     Case: 11-60709     Document: 00512034082         Page: 1     Date Filed: 10/26/2012




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

                                                                            FILED
                                                                         October 26, 2012

                                       No. 11-60709                        Lyle W. Cayce
                                                                                Clerk

CARL LEE GREEN,
                                                  Plaintiff – Appellant
v.

CITY OF MOSS POINT, MISSISSIPPI, A Municipal Corporation; OFFICER
BARRY CLARK,

                                                  Defendants – Appellees



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


Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.
PER CURIAM:*
        Carl Lee Green led the police on a wild, 100 mile-per-hour chase
throughout the streets of Moss Point, Mississippi, located on the Gulf of Mexico.
The chase was in, around, and about the town until Green found himself facing
the Gulf of Mexico at a dead end and, then, facing a pair of police cars blocking
his only exit. Faced with tough choices, Green thought it a more sensible plan
to remove the police car from his path than to undertake an exit into the Gulf.
It may have been the better option, but bashing the car out of his way and


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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forcing himself out of the dead-end, led to a cemetery, where he was captured,
and on to state court, where he was convicted on his guilty plea of simple assault
on a law enforcement officer.
      Carl Lee Green, however, is neither contrite nor daunted, which brings us
to this appeal today. He sued the policeman, Officer Barry Clark, whose car he
intentionally bashed and, according to the admissions of his guilty plea, whose
life he put in serious danger, on the grounds of his alleged use of excessive force.
He sued the City of Moss Point as well. Because Green pleaded guilty to simple
assault on a law enforcement officer, we hold that the district court did not err
by dismissing Green’s § 1983 suit on the grounds of the Heck doctrine nor in
dismissing Green’s state law claims on the grounds that Clark was entitled to
qualified immunity under the Mississippi Tort Claims Act (MTCA).
                                         I.
      On March 19, 2008, Green was driving his Ford Bronco, with a license
plate issued to another vehicle and an expired driver’s license, in Moss Point,
Mississippi.
      Moss Point Police Officer Barry Clark observed Green’s truck facing the
wrong direction on the road. Clark radioed Officer Martin and told him to check
out the Bronco’s license plate. When Green saw Officer Martin, he fled in his
Bronco and tried to “lose” the police by taking multiple turns and driving
upwards of 100 miles per hour.
      Green took officers Martin and Clark on a high-speed chase throughout
Moss Point. During the pursuit, Green ran Martin’s vehicle off the road into a
ditch. Despite Green’s continued efforts to evade law enforcement officers, his
circuitous path eventually reached a dead end at the Gulf of Mexico; and any
further efforts to escape seemed at an end.
      Realizing that he could no longer continue forward, Green pulled his car
into the empty parking lot of a community center and made a u-turn. Officers

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Martin and Green maneuvered their cars in order to partially block the only exit
from the community center.
       Did he surrender to the police? No. Green ran his Ford Bronco into the
passenger’s-side front door of Officer Clark’s police cruiser. Green ran into the
cruiser with such force that Clark’s car’s windshield was severely cracked and
its door was dented. Officer Clark immediately exited his police cruiser, drew
his weapon, and fired multiple shots into Green’s truck’s windshield. After the
shooting began, Green drove toward Officer Clark again. In response, Clark
continued to fire gunshots into Green’s windshield. Green was hit by bullets in
the shoulder and the arm, and he was possibly grazed by another bullet.
       Still, Green continued to drive the truck through the community center’s
exit. The pursuit continued for several more miles, but Green’s speed and
maneuverability decreased because of a blown-out tire. The chase ended in a
cemetery, where Officer Martin placed Green in handcuffs. As a result of his
misadventure, Green required hospitalization and several surgeries.
                                               II.
       On August 21, 2009, Green filed suit against the City of Moss Point and
Officer Clark in the United States District Court for the Southern District of
Mississippi under 42 U.S.C. § 1983 and the Mississippi Tort Claims Act.1
       On January 15, 2010, Officer Clark moved for partial summary judgment,
arguing that he, in his individual capacity, and the City were entitled to
qualified immunity under both Mississippi and federal law. The district court
granted in part and denied in part Clark’s motion. The court held that genuine
issues of material fact remained relative to Green’s excessive force claim. Thus,



       1
         The complaint articulated four § 1983 causes of action: (1) deprivation of civil rights;
(2) failure of Moss Point to adequately train and supervise officers; (3) negligent hiring,
retention, and discipline; and (4) excessive force. Green only appeals the dismissal of his §
1983 claim for excessive force.

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the district court did not grant summary judgment on this ground. In the same
order, the district court granted summary judgment dismissing Green’s state
law tort claims for battery, assault, and intentional infliction of emotional
distress. The district court held that Clark was entitled to qualified immunity
under the MTCA, because Clark was acting within the scope of his duty and
because Green was engaged in criminal activity at the time of the shooting.
      While Green’s civil suit was pending in federal court, criminal charges
arising from the incident were also pending against Green in Mississippi state
court. Green had been indicted on August 15, 2008 by a Jackson County grand
jury for aggravated assault on a law enforcement officer; Green had pleaded “not
guilty” to this charge. On August 2, 2011, however, Green pleaded guilty to
simple assault on a law effacement officer. Through the course of pleading
guilty, Green admitted to “attempt[ing] to cause bodily injury to Barry Clark by
striking a vehicle occupied by Barry Clark with Lee Carl Green’s vehicle.”
      After Green pled guilty to simple assault on a law enforcement officer,
Clark filed another motion for summary judgment. The district court granted
the defendants’ motion for summary judgment, holding that Green’s excessive
force claims are barred by the Heck doctrine. The district court also denied
reconsideration of the dismissal of Green’s state law claims. Thus, the entirety
of Green’s complaint was dismissed with prejudice.
      Green now appeals, arguing that the district court erred both by applying
the Heck doctrine to bar Green’s excessive force claim and by holding that Clark
was acting within the scope of his employment to bar Green’s state law causes
of action.
                                      III.
      First, we will consider whether the district court erred by dismissing
Green’s § 1983 claim for excessive force against Clark on the basis of the Heck
doctrine.

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       In Heck v. Humphrey, 512 U.S. 477, 486 (1994), the Supreme Court held
that “the hoary principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments applies to § 1983
damages actions that necessarily require the plaintiff to prove the unlawfulness
of his conviction or confinement.” In other words, a “plaintiff who has been
convicted of a crime cannot recover damages for an alleged violation of his
constitutional rights if the alleged violation arose from the same facts attendant
to the charge for which he was convicted,” unless the plaintiff can prove that this
conviction has already been invalidated. Ballard v. Burton, 444 F.3d 391, 396
(5th Cir. 2006) (citing Heck, 512 U.S. at 486-87); see also Sappington v. Bartee,
195 F.3d 234, 235 (5th Cir. 1999). Thus, in order to determine whether Heck
precludes Green’s § 1983 claim against Officer Clark for excessive force, we must
determine whether a judgment in Green’s favor would necessarily undermine his
conviction for simple assault on a law enforcement officer. See Jackson v.
Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).
       Green pleaded guilty to simple assault of a law enforcement officer in
Mississippi state court for violating section 97–3–7 of the Mississippi Code. This
section provides, in pertinent part:
       A person is guilty of simple assault if he (a) attempts to cause or
       purposely, knowingly or recklessly causes bodily injury to another;
       or . . . (c) attempts by physical menace to put another in fear of
       imminent serious bodily harm . . . . However, a person convicted of
       simple assault [upon a law enforcement officer while the law
       enforcement officer is acting within the scope of his employment] .
       . . shall be [imprisoned] for not more than five (5) years . . . .2

       2
        The facts to which Green pled guilty support a conviction under both subpart (a) and
subpart (c) of section 97–3–7 of the Mississippi Code. See United States v. Still, 102 F.3d 118,
124 (5th Cir. 1996) (“A disjunctive statute may be pleaded conjunctively and proven
disjunctively.”); Lenoir v. State, 115 So. 2d 731, 732 (Miss. 1959) (“It is a general rule that
where a statute denounces as an offense two or more distinctive acts, things, or transactions
enumerated therein in the disjunctive, the whole may be charged conjunctively and the
defendant found guilty of either one.”); Martin v. State, 818 So. 2d 380, 382 (Miss. Ct. App.

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Miss. Code Ann. § 97–3–7.3 The facts to which Green pleaded guilty are as
follows:
         [Green] attempted to cause bodily injury to Barry Clark by striking
         a vehicle occupied by Barry Clark with Lee Carl Green’s vehicle . .
         . [a]nd attempt[ed] to strike the person of Barry Clark with his
         vehicle. . . . [A]t that time Barry Clark was an officer employed by
         the Moss Point Police Department and [was] acting in the scope of
         his duty.

         To succeed on a § 1983 claim for excessive force, Green must prove that he
“suffered (1) an injury that (2) resulted directly and only from the use of force
that was excessive to the need and that (3) the force used was objectively
unreasonable.” Flores v. City of Palacios, 381 F.3d 391, 396 (5th Cir. 2004)
(citations omitted); Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir.
2000). Furthermore, “ [u]se of deadly force is not unreasonable when an officer
would have reason to believe that the suspect poses a threat of serious harm to
the officer or others.” Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003)
(citing Tennessee v. Garner, 471 U.S. 1 (1985). Ultimately, Green’s suit is barred
by the Heck doctrine if proving that Clark’s use of force was objectively
unreasonable would necessarily call into question the validity of Green’s
conviction for simple assault on a law enforcement officer. See Ballard, 444 F.3d
at 398.
         Viewing the facts, the law, the plea, and the conviction, Green cannot
prove his excessive force claim without calling into question his criminal

2002).
         3
          Green argues that he did not plead guilty to simple assault on a law enforcement
officer and, instead, pleaded guilty to a generic, simple assault charge. In his petition to plead
guilty, Green stated “I, L. Carl Green, do hereby petition this honorable court to accept my
plea of guilty to the crime(s) of SAOLEO [‘simple assault on a law enforcement officer.’]” Thus,
there is no merit to this argument; Green undoubtedly pled guilty to a charge of simple assault
on a law enforcement officer.

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conviction. Green assaulted Clark with a truck before Clark started shooting at
him; then, mere seconds later, Green assaulted Clark again by driving his truck
toward Clark to run him over. Green himself summarized the events by saying
“[i]t all happened so fast.” Furthermore, Green’s conviction for simple assault
on a law enforcement officer necessarily implies that Clark did not use excessive
force by shooting at Green under circumstances Green admitted in his guilty
plea. See Sappington, 195 F.3d at 237; see also Hainze v. Richards, 207 F.3d
795, 798-99 (5th Cir. 2000). As noted above, Green’s conviction required proof
that Green “attempt[ed] to cause or purposely, knowingly or recklessly cause[d]
bodily injury” or “put another in fear of imminent serious bodily harm.” Miss.
Code Ann. § 97–3–7. We further note that excessive force is not unreasonable
“when an officer would have reason to believe that the suspect poses a threat of
serious harm to the officer or others.” Mace, 333 F.3d at 624 (citing Garner, 471
U.S. at 1). Moreover, under Mississippi law, any person can use deadly force
“where there shall be reasonable ground to apprehend a design to commit a
felony or to do some great personal injury, and there shall be imminent danger
of such design being accomplished,” Miss. Code Ann. § 97–3–15(1)(f). Because
Green’s criminal conviction was premised upon his attempting to cause, or
putting another in fear of, serious bodily injury, Clark acted reasonably under
the circumstances, regardless of whether we consider Mississippi or federal law.
Green cannot prove otherwise without negating his conviction for simple assault
on a law enforcement officer. In short, Green’s claim is exactly the sort of claim
the Heck doctrine was established to prevent.
                                       IV.
      Next, we are obliged to address Green’s argument that the district court
erred by dismissing his state law causes of action under the Mississippi Tort
Claims Act against Clark in his individual capacity. According to Green, Clark
was acting with malice at the time of the shooting and was consequently acting

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outside of the scope of his duty as a police officer, stripping Clark of his qualified
immunity and entitling Green to relief on his state law claims.
      The MTCA provides the exclusive remedy for tort actions brought against
a governmental entity or its employees. Miss. Code Ann. § 11-46-7(1). A
governmental employee who commits a tort with malicious intent, or a tortious
offense constituting a criminal offense other than a traffic violation, may be held
personally liable for that act, and the governmental entity employing him or her
is absolved of liability.4 Miss. Code Ann. § 11-46-5(2).
      Green did not raise this malicious intent argument in the district court
until he filed a motion for reconsideration of the dismissal of his state law
claims. In fact, in his response to Clark’s first motion for summary judgment,
Green conceded that Clark was acting in his official capacity at the time of the
shooting. Only in rare circumstances, not present here, do we consider an issue
raised for the first time in a motion for reconsideration. See Browning v.
Navarro, 894 F.2d 99, 100 (5th Cir.1990). Thus, because Green does not explain
why he did not raise this argument before the district court until his motion for
reconsideration, he has clearly forfeited this argument.
      Even if, however, Green had not forfeited this argument, he would still not
be entitled to relief. Outside of the shooting itself, Green offers no proof that
Clark acted maliciously. Moreover, the doctrine of collateral estoppel – the
principle that a criminal conviction is conclusive as to an issue arising against


      4
             [B]ut no employee shall be held personally liable for acts or
             omissions occurring within the course and scope of the employee’s
             duties. . . . [A]n employee shall not be considered as acting within
             the course and scope of his employment and a governmental
             entity shall not be liable or be considered to have waived
             immunity for any conduct of its employee if the employee’s
             conduct constituted fraud, malice, libel . . . .

Miss Code Ann. § 11-46-7(2).


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the criminal defendant in a subsequent civil action – would barr Green from
proving that Clark acted unreasonably, let alone maliciously, under the
circumstances. See Tomlinson v. Lefkowitz, 334 F.2d 262, 264 (5th Cir. 1964).
      In sum, Green’s argument that the district court erred by dismissing his
MTCA claims is without merit.
                                      V.
      In conclusion, because Green’s § 1983 claim against Clark for excessive
force is barred by the Heck doctrine and because Clark was entitled to qualified
immunity from Green’s state law claims, the judgment of the district court is
                                                                   AFFIRMED.




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