     Case: 15-41573      Document: 00513600780         Page: 1    Date Filed: 07/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41573                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            July 20, 2016
TIMOTHY DODDS,                                                             Lyle W. Cayce
                                                                                Clerk
              Plaintiff – Appellant,

v.

CITY OF YORKTOWN, TEXAS; EDUARDO GARCIA; ALEX CAMPBELL,

              Defendants – Appellees.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 6:13-CV-66


Before STEWART, Chief Judge, and SMITH and OWEN, Circuit Judges.
PER CURIAM:*
       In this civil rights case, the district court granted Defendants-Appellees’
motion to dismiss Plaintiff-Appellant’s federal law claims on grounds that they
were barred by Heck v. Humphrey. The district court then granted the parties’
joint motion to dismiss Plaintiff-Appellant’s remaining state law claims. For
the reasons stated herein, we affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41573
                     I. FACTS & PROCEDURAL HISTORY
       Plaintiff-Appellant Timothy Dodds (“Mr. Dodds”) and his wife Dianna
Dodds (“Ms. Dodds”) 1 are the parents of Timothy Dodds, Jr. (“Timothy”).
Timothy was previously married to Adrianna Longoria (“Ms. Longoria”).
Timothy and Ms. Longoria, who are no longer married, have two young
children to which Mr. and Ms. Dodds are grandparents. Ms. Longoria is now
married to Antonio Longoria (“Mr. Longoria”) but continues to share custody
of her two children with Timothy.
       According to Mr. Dodds, on the evening of September 17, 2011, he and
Ms. Dodds received a call from Timothy stating that he had received a call from
his oldest child complaining that both children were at Ms. Longoria’s home
alone and they were afraid. After receiving a “welfare call” from an anonymous
caller stating that the children were home alone, a Yorktown Police
Department dispatcher contacted Sergeant Eduardo Garcia, Jr. (“Sgt.
Garcia”), who lived next door to the Longorias, and requested that he go to the
home to find out if the children were there alone. When Sgt. Garcia arrived to
the home, both Mr. and Ms. Longoria were there. Alex Campbell, a certified
detention officer and a friend of the Longorias, was also there. Sgt. Garcia,
Campbell, and Mr. Longoria were all on the front porch of the Longorias’ home
when Mr. and Ms. Dodds arrived.
       The facts surrounding the remainder of the incident are somewhat in
dispute but the record generally reflects that Ms. Dodds exited the vehicle first
and walked toward the porch where Sgt. Garcia, Campbell, and Mr. Longoria
were standing. Ms. Dodds asked where the children were and Sgt. Garcia
identified himself as a police officer with the Yorktown Police Department and



       1Ms. Dodds was listed as a plaintiff in the underlying proceedings but only Mr. Dodds
appeals herein.
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told Ms. Dodds to leave the premises. Mr. Dodds then exited the vehicle and
began walking toward Ms. Dodds and the three men.                        Sgt. Garcia again
identified himself as “Yorktown PD” and told Mr. and Ms. Dodds to leave the
premises. When Mr. and Ms. Dodds continued to ignore his commands to
leave, Sgt. Garcia announced that he had a taser and told them that they would
be arrested if they did not leave the premises.                According to Defendants-
Appellees, at this point Mr. Dodds went into a “fighting stance” and continued
to advance toward Campbell with “clinched fists.” Sgt. Garcia then tased Mr.
Dodds 2 and called an emergency medical services transport (“EMS”). The
record also reflects that, at this time, Sgt. Garcia handed the taser to
Campbell 3 and instructed him to tase Mr. Dodds if he moved again. Once EMS
arrived, Mr. Dodds declined to go to the hospital and both Mr. Dodds and Ms.
Dodds were transported to the DeWitt County Jail where they were detained
overnight.     Mr. Dodds was arrested for criminal trespass, obstruction or
retaliation, and terroristic threat. Ms. Dodds was arrested for criminal
trespass and interference with the duties of a public servant. 4
       Mr. Dodds was ultimately convicted of retaliation, a third-degree felony,
and his conviction was affirmed on appeal. See Dodds v. State, No. 13-13-
00288-cr, 2014 WL 6676774, at *8 (Tex. App.—Corpus Christi Nov. 25, 2014);
Tex. Penal Code Ann. § 36.06(a)(1)(A),(c) 5. While the criminal proceedings
were pending, Mr. Dodds filed the underlying civil rights suit against Sgt.


       2  The record is unclear as to how many times Mr. Dodds was actually tased.
       3  The record reflects that Campbell was certified to use a taser as a result of his
training as a detention officer.
        4 All charges against Ms. Dodds were ultimately dismissed.
        5 The elements of retaliation under section 36.06(a)(1)(A) are: (1) the defendant (2)

intentionally or knowingly (3) harms or threatens to harm (4) another person (5) by unlawful
act (6) in retaliation for or on account of (7) the service or status of another (8) as a public
servant, witness, prospective witness, or informant. See Cada v. State, 334 S.W.3d 766, 770
(Tex. Crim. App. 2011). A police officer is a public servant. See Carriere v. State, 84 S.W.3d
753, 757 (Tex. App.—Houston 2002).
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                                      No. 15-41573
Garcia and the City of Yorktown, Texas, alleging both federal and state law
claims.    See 42 U.S.C. § 1983.         In that suit, Mr. Dodds alleged a Fourth
Amendment excessive force claim and several other federal law claims which
he does not advance on appeal.
       The civil suit was temporarily stayed pending the outcome of the
criminal proceedings. Once Mr. Dodds’ criminal conviction for retaliation was
affirmed on appeal, the civil proceedings resumed and Defendants-Appellees
filed a motion to dismiss Mr. Dodds’ claims on grounds that they were barred
by Heck v. Humphrey. 6 Agreeing that Mr. Dodds’ claims were Heck-barred, the
district court granted Defendants-Appellees’ motion and dismissed Mr. Dodds’
federal law claims. The parties then filed a joint stipulation to dismiss Mr.
Dodds’ remaining state law claims which was also granted. Mr. Dodds now
appeals.
                           II. STANDARD OF REVIEW
       We conduct a de novo review of a district court’s dismissal under Rule
12(b)(6), applying the same standard as the district court. In re Katrina Canal
Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007). We accept “all well-pleaded
facts as true, viewing them in the light most favorable to the plaintiff.” Id.
(citations omitted). “To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead ‘enough facts to state a claim to relief that is plausible on its face.’”
Id. (citation omitted). “Factual allegations must be enough to raise a right to




       6 512 U.S. 477, 486—87 (1994) (holding that “in order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence 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, 28 U.S.C. § 2254.”).

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                                       No. 15-41573
relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Id. (citation omitted).
                                   III. DISCUSSION
       On appeal, Mr. Dodds’ sole argument is that the district court erred in
dismissing his excessive force claim. This court has consistently acknowledged
that “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.”
Daigre v. City of Waveland, Miss., 549 F. App’x 283, 286 (5th Cir. 2013) (per
curiam) (unpublished) (citing Bush v. Strain, 513 F.3d 492, 497 (5th Cir.
2008)). As a result, “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. (citing Bush, 513 F.3d at 498 n. 14 (citation omitted)). This is because
“factual assertions in pleadings are . . . judicial admissions conclusively binding
on the party that made them.” Id. (citing Davis v. A.G. Edwards & Sons, Inc.,
823 F.2d 105, 108 (5th Cir. 1987)).
       In DeLeon v. City of Corpus Christi, we held that a plaintiff’s excessive-
force claims were 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. 488
F.3d 649, 656–57 (5th Cir. 2007). 7 On the other hand, we held in Bush v. Strain
that a plaintiff’s excessive-force claims were not barred because it was clear
that she was referring to conduct that occurred “after she was restrained.” 513
F.3d 492, 499 & n. 18 (5th Cir. 2008).


       7In light of this case and other similar cases decided by this court, we disagree with
Mr. Dodds’ assertion on appeal that an inquiry as to whether an excessive force claim is Heck-
barred should not be decided on a 12(b)(6) dismissal.
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                                       No. 15-41573
      Here, we agree with the district court that many of Mr. Dodds’ alleged
facts in his First Amended Complaint are inconsistent with his conviction for
retaliation, including his assertions that he never made any verbal or physical
threats toward anyone and that Sgt. Garcia’s claim to be a police officer was
not credible. 8 As noted by the district court, these statements are in direct
conflict with Mr. Dodds’ conviction for retaliation, wherein it was shown that
he intentionally or knowingly harmed or threatened to harm another person
by unlawful act in retaliation for or on account of the service or status of
another as a public servant—here, a police officer. See Tex. Penal Code Ann.
§ 36.06(a)(1)(A).
      We disagree with Mr. Dodds’ argument that the district court incorrectly
applied the doctrine of Heck v. Humphrey in dismissing his claims. Mr. Dodds
submits that “[u]nder Heck, if there are any pleaded facts that are not
inconsistent with the conviction that can support a claim for excessive force,
Heck does not apply.” (emphasis in original). However, as this court has stated,
“[w]hen a plaintiff alleges tort claims against his arresting officers, the district
court must first consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence. . . [i]f so, the claim
is barred . . . [.]” DeLeon, 488 F.3d at 652 (internal quotation marks and
citation omitted). Our review of the record reveals that the district court
correctly conducted this analysis under Heck in its review and ultimate
dismissal of Mr. Dodds’ claims.
      In support of his excessive force argument on appeal, Mr. Dodds also
attempts to draw a temporal distinction between the first time Sgt. Garcia
tased him and the subsequent times he alleges he was tased, arguing that
because he was incapacitated after being tased once, any subsequent tasing


      8   Mr. Dodds reiterates these factual allegations on appeal.
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                                   No. 15-41573
amounted to excessive force. According to the Memorandum Opinion of the
Texas Court of Appeals affirming Mr. Dodds’ criminal conviction for
retaliation, when Sgt. Garcia first deployed the taser, the leads “did not make
contact” with Mr. Dodds’ body. Dodds, 2014 WL 6676774, at *1. Consequently,
Mr. Dodds continued to advance toward Sgt. Garcia and Campbell and picked
up the taser leads himself, effectively closing the circuit, which caused him to
actually be tased. Id. at *1-2. These events clearly conflict with Mr. Dodds’
excessive force argument before this court that, after tasing him once, “Sgt.
Garcia tased Appellant repeatedly after he had already been incapacitated . . .
[.]” Moreover, in referencing Mr. Dodds’ argument appealing his retaliation
conviction, the appellate court recounted that he claimed that “his threatening
approach [toward Sgt. Garcia] was just a reaction to being struck by the Taser
barb or constituted angry gesticulations directed toward Sergeant Garcia.” Id.
at *3. Again, these events are in direct conflict with Mr. Dodds’ argument
before the federal district court and on appeal that he never verbally or
physically threatened anyone and that he was completely “incapacitated” after
being tased by Sgt. Garcia, thereby converting any alleged subsequent tasings
to the level of excessive force.
      Additionally, the evidence in the record supports the district court’s
conclusion, which is not disputed by Mr. Dodds, that these events clearly
constituted and arose from a “single violent encounter,” all of which preceded
Mr. Dodds’ ultimate arrest. See DeLeon, 488 F.3d at 656—57.
      Since the specific factual allegations contained in Mr. Dodds’ First
Amended Complaint, as supported by his excessive force argument on appeal,
are clearly inconsistent with the validity of his affirmed criminal conviction for
retaliation, we hold that the district court did not err in dismissing his claims
under Heck v. Humphrey. See Daigre, 549 F. App’x at 286—87; see also, Heck,
512 U.S. at 486—87.
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                            No. 15-41573
                        IV. CONCLUSION
 For the forgoing reasons, we affirm the district court’s judgment in full.




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