servant
convictions because the facts alleged in his complaint were inherently
inconsistent with those convictions.”); Arnold v. Town of Slaughter, 100 F.

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                                  No. 12-60863
App’x 321, 324 (5th Cir. 2004) (per curiam) (unpublished) (claims barred where
plaintiff “claim[ed] that he did nothing wrong, but was viciously attacked for
no reason”).
B.    False Arrest Claim
      After reviewing the Heck doctrine, the district court summarily
concluded that Daigre’s claim of false arrest is clearly barred. We agree.
       Although “a claim of unlawful arrest, standing alone, does not
necessarily implicate the validity of a criminal prosecution following the
arrest,” Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995), the Heck Court
observed that § 1983 unlawful-arrest claims cannot lie in cases in which “[a]
state defendant is convicted of and sentenced for the crime of resisting
arrest . . . [because] he would have to negate an element of the offense of which
he has been convicted.” Heck, 512 U.S. at 486 n.6. Allowing Daigre to proceed
with her false-arrest claim would necessarily attack one of the grounds for her
arrest because she was charged with, and ultimately pleaded guilty to,
resisting arrest. As in Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995):
      If there was probable cause for any of the charges made—here
      either disorderly conduct or resisting a search—then the arrest
      was supported by probable cause, and the claim for false arrest
      fails. Thus, [plaintiff’s] proof to establish his false arrest claim,
      i.e., that there was no probable cause to arrest either for disorderly
      conduct or for resisting a search, would demonstrate the invalidity
      of [his] conviction for resisting a search.
Id. at 95; see also Thomas v. La. Dep’t of Soc. Servs., 406 F. App’x 890, 898 (5th
Cir. 2010) (per curiam) (unpublished) (false-arrest claim “would necessarily
require the district court to re-evaluate the lawfulness of her arrest and

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criminal conviction because proof of” false arrest would require proving that
the arrest was unlawful); Cano v. Bexar Cnty., Tex., 280 F. App’x 404, 408 (5th
Cir. 2008) (per curiam) (unpublished) (false-arrest claim Heck-barred where
conduct that provided probable cause to arrest also formed the basis of
conviction). For the same reason, we hold Daigre’s false-arrest claim barred
under Heck.
                            IV. CONCLUSION
      For these reasons, we AFFIRM the district court’s grant of summary
judgment in the City’s favor.




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