     Case: 17-60122   Document: 00514595566     Page: 1   Date Filed: 08/10/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 17-60122
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
RALPH ARNOLD SMITH, JR.,                                        August 10, 2018
                                                                 Lyle W. Cayce
             Plaintiff - Appellant                                    Clerk

v.

JAMES M. HOOD, III, In his individual capacity; ALBERT LEE ABRAHAM,
JR., Individually; CYNTHIA T. EUBANK, In her individual capacity;
STANLEY ALEXANDER, In his individual capacity; ONETTA WHITLEY, In
her individual capacity; RALPH E. CHAPMAN, Individually; H. SCOTT
SPRAGINS, Individually; MEDICAL DOCTOR REB MCMICHAEL, In his
individual capacity; LUKE SAVOIE, In his individual capacity; MEDICAL
DOCTOR PAUL SCOTT MCGINNIS, In his individual capacity; JAMES G.
CHASTAIN, In his individual capacity; THE MISSISSIPPI DEPARTMENT
OF MENTAL HEALTH; JOHN DOES 1-20, Whose names and identities are
unknown at this time; LAWRENCE JOHN TUCKER, JR., Individually, also
known as Lucky,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before KING, DENNIS, and COSTA, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Ralph Arnold Smith brought suit under 42 U.S.C. § 1983 and the
Americans with Disabilities Act against various defendants for their conduct
related to his involuntary civil commitment. The district court dismissed his
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                                   No. 17-60122
claims in their entirety. He appeals. We AFFIRM in part and VACATE and
REMAND in part.
                                          I
      In April 2012, Ralph Arnold Smith allegedly hired two people—Keaira
Byrd and Derrick Lacy—to murder Lee Abraham, the attorney who had
represented his ex-wife during their divorce proceedings. See generally Smith
v. Chastain, No. 3:14–v–334–WHB–RHW, 2015 WL 1206918, at *2 (S.D. Miss.
Mar. 17, 2015). Upon their arrival at Abraham’s office, the two would-be
assassins were shot by agents from the Mississippi Attorney General’s Office.
Byrd was killed; Lacy was apprehended and led investigators to Smith. Smith
was arrested, and a grand jury returned two indictments against him, charging
him, inter alia, with capital murder for Byrd’s death and conspiracy to murder
Abraham.
      Smith asserted that he was suffering from a “major mental disease” that
rendered him incompetent to stand trial. The Leflore County Chancery Court
ordered an initial evaluation of Smith’s competency, and he was admitted to
the forensic unit at the Mississippi State Hospital for evaluation. After holding
multiple hearings on Smith’s competency, the Chancery Court ordered the
State to initiate involuntary civil commitment proceedings. The Chancery
Court held two commitment hearings in December 2014 and January 2015 at
which five doctors testified. Finding that Smith was suffering from a psychotic
mental disorder, the Chancery Court ordered that he be involuntarily civilly
committed as an inpatient to the State Hospital. 1




      1  In November 2016, Smith was ordered discharged from the State Hospital and
placed on involuntary outpatient civil commitment. Though no longer an inpatient, he
remains involuntarily civilly committed and subject to conditions including wearing an
electronic monitoring device, not accessing the internet or print media without prior
approval, and participating in intensive psychiatric treatment.
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                                       No. 17-60122
       Smith brought this 42 U.S.C. § 1983 and American with Disabilities Act
(ADA) suit against the Mississippi Department of Mental Health (DMH), State
Hospital doctors and personnel, state prosecutors, and four private attorneys
(including Lee Abraham, the man he allegedly conspired to murder).                          All
defendants except DMH were named in their individual capacities only. Smith
sought damages against these defendants under § 1983; Title II of the ADA, 42
U.S.C. § 12131 et seq.; and Mississippi state law. 2 His claims were based in
significant part on various allegations that defendants conspired to unlawfully
civilly commit him against his will.
       Defendants filed motions to dismiss all of Smith’s claims under Federal
Rule of Civil Procedure 12(b)(1) and 12(b)(6), asserting that his claims were
barred by Heck v. Humphrey, 512 U.S. 477 (1994), and state sovereign,
prosecutorial, and witness immunity. 3             The district court dismissed all of
Smith’s federal claims under Heck and state sovereign immunity and declined
to exercise supplemental jurisdiction over his state law claims. Smith timely
appeals. 4



       2  Though Smith’s complaint also alleged violations of 42 U.S.C. § 1985, he does not
brief on appeal what these violations are or why they were wrongly dismissed; consequently,
he has abandoned them. See Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014)
(forfeiture where party does not brief “in any perceptible manner” how he is entitled to relief
on his claims).
        3 Smith originally argued in his briefing on appeal that the district court erred by not

entering default against defendant Abraham. Smith subsequently filed an unopposed motion
to dismiss this issue, which we hereby grant.
        4 Pursuant to Federal Rule of Appellate Procedure 28(i), three of the private attorney
defendants filed joinders to other defendants’ briefs instead of independently arguing all of
their defenses. Citing out-of-circuit precedent, Smith alleges that these three defendants
have waived the right to adopt arguments in the other defendants’ briefs because, in their
Rule 28(i) letters, they “fail[] to explain how the co-appellees’ arguments pertain to [them].”
However, neither Rule 28 nor our case law requires appellees to explain in their filing why
joinder is appropriate, simply requiring that the arguments adopted are “equally applicable”
to both parties. See United States v. Harris, 932 F.2d 1529, 1533 (5th Cir. 1991). We find
that the arguments adopted are equally applicable, and that Smith’s argument is
consequently without merit.
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                                             II
       This court reviews the district court’s dismissal of Smith’s claims under
Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) de novo. See, e.g., In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007); Hebert v.
United States, 53 F.3d 720, 722 (5th Cir. 1995). To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must plead sufficient facts to state a plausible
claim for relief. Johnson v. Teva Pharm. USA, Inc., 785 F.3d 605, 610 (5th Cir.
2014). 5
                                             III
       The district court dismissed Smith’s ADA claims against DMH as barred
by the Eleventh Amendment. 6 Though the district court did not explicitly
engage with the framework established in United States v. Georgia, 546 U.S.
151 (2006), we agree with its conclusion. To determine whether the ADA
validly abrogates state sovereign immunity for claims brought under Title II,
a court asks:
       (1) which aspects of the State’s alleged conduct violated Title II; (2)
       to what extent such misconduct also violated the Fourteenth
       Amendment; and (3) insofar as such conduct violated Title II but
       did not violate the Fourteenth Amendment, whether Congress’s
       purported abrogation of sovereign immunity in such contexts is
       nevertheless valid.
Id. at 159; see also Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (applying
Georgia). Smith fails to apply or even reference this standard in his briefing,


       5  Smith contends that the district court erred by not accepting as true his allegation
that his commitment was unlawful. However, this allegation is a legal conclusion entitled to
no presumption of correctness. See Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002) (“[L]egal conclusions masquerading as factual conclusions will not suffice to
prevent a motion to dismiss.”).
        6 We note that the ADA cannot be assessed against an individual, see Hay v. Thaler,

470 F. App’x 411 n.19, 417 (5th Cir. 2012) (citing Kemp v. Holder, 610 F.3d 231, 234 (5th Cir.
2010)), and, in any event, Smith acknowledged that he abandoned his ADA claims against
the individual defendants in proceedings before the district court. Therefore, we affirm the
district court’s dismissal of Smith’s ADA claims against the individuals as well.
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relying instead on the incorrect proposition that state sovereign immunity is
validly abrogated for all Title II claims. Because Smith references only “wide-
ranging and ongoing ADA violations” without further specifying the alleged
violations, he does not identify on appeal “which aspects of the State’s alleged
conduct violated Title II,” whether that alleged misconduct “also violated the
Fourteenth Amendment,” or whether, failing an alleged violation of the
Fourteenth Amendment, “Congress’s purported abrogation of sovereign
immunity . . . is nevertheless valid.” Georgia, 546 U.S. at 159. Accordingly,
we affirm the district court’s dismissal of Smith’s ADA claims as barred by
state sovereign immunity.
                                        IV
      The district court dismissed Smith’s remaining § 1983 claims as barred
by the “favorable termination rule” established in Heck v. Humphrey, 512 U.S.
477 (1994). See, e.g., Ballard v. Burton, 444 F.3d 391, 394 (5th Cir. 2006). In
Heck, the Supreme Court held that a § 1983 claim for monetary damages is not
cognizable when “judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence” unless that conviction or sentence has
been “reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal . . . or called into question by a federal court’s issuance of a
writ of habeas corpus.” 512 U.S. at 487.
      However, “if the district court determines that the plaintiff’s action, even
if successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed in the
absence of some other bar to the suit.” Heck, 512 U.S. at 487. Determining
whether a particular claim is barred by Heck is “analytical and fact-intensive”
and requires the court to consider the specifics of the individual claim. Bush
v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). We conduct this analysis by
assessing whether a claim is “temporally and conceptually distinct” from the
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related conviction and sentence. See, e.g., id. at 498. We ask whether the
claims are “necessarily inconsistent” with the conviction, or whether they can
“coexist” with the conviction or sentence without “calling [it] into question.”
Ballard, 444 F.3d at 400–01. Claims that challenge conditions of confinement,
but not the fact or length of the sentence, are not barred by Heck.           See
Wilkinson v. Dotson, 544 U.S. 74, 83–84 (2005) (“Heck uses the word ‘sentence’
to refer not to prison procedures, but to substantive determinations as to the
length of confinement. . . . [T]his Court has repeatedly permitted prisoners to
bring § 1983 actions challenging the conditions of their confinement.”).
      This circuit has thus far applied the Heck doctrine only to claims that
implicate criminal convictions or sentences. In Smith’s case, however, the
district court concluded that there was “no reason not to” apply Heck to the
civil commitment context, citing other courts that have done so. See Huftile v.
Vonseca, 410 F.3d 1136 (9th Cir. 2005); Henderson v. Bryant, 606 F. App’x 301,
304 (7th Cir. 2015); see also Allen v. Seiler, No. 4:12-CV-414-Y, 2013 WL
357614, at *3 n.14 (N.D. Tex. Jan. 30, 2013) (collecting cases); MARTIN A.
SCHWARTZ, SEC. 1983 LITIG. CLAIMS & DEFENSES § 10.07 (4th ed. 2017). In
Huftile, the Ninth Circuit reasoned that Heck is equally applicable to people
who are civilly committed because, as with a criminal sentence, the
appropriate avenue to challenge the validity of civil confinement is through a
habeas petition, not § 1983. Huftile, 410 F.3d at 1139–40. Because Heck’s
holding was based at least in part on “prevent[ing] a person in custody from
using § 1983 to circumvent the more stringent requirements for habeas
corpus,” the Ninth Circuit held that Heck’s reasoning therefore applies to the
civil commitment context as well. Id. at 1139.
      Though we note that the Ninth Circuit’s and other courts’ reasoning on
this issue is persuasive, whether Heck extends to civil commitments is still a
res nova question in this circuit. However, Smith’s case is an unusual one
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because the parties, including Smith, all assume that the Heck doctrine does
apply in a civil commitment case.       Smith, in a peculiar move on appeal,
concedes that Heck should bar any claim that would challenge the validity of
his underlying civil commitment. He argues only that some of his claims are
viable because they are, allegedly, conceptually distinct from the commitment
itself. As to some of these claims, however, we reject his argument that they
are, in fact, distinct. Additionally, he fails to demonstrate a denial of a federal
right with regards to other claims.
      Though Smith alleges that he has brought conceptually distinct claims,
some of his re-asserted arguments cannot, in fact, “coexist” with the existence
vel non of his commitment. For instance, his claims that the defendants
“pursued an involuntary inpatient civil commitment of Dr. Smith” and
participated in civil commitment hearings to “wrongly and unlawfully seek the
continuing vilification and incarceration of Dr. Smith” clearly challenge the
legitimacy or length of his commitment itself. Similarly, Smith’s claim that
defendants failed to conduct periodic evaluations to determine whether
continuing his commitment was justified is not distinct from the fact and
duration of that commitment.
      Smith also asserts that several other courses of conduct by defendants—
placing him in the forensic unit at the State Hospital, failing to conduct a risk
assessment, and allowing unlicensed State Hospital employees to provide
psychological treatment—give rise to temporally and conceptually distinct
§ 1983 claims. However, it is not enough that these claims may be conceptually
distinct; to plead a cognizable § 1983 claim, Smith must also allege a violation
of his federal rights. Cf. Heck, 512 U.S. at 487 (an action that “will not
demonstrate the invalidity of any outstanding criminal judgment . . . should be
allowed to proceed in the absence of some other bar to the suit.”) (emphasis
added). With regards to these claims, Smith fails to assert any coherent legal
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                                  No. 17-60122
theory, either in his briefs or in his complaint below, explaining how these
actions violated his federal rights. Accordingly, he cannot demonstrate that
the district court erred by dismissing these allegations for failure to state a
claim under § 1983. We affirm the district court’s dismissal as to all of these
claims.
      Ultimately, we conclude that Smith raises only one § 1983 claim that is
both conceptually distinct and asserts a denial of a constitutional right: his
allegation that Defendants McMichael, Chastain, and Savoie confined him
using leather and metal restraints in violation of his due process rights.
“[L]iberty from bodily restraint always has been recognized as the core of the
liberty protected by the Due Process Clause . . . . This interest survives criminal
conviction   and     incarceration.      Similarly,   it    must   also    survive
involuntary commitment.”      Youngberg v. Romeo, 457 U.S. 307, 316 (1982)
(citations omitted). Smith’s claim that those Defendants’ use of restraints
amounted to a due process violation is a challenge to the conditions of his
confinement rather than the fact of his confinement itself, and is thus
unquestionably not barred by Heck. See Wilkinson, 544 U.S. at 84. As to this
claim, the district court incorrectly concluded that “any award for damages
under the theories advanced by the plaintiff would necessarily include a
finding by this court that he is wrongfully held [at the State Hospital].”
Accordingly, we find that the district court erred by dismissing this claim.
                                       ***
      For these reasons, we AFFIRM IN PART as to the dismissal of the
majority of Smith’s claims. We VACATE and REMAND as to Smith’s due
process claim of unlawful bodily restraint against Defendants McMichael,
Chastain, and Savoie. Additionally, we VACATE the district court’s dismissal
of Smith’s pendant state law claim on this issue to permit the district court to


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choose whether to exercise supplemental jurisdiction. See generally 28 U.S.C.
§ 1367; City of Chi. v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997).




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