     Case: 11-30867       Document: 00511878203         Page: 1   Date Filed: 06/06/2012




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

                                                                             FILED
                                                                             June 6, 2012

                                        No. 11-30867                       Lyle W. Cayce
                                                                                Clerk

ROSE WALTER and SYLVESTER SHELTON

                                                     Plaintiffs-Appellants
v.

HORSESHOE ENTERTAINMENT

                                                     Defendant-Appellee



                  Appeal from the United States District Court for the
                   Western District of Louisiana, Shreveport Division
                                    No. 5:11-CV-463


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Appellants Rose Walter and Sylvester Shelton appeal the district court’s
grant of summary judgment in favor of Horseshoe Entertainment and its order
dismissing appellants’ suit, alleging that Horseshoe Entertainment violated
their constitutional rights by permitting the use of excessive force against them
and permitting their unlawful arrest. Because we find that the appellants'
claims are barred by Heck v. Humphrey1, we AFFIRM the district court's grant

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
        1
            Heck v. Humphrey, 512 U.S. 477 (1994).
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                                          No. 11-30867

of summary judgment and DENY the appellants’ motions to continue discovery
and to amend their complaint.2
                                                  I.
       This case arises from an incident taking place at the Horseshoe Casino and
Hotel in Bossier City, Louisiana. On March 12, 2004, appellants Rose Walter
(Walter) and Sylvester Shelton (Shelton) were at the casino when a member of
their group became involved in a verbal incident with another Horseshoe patron.
The assistant security supervisor, Dylan James (James), and the shift manager
Ronnie Tubbs responded to the incident.
       Some time after that incident was resolved, James received notice that the
same patrons were involved in another altercation. When James arrived at the
scene, he found Walter very upset and unable to calm down. James asked that
Walter leave the casino for 24 hours. James also called for police assistance, and
Officer Christoper Estess (Estess) of the Bossier City Police Department
responded.
       James and Estess began escorting Walter and Shelton from the premises.
Walter abruptly stopped, apparently because she heard someone call her name.
The security guard escorting Walter jerked her arm, and Walter pulled away.
This triggered an altercation between the police officer, the security guard,
Walter and Shelton. Walter and Shelton refused to proceed out of the casino,
and the officer and security guard forcibly restrained and handcuffed them.
Walter and Shelton were charged with remaining after being forbidden and
resisting arrest. Both Walter and Shelton were convicted of those offenses in
Bossier City Court.


       2
           The appellants argue in their brief that this court does not have jurisdiction over their
appeal,    asserting that the district court “improperly accepted removal” of the case. The
district   court had federal question subject matter jurisdiction over the appellants’ § 1983
claims.    The district court entered a final appealable order, and there was a timely notice of
appeal.    We therefore have jurisdiction to hear the appeal.

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                                       No. 11-30867

       Walter and Shelton filed a petition in state court in 2005 against Bossier
City, Officer Estess and the Horseshoe Casino and Hotel. That petition was
later amended to include Horseshoe Entertainment as a defendant. The state
court granted summary judgment in favor of the Officer and City. Horseshoe
Entertainment then removed the sole remaining claim, a constitutional claim
under 42 U.S.C. § 1983, to federal court. The district court granted Horseshoe's
motion for summary judgment, finding that Horseshoe was entitled to qualified
immunity. The district court also denied the plaintiffs' motion for an extension
of time to conduct discovery and motion to amend their complaint.
                                              II.
       We review a grant of summary judgment de novo, applying the same
standards as the district court. Bishop v. Acuri, 674 F.3d 456, 460 (5th Cir.
2012).
                                              III.
       To state a claim under § 1983, the appellants must establish that they
were deprived of a constitutional right, and that the alleged deprivation was
committed under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.
40, 49-50 (1999). While employees of private enterprises are not generally
considered to be state actors, a private person such as a security guard may be
considered a state actor for the purposes of § 1983 when “he is a willful
participant in joint activity with the State or its agents.” Meade v. Dillard Dept.
Stores, 275 F.3d 43 (5th Cir. 2001) (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 152 (1970)). Because we hold that the appellants’ claims are in any event
barred by the rule established in Heck v. Humphrey, 512 U.S. 477 (1994), we do
not reach the question of whether the Horseshoe security staff should be
considered state actors for the purposes of § 1983.3

       3
       The district court found that the Horseshoe security staff was entitled to qualified
immunity, which “protects government officials from liability for civil damages insofar as their

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                                       No. 11-30867

       In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held 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 . . . .” Heck at 486–87. The Heck rule was formulated in deference
to the principle that “civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments.” Id. at 486.
       The appellants allege that they were arrested unlawfully, despite having
been convicted in Bossier City Court of resisting arrest and remaining in a place
after being forbidden. In order to support a claim for unlawful arrest, a plaintiff
must show that he was arrested without probable cause. Burge v. Parish of St.
Tammany, 187 F.3d 452, 481 (5th Cir. 1999). Here, the plaintiffs were arrested
for crimes of which they were ultimately convicted. Heck therefore bars recovery
for the false arrest claim, because the conviction necessarily implies that there
was probable cause for the arrest. Sappington v. Bartee, 195 F.3d 234, 237 (5th
Cir. 1999). As we held in Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995), “[i]f


conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The law is not established in this circuit,
however, as to whether private entities such as these are entitled to the protections of
qualified immunity. While individuals who are retained by the government to perform a
particular task are entitled to qualified immunity when performing that task, it is less clear
whether a security guard working in concert with the police is entitled to the protections. See
Filarsky v. Delia, 132 S.Ct. 1657, 1661-68 (2012) (holding that an individual retained by the
government may be entitled to qualified immunity regardless of whether he is a full-time
employee); Bishop v. Karney, 408 Fed. Appx. 846, 848 (5th Cir. 2011) (holding that a private
doctor under contract with a state prison to provide medical care is entitled to qualified
immunity). Cf. Richardson v. McKnight, 521 U.S. 399, 412 (1997) (holding that prison guards
employed by a private prison are not entitled to qualified immunity).


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                                         No. 11-30867

there was probable cause for any of the charges made . . . then the arrest was
supported by probable cause, and the claim for false arrest fails.                          Thus
[plaintiff’s] proof to establish . . . false arrest, i.e., that there was no probable
cause to arrest . . . would demonstrate the invalidity of [plaintiff’s] conviction .
. . .” A § 1983 claim that would invalidate a conviction is barred by Heck.
       The Heck principle also operates to bar the appellants’ claims of excessive
force. We have held that “a successful claim of excessive force would necessarily
undermine [a] conviction for resisting arrest.” Thomas v. Louisiana State Police,
170 F.3d 184, 184 (5th Cir. 1999). A claim of excessive force that is “temporally
and conceptually distinct” from the conviction would not be barred by Heck. See
Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008). But appellants’ claims are not
derived from distinct incidents. Their convictions for resisting arrest and their
claim of use of excessive force stem from a single interaction. The appellants
argue that they did not resist arrest when asked to leave the casino, and that the
force used against them was therefore excessive. That claim can only be read as
an attack on the validity of their conviction for resisting arrest, and it is
therefore barred by Heck.4
       Appellants assert that Heck should not apply, because their convictions
have been set aside pursuant to Article 894 of the Louisiana Code of Criminal
Procedure. Article 894 gives the criminal court discretion to suspend sentencing
and set aside criminal convictions for misdemeanants. La. C. Cr. P. 894.5 The


       4
         We recognize that the predicate for Horseshoe’s liability is respondeat superior, i.e.,
its responsibility for the conduct of its employees. The law is clear that Heck operates to
protect employers sued for failure to train or supervise as well as liability for the wrongful acts
of their agents. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).
       5
           The article provides in relevant part:

                A. (1) Notwithstanding any other provision of this Article to the
                contrary, when a defendant has been convicted of a misdemeanor,
                except criminal neglect of family, or stalking, the court may

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                                     No. 11-30867

text of the article makes it clear, however, that granting relief under Article 894
does not invalidate the conviction or call into question the court’s finding of guilt.
A dismissal under Article 894 has the procedural effect of an acquittal, but the
dismissed conviction “may be considered as a first offense and provide the basis
for subsequent prosecution of the party as a multiple offender.” La. C. Cr. P.
894B(2). The Article 894 set-aside is meant as an “act of grace to one convicted
of a crime.” See State v. Gordon, 214 So. 2d 794, 796 (La. 1949) (describing a
predecessor to Article 894). It is fundamentally different in character from the
exceptions provided by Heck, each of which describes a situation where the legal
validity or factual basis of the conviction itself has been called into question.




             suspend the imposition or the execution of the whole or any part
             of the sentence imposed, provided suspension is not prohibited by
             law, and place the defendant on unsupervised probation or
             probation supervised by a probation office, agency, or officer
             designated by the court, other than the division of probation and
             parole of the Department of Public Safety and Corrections, upon
             such conditions as the court may fix. Such suspension of sentence
             and probation shall be for a period of two years or such shorter
             period as the court may specify.
             ...
             B. (1) When the imposition of sentence has been deferred by the
             court, as authorized by this Article, and the court finds at the
             conclusion of the period of deferral that the defendant has not
             been convicted of any other offense during the period of the
             deferred sentence, and that no criminal charge is pending against
             him, the court may set the conviction aside and dismiss the
             prosecution . . . .

             (2) The dismissal of the prosecution shall have the same effect as
             an acquittal, except that the conviction may be considered as a
             first offense and provide the basis for subsequent prosecution of
             the party as a multiple offender. Discharge and dismissal under
             this provision may occur only once with respect to any person
             during a five-year period . . . .

             La. C. Cr. P. 894A–B.

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                                No. 11-30867

                                      IV.
      Because we conclude that the appellants’ claims that Horseshoe staff used
excessive force against them and unlawfully arrested them are attacks on the
validity of their criminal convictions, we AFFIRM the district court’s grant of
summary judgment for the appellees.




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