     Case: 15-60512      Document: 00513485839         Page: 1    Date Filed: 04/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 15-60512                                 FILED
                                                                               April 29, 2016
                                                                              Lyle W. Cayce
JOHNNY LEE DUCKSWORTH,                                                             Clerk

              Plaintiff - Appellant

v.

ZACHARY ROOK, Officer, In his Individual and Official Capacity;
NAROTTAM HOLDEN, Officer, In his Individual and Official Capacity;
FRAZIER BOLTON, Chief, In his Individual and Official Capacity;
HATTIESBURG POLICE DEPARTMENT; CITY OF HATTIESBURG,

              Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:14-CV-146


Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Johnny Lee Ducksworth appeals the dismissal of his 42 U.S.C. § 1983
claims against several law enforcement officers, the Hattiesburg Police
Department, and the City of Hattiesburg. The district court determined that
his § 1983 claims were barred under Heck v. Humphrey, 512 U.S. 477 (1994),


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60512
because his convictions for resisting arrest and assault and battery of an officer
arose from the same event upon which his civil claims are based. For the
reasons below, we affirm.
                                        I.
      Ducksworth alleged that on November 4, 2012, in the parking lot of a
convenience store, he was assaulted by several officers of the Hattiesburg
Police Department. He claimed that an officer stopped him, grabbed him by
the neck, and shoved him against his truck. Then “about a dozen officers”
allegedly kicked, punched, and stomped on him as he lay on the ground. He
alleged that they broke his arm, hogtied him, hit him with a baton, and shot
pepper spray in his eyes. Filing suit against the officers, the Hattiesburg Police
Department, and the City of Hattiesburg, Ducksworth asserted claims under
42 U.S.C. §§ 1983, 1985(e), and 1986, as well as various state law claims.
      Defendants filed a motion to dismiss, which the district court granted in
part and denied in part. After commenting on the inartful drafting of the
complaint, the district court found that, despite its vague language,
Ducksworth’s allegations stated a plausible claim under § 1983. The district
court noted the many flaws in Ducksworth’s pleadings but allowed him to
amend “[t]o the extent the Court’s rulings are based upon mere pleading
deficiencies.” Ducksworth v. Rook, No. 2:14-CV-146, 2015 WL 737574, at *6–7
(S.D. Miss. Feb. 20, 2015) (pointing out that the complaint’s “shotgun
pleadings” came close to warranting sanctions).
      Ducksworth filed an amended complaint. Defendants then filed a second
motion to dismiss, raising many of the same arguments but also pointing to
public records that showed Ducksworth had been convicted of disorderly
conduct, assault and battery of a police officer, and resisting arrest on the date




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in question. 1 Relying on Heck, defendants argued that Ducksworth was barred
from pursuing his § 1983 claims for unlawful arrest and excessive force because
the facts underlying his claims are not separable from the facts that resulted
in his convictions. The district court agreed and granted defendants’ motion in
full. Ducksworth appealed.
                                              II.
       We review de novo the district court’s grant of a motion to dismiss. See
Johnson v. Teva Pharm. USA, Inc., 758 F.3d 605, 610 (5th Cir. 2014). “To avoid
dismissal, a plaintiff must plead sufficient facts to state a claim for relief that
is plausible on its face.” Id. We do not accept “conclusory allegations,
unwarranted factual inferences, or legal conclusions.” Ferrer v. Chevron Corp.,
484 F.3d 776, 780 (5th Cir. 2007).
                                             III.
       Ducksworth concedes his convictions but nonetheless argues that his
claims remain valid, even under Heck, because the officers continued to beat
him after he was restrained. 2 Defendants contend that Ducksworth’s § 1983
claims of excessive force and false arrest are barred under Heck because his
factual allegations are necessarily inconsistent with the validity of his
convictions.
       Under Heck, “a plaintiff who has been convicted of a crime cannot recover
damages for an alleged violation of his constitutional rights if that violation
arose from the same facts attendant to the charge for which he was convicted,



       1  In deciding a Rule 12(b)(6) motion, a court may refer to matters of public record.
Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007).
        2 Like his pleadings, Ducksworth’s brief on appeal is vague, disorganized, and

conclusory. He challenges the district court’s application of Heck but fails to offer any other
legal argument expressing or explaining how the district court committed reversible error on
his other claims. His failure to adequately brief any of the other issues on appeal constitutes
waiver of those issues. See Fed. R. App. P. 28(a)(9)(A); United States v. Beaumont, 972 F.2d
553, 563 (5th Cir. 1992).
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unless he proves that his conviction or sentence” has been in some way
reversed or invalidated. Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008)
(internal quotation marks omitted). If specific factual allegations in the
complaint are necessarily inconsistent with the validity of the conviction, then
a plaintiff’s claim is barred by Heck. Bush, 513 at 498 n.14.
      Ducksworth’s excessive-force claim was properly dismissed under Heck.
Where a complaint describes “a single violent encounter in which the plaintiff
claimed he was an innocent participant” but the allegations are inconsistent
with his conviction, Heck applies to bar his excessive-force claims. Daigre v.
City of Waveland, 549 F. App’x 283, 286 (5th Cir. 2013) (citing DeLeon v. City
of Corpus Christi, 488 F.3d 649, 656–57 (5th Cir. 2007)). Section 1983 claims
that are temporally and conceptually distinct from the excessive force claim,
however, are not barred by Heck. See Walter v. Horseshoe Entm’t, 483 F. App’x
884, 887 (5th Cir. 2012) (internal quotation marks and citations omitted). That
is because a claim that officers employed excessive force after the arrestee
stopped resisting does not necessarily imply the invalidity of a conviction for
earlier resistance. Bush, 513 F.3d at 498.
      It is undisputed that Ducksworth was convicted of disorderly conduct,
assault on a police officer, and resisting arrest as a result of the events
described. He alleges, however, that a group of police officers perpetrated an
unprovoked attack against him. His amended complaint alleges that he
“experienced cruelty and violence when he, a black man, ventured out alone at
night to go to the convenience store”; that defendants “exercise[d] . . .
unnecessary and unlawful use of force when they . . . detained him”; and that
they “illegally fabricate[d] a false claim to justify wrongfully arresting and
imprisoning [him and] detaining him.” In narrating his encounter with the
officers, Ducksworth fails to mention that he assaulted the officers and resisted
arrest. Rather, he presents his factual allegations as a “single violent
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                                 No. 15-60512
encounter” with law enforcement during which he was “an innocent
participant.” Daigre, 549 F. App’x at 286 (concluding that Heck barred
plaintiff’s excessive-force claim where he was convicted of aggravated assault
on officer but alleged he had done nothing wrong); DeLeon, 488 F.3d at 656–57
(holding excessive-force claim Heck-barred where plaintiff, convicted of
resisting arrest, alleged that she was wholly innocent); Arnold v. Town of
Slaughter, 100 F. App’x 321, 324–25 (5th Cir. 2004) (finding excessive-force
claim barred under Heck where plaintiff alleged he was attacked for no reason
despite conviction for resisting arrest). Ducksworth makes no mention of his
conduct, and offers no differentiation of his behavior before and after he was
restrained.
      Although Ducksworth argues on appeal that his claims are not barred
by Heck because the officers used excessive force after he was restrained, the
factual allegations in his complaint tell a different story. His complaint
presents a single narrative of an unprovoked police attack; his “broad claims
of innocence relate to the entire arrest encounter, and not merely a discrete
part of it.” Daigre, 549 F. App’x at 287. In short, Ducksworth’s allegations of a
wanton attack by police officers directly challenge the validity of his
subsequent convictions and thus his excessive-force claim is barred by Heck.
      Ducksworth’s claim for false arrest is similarly barred. “[I]n order to
prevail in a § 1983 claim for false arrest, a plaintiff must show that he was
arrested without probable cause in violation of the Fourth Amendment.” Parm
v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007). The Supreme Court, in Heck,
observed that § 1983 unlawful-arrest claims fail in cases where “[a] state
defendant is convicted of and sentenced for the crime of resisting arrest . . .
[because] he would have to negate an element of the offense of which he has
been convicted.” 512 U.S. at 486 n.6; see also Wells v. Bonner, 45 F.3d 90 (5th
Cir. 1995) (explaining that the plaintiff’s proof to establish his false arrest
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                                 No. 15-60512
claim would demonstrate the invalidity of his conviction for resisting a search).
Here, Ducksworth was arrested for crimes for which he was ultimately
convicted. Heck therefore bars recovery for his false arrest claim as well,
because his convictions necessarily imply that there was probable cause for his
arrest.
                                      IV.
      Because we find that the district court properly applied Heck to bar
Ducksworth’s § 1983 claims, we AFFIRM.




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