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

                                                                            FILED
                                                                         November 7, 2008

                                       No. 07-60988                   Charles R. Fulbruge III
                                                                              Clerk

MARK COUGLE,

                                                  Plaintiff-Appellant,
v.

COUNTY OF DESOTO, MISSISSIPPI; MARK BLACKSON, Individually
and in His Official Capacity as a DeSoto County Sheriff Deputy,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
              for the Northern District of Mississippi, Delta Division
                               No. 2:06CV139-M-A



Before DAVIS, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiff Mark Cougle appeals the grant of the defendants’ Motion for
Summary Judgment. Based on our agreement with the district court that
Cougle’s claims under 42 U.S.C. § 1983 are barred by the application of Heck v.
Humphrey, 512 U.S. 477 (1994), 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-60988

                                        I.
      In August 2006, Cougle filed a complaint for money damages against the
County of Desoto and Mark Blackson, a detective in the Desoto County Sheriff’s
Office, alleging wrongful arrest, wrongful search and seizure, and malicious
prosecution. The arrest, search and seizure, and prosecution occurred when
Blackson received a complaint from Ralph Yount alleging that Cougle had
possession of a motorcycle and lawn tractor that belonged to Yount and refused
to return them. Cougle had agreed to store the items for Yount, but refused to
return them unless Yount paid a storage fee for the items.
      At Blackson’s request, Cougle came to the sheriff’s office to be interviewed.
According to Blackson, Cougle confirmed the information provided by Yount and
also confirmed that he carried a firearm in conjunction with his repossession
business. Because Cougle had previously been convicted of grand larceny and
sentenced to three years probation, it was illegal for Cougle to possess a firearm.
      Based on Cougle’s alleged admission, Blackson obtained an arrest warrant
for Cougle and a search warrant for his house. No firearm was found in the
search. Blackson later learned the location of Yount’s motorcycle and tractor,
recovered them and returned them to Yount. A Desoto County grand jury no
billed the firearm and grand larceny charges against Cougle. However, in
August 2005, Cougle’s probation was revoked and Cougle was required to serve
one year in jail. The probation violation form states that Cougle “has been
arrested and charge (sic) with theft - other, possession of a weapon by a
convicted felon and taking away a spray rig . . [and] Harley-Davidson fat boy
bike belonging to Ronald and Bridgette Yount.” The Order Revoking Probation
listed three violations of the terms of Cougle’s probation: “failed to commit no
offense”, “failed to permit MDCC to visit at home or elsewhere”, and “failed to
remain in specified area.” Blackson testified at the probation hearing about the
events leading up to Cougle’s arrest and the seizure of Yount’s property.


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                                  No. 07-60988

      Cougle’s complaint in this case denies that he admitted to possessing a
firearm and contends that there was no probable cause for his arrest. He also
alleges that Blackson violated his fourth amendment rights by seizing the
motorcycle and lawn tractor without warrants or probable cause. The district
court granted the defendants’ motion for summary judgment dismissing Cougle’s
§ 1983 claims. Cougle appeals.
                                       II.
      The district court granted the defendants’ motion for summary judgment
on the basis that the instant action is barred by Heck v. Humphrey, 512 U.S. 477
(1994). In Heck, the Supreme Court held that “in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused
by actions whose lawfulness 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.” 512 U.S. at 486-
487. Heck applies to proceedings that call into question the fact or duration of
probation. Cotton v. Tex. Dep’t Criminal Justice, 35 F.3d 560, 560 (5th Cir.
1994)(unpublished); Jackson v. Vannoy, 49 F.3d 175, 177(5th Cir. 1995)
(applying Heck to § 1983 claim that would, if successful, imply the invalidity of
the revocation of plaintiff’s probation and parole).
      The district court correctly recognized that the allegations of unlawful
search and arrest in this case, if true, would necessarily imply the invalidity of
the revocation of Cougle’s probation, which was based, at least in part, on the
same search and arrest. Cougle has not demonstrated that the revocation of his
probation has been reversed, expunged, set aside or called into question as
required by Heck as a prerequisite for this case to proceed. Summary judgment
in favor of the defendants was therefore proper.

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                                No. 07-60988

                                     III.
     For the foregoing reasons, we affirm the district court’s grant of summary
judgment in favor of the defendants dismissing Cougle’s § 1983 claims pursuant
to Heck v. Humphrey.
     AFFIRMED.




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