     Case: 11-41151     Document: 00512045986         Page: 1     Date Filed: 11/07/2012




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

                                                                            FILED
                                                                         November 7, 2012
                                     No. 11-41151
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOHN M. WHATLEY,

                                                  Plaintiff-Appellant

v.

FRANK COFFIN, Chief of Police; JEFFREY HANCOCK, Officer; CITY OF
BEAUMONT,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CV-315


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        John M. Whatley, Texas prisoner # 1656081, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint against Beaumont Chief of Police
Frank Coffin, Beaumont Police Department Officers Raymond Shearer and
Jeffrey Hancock, and the City of Beaumont. He alleged that Officers Shearer
and Hancock used excessive force when they shot him in the hand during the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41151

course of his arrest for burglary of a building and that Chief Coffin failed to
adequately supervise and train the officers on the use of deadly force.
      State court documents demonstrate that as a result of the incident in
question, Whatley was indicted on two counts of aggravated assault of a public
servant in violation of TEX. PENAL CODE ANN. § 22.02(a)(2) and (b)(2)(B). The
indictments alleged that Whatley intentionally and knowingly threatened
Officers Shearer and Hancock with imminent bodily injury by using his truck,
a deadly weapon that in the manner of its use and attempted use was capable
of causing serious body injury and death. Pursuant to a plea bargain, Whatley
pleaded guilty to two counts of assault of a public servant in violation of
TEX. PENAL CODE ANN . § 22.01(a)(2) and (b)(1), which is a third degree felony
and a lesser included offense of aggravated assault of a public servant. He was
sentenced to concurrent terms of ten years of imprisonment.
      The district court dismissed Whatley’s complaint without prejudice for
failure to state a claim upon which relief may be granted and declined to exercise
supplemental jurisdiction over his state law claims. Specifically, the district
court determined that Whatley’s § 1983 claims were barred by Heck v.
Humphrey, 512 U.S. 477 (1994), because a judgment in his favor would imply
that his convictions for assault of a public servant were invalid.
      Whatley contends that the district court failed to provide him with
adequate fairness when it sua sponte dismissed his complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. A district court may sua sponte
dismiss a complaint under Rule 12(b)(6) “as long as the procedure employed is
fair.” Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (internal quotation
marks and citation omitted). “We have . . . suggested that fairness in this
context requires both notice of the court’s intention and an opportunity to
respond.” Carroll v. Fort James Corp., 470 F.3d 1171, 1177 (5th Cir. 2006)
(internal quotation marks and citation omitted).



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                                   No. 11-41151

      The record reflects that Whatley was notified of the Heck-bar issue and
afforded multiple opportunities to contest a dismissal on that ground. Although
the district court initially adopted the magistrate judge’s report and
recommendation without considering Whatley’s objections, the court granted
Whatley’s motion for reconsideration in order to consider those objections.
Further, although the magistrate judge initially determined that Whatley’s
allegations stated a cause of action, this determination was made before the
defendants had filed their answers alleging that Whatley’s suit was barred by
Heck because he had been convicted of assault of a public servant as a result of
the incident in question. Accordingly, Whatley has not shown that the district
court failed to provide him with adequate fairness when it sua sponte dismissed
his complaint pursuant to Rule 12(b)(6). See Bazrowx, 136 F.3d at 1054.
      Whatley also contends that his § 1983 claims are not barred by Heck,
asserting that he was not attacking the legality of his convictions for the lesser
included offense of assault of a public servant and that a judgment in his favor
would not necessarily imply the invalidity of those convictions. He argues that
because the indictments alleged assaults by threat, the State abandoned the
deadly weapon findings, and he pleaded guilty to two counts of the “lesser
included offense of assault of a public servant,” his convictions were for
“attempted threat” pursuant to § 22.01(a)(2), TEX. CODE CRIM. PROC. ANN. art.
37.09(4), and TEX. PENAL CODE ANN. § 15.01(d). According to Whatley, the facts
underlying his excessive force claims were not related to or inconsistent with
those necessary to sustain these convictions. Specifically, he notes that as part
of his plea bargain, the State conceded that he did not use his truck as a weapon.
Without such a finding, Whatley speculates that his convictions were based on
the fact that the officers felt threatened by his long criminal history and his
earlier burglary of a convenience store.        He asserts that these facts were
insufficient to justify the officers’ use of deadly force.



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                                  No. 11-41151

      We review the dismissal of a complaint under Rule 12(b)(6) de novo.
Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011).
The complaint must “allege sufficient facts that, taken as true, state a claim that
is plausible on its face.” Id. Although we accept all well-pleaded facts as true
and view those facts in the light most favorable to the plaintiff, Gonzalez v. Kay,
577 F.3d 600, 603 (5th Cir. 2009), we do not “accept as true conclusory
allegations, unwarranted factual inferences, or legal conclusions,” Plotkin v. IP
Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005). Further, we may refer to matters
of public record when determining whether a Rule 12(b)(6) dismissal is
warranted. Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994).
      In Heck, the Supreme Court held that a § 1983 claim that would
necessarily imply the invalidity of a conviction is not cognizable until the
plaintiff can demonstrate that the conviction “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.” 512 U.S. at 486-87, quote at 487.
We have applied Heck to § 1983 excessive force claims, observing that “the
determination of whether such claims are barred is analytical and fact-intensive,
requiring us to focus on whether success on the excessive force claim requires
negation of an element of the criminal offense or proof of a fact that is inherently
inconsistent with one underlying the criminal conviction.” Bush v. Strain, 513
F.3d 492, 497 (5th Cir. 2008).
      We need not determine whether Whatley’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.   Whatley’s complaint did not allege that he intentionally or
knowingly threatened the officers with imminent bodily injury to protect himself
against their use of unlawful force, that the officers’ use of excessive force
occurred after he had ceased his threatening behavior, or that the officers used

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                                  No. 11-41151

force far greater than that required for his arrest and out of proportion to his
threatening behavior. Instead, the incident was presented as a single violent
encounter during which the officers used excessive force and he was wholly
innocent. Specifically, Whatley’s complaint alleged that Officers Shearer and
Hancock began shooting at him without provocation, warning, or identifying
themselves as law enforcement officers. Although Whatley alleged that he had
started his truck and put it in gear, he denied that he was armed and dangerous,
that he acted in a violent manner, or that the situation was potentially explosive.
Therefore, accepting the version of events alleged by Whatley, his § 1983 claims
were necessarily inconsistent with his assault of a public servant convictions and
thus are barred by Heck. See DeLeon v. City of Corpus Christi, 488 F.3d 649,
656-57 (5th Cir. 2007). Accordingly, the district court’s judgment is AFFIRMED.




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