McIntosh v. Goings

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAMES McINTOSH CIVIL ACTION

VERSUS No. 21-1719

ROBERT GOINGS, ET AL. SECTION I

ORDER & REASONS

The plaintiff, James McIntosh (“McIntosh”), an inmate at Rayburn

Correctional Center (“RCC”) in Angie, Louisiana, filed a complaint1 for damages,

alleging constitutional violations pursuant to 42 U.S.C. § 1983, as well as state law

tort claims. The defendants have filed a motion2 for summary judgment, arguing

that Heck v. Humphrey, 512 U.S. 477 (1994), bars McIntosh’s claims.3 Alternatively,

they argue that the defendants are entitled to qualified immunity.4 The Court

concludes that Heck bars McIntosh’s claims for the reasons stated below.

I. BACKGROUND

“This case involves an all-too-common set of facts: [plaintiff] (a prisoner) claims

that [defendants] (prison officers) spontaneously and unlawfully abused him.

[Defendants], on the other hand, insist they used lawful force to control [plaintiff’s]

misbehavior.” Santos v. White, 18 F.4th 472, 477 (5th Cir. 2021) (Willett, J.,

concurring). McIntosh asserts that the defendants harmed him during two incidents

1 R. Doc. No. 19 (“Amended Complaint for Damages/Use of Force”).

2 R. Doc. No. 43.

3 R. Doc. No. 43-1, at 17.

4 Id. at 23.

at RCC in 2020. The defendants are RCC officers, namely: Robert Goings (“Goings”),

Jonathan Stringer (“Stringer”), Jacob Waskom (“Waskom”), and Mickey Dillon

(“Dillon”).5

A. McIntosh’s Version of Events

1. The Wind Unit Incident

According to McIntosh, he regularly would steal and then sell extra food from

the RCC kitchen.6 McIntosh claims that Goings and Stringer pressured McIntosh to

5 R. Doc. No. 19, at 2–3. McIntosh asserts his § 1983 claim against Goings, Stringer,

Waskom, and Dillon. Id. at 9. McIntosh also named the State of Louisiana, through

the Louisiana Department of Public Safety and Corrections, as a defendant. Id. at 3.

McIntosh alleges liability under a state law negligence theory and respondeat

superior with respect to the State of Louisiana. Id. at 9 ¶¶ 46–48.

6 In accordance with Local Rule 56.2, McIntosh filed a statement of facts in opposition

to defendants’ motion for summary judgment. See R. Doc. No. 54. However, McIntosh

largely denies defendants’ assertions of fact without referencing specific evidence to

support his denials. Id. at 1–3. In his memorandum opposing summary judgment,

McIntosh cites repeatedly to “Ex 1 and Petition,” in support of his version of events.

See, e.g., R. Doc. No. 49, at 9 (“Furthermore, McIntosh stated that Goings was

involved in some illegal activities at RCC and he was being retaliated against for not

falling in line. Ex 1 and Petition, ¶¶ 8-21.”). McIntosh’s Exhibit 1, see R. Doc. No.

49-1, contains on the first page a declaration asserting that “the facts found in my

ARP, Petition, Appeal from the Disciplinary Board to the Secretary of the

Department of Corrections and Appeal filed in the 19th JDC East Baton Rouge are

true and correct under penalty of perjury.” Id. at 1.

Although McIntosh is presently incarcerated, he has retained counsel to represent

him. See, e.g., R. Doc. No. 49, at 20. Therefore, the Court will not liberally construe

McIntosh’s pleadings as it would do so for a pro se plaintiff. See, e.g., Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by lawyers[.]”) (internal quotation marks

and citations omitted). Nevertheless, the Court interprets “Ex 1 and Petition, ¶¶ 8-

21” as an indication that McIntosh has verified his “Amended Complaint for

Damages/Use of Force,” see R. Doc. No. 19, as this is the most recent version of his

“petition” in the record. Cf. R. Doc. No. 1-1 (“Petition for Damages/Use of Force,”

which the defendants removed from state court).

become a prison informant in exchange for avoiding discipline for stealing food, but

McIntosh denied knowing any useful information.7 McIntosh also alleges that Goings

and Stringer intended to harm McIntosh as retaliation for trouble that resulted from

other officers discovering that McIntosh was selling stolen food.8

Regarding the events on October 19, 2020, McIntosh recounts that around 7:00

A.M., Stringer ordered McIntosh to exit the Wind Unit facility and to proceed to the

Wind Unit breezeway.9 McIntosh claims that officers assault inmates on the

breezeways because there are no video cameras in that area.10 Goings and Stringer

approached McIntosh, and Stringer ordered McIntosh to turn around to be

restrained.11 McIntosh asked, “[a]re y’all going to F#@! me over?” and Stringer

responded, “yes.”12

McIntosh dropped his cup of coffee, and he tried to run into an area in view of

a video camera.13 Stringer grabbed McIntosh, causing him to fall to the concrete floor

where he struck his head and became dazed.14 Goings and Stringer then punched

McIntosh and slammed him to the floor.15 McIntosh sustained two blows to the back

of his head and two blows to the left side of his face.16 Stringer, Going—and then

7 R. Doc. No. 19, at 3–4 ¶¶ 9–11.

8 Id. at 4–6 ¶¶ 12–22.

9 Id. at 6, ¶ 23.

10 Id. at 6 ¶¶ 24–25.

11 Id. at 6 ¶ 26.

12 Id.

13 Id. at 6 ¶ 27.

14 Id. at 6–7 ¶¶ 27–28.

15 Id. at 6–7 ¶¶ 28–29.

16 Id. at 7 ¶ 29.

Waskom—struck McIntosh with their knees and punched him in his face.17 McIntosh

was then placed in full restraints.18

2. The Sun Unit Incident

While in restraints, Waskom and Dillon then escorted McIntosh to the Sun

Unit.19 Waskom and Dillon proceeded to beat McIntosh, and they slammed

McIntosh’s head into a Sun Unit door three to four times.20 Waskom also struck

McIntosh with his knee, and he punched McIntosh.21 According to McIntosh, he

suffered a lost tooth, a split tongue, a concussion, and his back, neck, knee, and ankles

were cut and/or bruised.22

B. Defendants’ Version of Events

1. Wind Unit Incident

According to defendants, on October 19, 2020, at approximately 7:05 A.M.,

Stringer was making unannounced rounds in Wind 1 dormitory.23 While Stringer

was making his rounds, McIntosh looked at Stringer and said, “[w]hat the [f]uck are

you looking at?”24 Stringer verbally ordered McIntosh to stop cursing, and McIntosh

17 Id. McIntosh does not state when Waskom arrived at the scene. Id.

18 Id. at 7 ¶ 30.

19 Id. at 7 ¶ 31.

20 Id. at 7 ¶ 32–33.

21 Id. at 7 ¶ 32.

22 Id. at 7 ¶ 34.

23 R. Doc. No. 43-8, at 2; see also R. Doc. No. 43-2, at 1–3; R. Doc. No. 43-4, at 1–3.

24 R. Doc. No. 43-8, at 2.

complied.25 McIntosh then continued to aggressively question Stringer, and Stringer

ordered McIntosh to exit the dormitory.26

McIntosh exited the dormitory onto the breezeway, and Stringer ordered

McIntosh to stop.27 McIntosh complied, but stated, “[w]hat the [f]uck you want?”28

Stringer ordered McIntosh to place his cup of coffee on the ground, turn around, and

place his hands behind his back.29 McIntosh refused and stated, “[you’re] not fucking

touching me.”30 Stringer again ordered McIntosh to turn around and place his hands

behind his back.31 McIntosh again refused and stated, “[y]ou better not fucking touch

me.”32

Stringer then placed his right hand on McIntosh’s right wrist, and McIntosh

jerked his hand from Stringer’s grasp.33 McIntosh then threw his coffee towards

Goings, striking Goings in the chest and face.34 McIntosh then attempted to run past

Stringer, and Stringer tried to “secure [McIntosh’s] upper torso.”35 Meanwhile,

Goings called via radio for assistance.36 McIntosh then began to strike Stringer and

Goings in the head with his closed fists.37

25 Id.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id. Stringer does not state when Goings arrived on the scene. Id.

35 Id.

36 Id.

37 Id.

Waskom heard Going’s radio call, and Waskom arrived to witness Stringer and

Goings trying to “direct” McIntosh to the ground, while verbally ordering McIntosh

to stop resisting.38 McIntosh refused, and Waskom approached and grasped

McIntosh’s upper torso.39 Stringer, Goings, and Waskom succeeded in bringing

McIntosh to the ground, and McIntosh continued to aggressively kick his legs.40

Waskom began pulling McIntosh’s left arm from under McIntosh’s body, and Going

assisted by grabbing McIntosh’s left wrist.41

McIntosh next began biting Goings’ left arm, and Waskom “delivered a palm

heel strike to [McIntosh’s] right brachial nerve motor point,” while commanding

McIntosh to stop biting Goings.42 Goings succeeded in removing his arm from

McIntosh’s mouth, and Stringer and Waskom were able to place McIntosh’s hands

behind his back.43 Waskom applied handcuffs while another officer applied shackles

to McIntosh’s feet.44 Once defendants placed the restraints on McIntosh, they ceased

using any force.45

2. Sun Unit Incident

Once McIntosh was restrained in the Wind Unit, Waskom and Dillon escorted

McIntosh to the Sun Unit area of RCC.46 At Sun Walk, McIntosh began cursing the

38 Id. See also id. at 5.

39 Id. at 5.

40 Id. at 2.

41 Id. See also id. at 5.

42 Id. at 5.

43 Id. at 5.

44 Id. at 2.

45 Id.

46 Id. at 5. See also R. Doc. No. 43-3, at 2–4; R. Doc. No. 43-5, at 1–2.

officers.47 McIntosh also began to drag his feet.48 Waskom commanded McIntosh to

stop talking and walk.49 McIntosh then walked a short distance before dragging his

feet again.50

When the group approached the front door of Sun Unit, McIntosh attempted

to kneel and raise his feet off the ground.51 Waskom loudly ordered McIntosh to stand

up, and McIntosh refused, stating “[m]an[,] [f]uck [y]ou.”52 Waskom again ordered

McIntosh to stand, and McIntosh complied, placing his feet back on the ground.53

The group entered Sun Unit and approached the Sun Key door.54 Waskom

ordered McIntosh to kneel, and McIntosh responded, “[f]uck that. I’m standing now

bitch.”55 Waskom ordered McIntosh several times to kneel, and McIntosh refused to

comply.56 Waskom then “delivered a knee strike to [McIntosh’s] left common peroneal

nerve,” and again ordered McIntosh to kneel.57 McIntosh reluctantly complied.58

Once McIntosh was on his knees, Waskom “released control of him and all use of force

ceased.”59

47 R. Doc. No. 43-8, at 5.

48 Id.

49 Id.

50 Id.

51 Id.

52 Id.

53 Id.

54 Id.

55 Id.

56 Id.

57 Id.

58 Id.

59 Id.

C. The RCC Disciplinary Hearings

Following these incidents, the RCC Disciplinary Board (“the Board”) held

hearings on October 21 and October 28, 2020.60 The Board documented these

hearings in two disciplinary report forms.61

The first report form includes a signed narrative written by Stringer, detailing

his version of the events that occurred in the Wind Unit.62 The Board noted that

McIntosh pleaded not guilty to allegations that he violated RCC Rule 3 (“defiance”)63

and Rule 5 (“aggravated disobedience”),64 but that the Board found him guilty.65

Under the section labeled “reasons for disposition,” the Board marked that the

officer’s report is clear and precise, the officer’s version is determined to be more

credible than the inmate’s version, and that the only defense was a denial of the

60 Id. at 2, 5.

61 Id.

62 Id. at 2.

63 Under the Louisiana Department of Public Safety and Corrections’ Disciplinary

Rules, Rule 3 provides that “[n]o offender shall commit or threaten physically or

verbally to commit bodily harm upon another person.” R. Doc. No. 43-8, at 26. Also,

“[n]o offender shall curse, insult or threaten another person in any manner. […]

Further, no offender shall obstruct, resist, distract or attempt to elude staff in the

performance of their duties. Nor shall an offender intimidate or attempt to intimidate

staff to manipulate staff’s actions.” Id.

64 Rule 5 provides that “[o]ffenders must obey direct verbal orders cooperatively and

promptly and not debate, argue or ignore orders before obeying. The last order

received must be obeyed when orders conflict. Even orders the offender believes

improper must be obeyed; grievances must be pursued through proper channels.” Id.

65 Id. at 2.

contents of the report.66 The form further states that with respect to the Rule 5

violation, the Board imposed a loss of 60 days good time credit.67

The second report form includes a signed narrative written by Waskom,

detailing his version of the events that occurred in the Wind Unit and the Sun Unit.68

The form indicates that McIntosh pleaded not guilty to allegations that he violated

RCC Rules 3 and 5 for defiance and aggravated disobedience, but that the Board

found him guilty. Under the section labeled “reasons for disposition,” the Board again

marked that the officer’s report is clear and precise, the officer’s version is determined

to be more credible than the inmate’s version, and that the only defense was a denial

of the contents of the report.69 The form further states that with respect to the Rule

3 violation, the Board imposed a loss of 60 days good time credit and a loss of 15 days

good time credit with respect to the Rule 5 violation.70

McIntosh filed a petition for judicial review in the Nineteenth Judicial District

Court for the Parish of East Baton Rouge to contest his disciplinary decisions.71

McIntosh did not point to evidence that the disciplinary decisions have been

overturned or otherwise terminated in his favor.72

66 R. Doc. No. 43-8, at 2.

67 Id. at 3; R. Doc. No. 54, at 2 (admitting that the Board imposed a loss of 60 days of

good time credit for the Rule 5 violation).

68 R. Doc. No. 43-8. at 5.

69 R. Doc. No. 43-8, at 2.

70 Id. at 3; R. Doc. No. 49, at 11 (noting that the second report indicates a loss of 15

days good time for the Rule 5 violation).

71 R. Doc. Nos. 43-10, 43-11, & 54, at 2 ¶ 6 (“Plaintiff appealed all of the disciplinary

violations”).

72 R. Doc. No. 49, at 12.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when, after reviewing the pleadings, the

discovery and disclosure materials on file, and any affidavits, a court determines that

there is no genuine dispute of material fact and the movant is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(a). “[A] party seeking summary judgment

always bears the initial responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). The party seeking summary judgment need not produce

evidence negating the existence of a material fact; it need only point out the absence

of evidence supporting the other party’s case. Id.; see also Fontenot v. Upjohn Co.,

780 F.2d 1190, 1195–96 (5th Cir. 1986) (“There is no sound reason why conclusory

allegations should suffice to require a trial when there is no evidence to support them

even if the movant lacks contrary evidence.”).

Once the party seeking summary judgment carries that burden, the

nonmoving party must come forward with specific facts showing that there is a

genuine dispute of material fact for trial. See Matsushita Elec. Indus. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). The showing of a genuine issue is not satisfied by

creating “‘some metaphysical doubt as to the material facts,’ by ‘conclusory

allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Little

v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Rather, a

genuine issue of material fact exists when the “evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

“Although the substance or content of the evidence submitted to support or

dispute a fact on summary judgment must be admissible . . . the material may be

presented in a form that would not, in itself, be admissible at trial.” Lee v. Offshore

Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted).

The party responding to the motion for summary judgment may not rest upon the

pleadings but must identify specific facts that establish a genuine issue. See

Anderson, 477 U.S. at 248. The nonmoving party’s evidence, however, “is to be

believed, and all justifiable inferences are to be drawn in [the nonmoving party’s]

favor.” Id. at 255.

III. LAW & ANALYSIS

A. McIntosh’s § 1983 Claim

The defendants first argue that they are entitled to summary judgment

pursuant to Heck.73 Heck bars the litigation of a § 1983 claim if success on that claim

“would necessarily imply that a prior conviction or sentence is invalid.” Aucoin v.

Cupil, 958 F.3d 379, 382 (5th Cir. 2020) (citing Heck, 512 U.S. at 486–87). The

rationale is that “civil tort actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments[.]” Heck, 512 U.S. at 485–86. “[C]ourts

are wary of duplicative litigation and the potential for conflicting judgments.”

Aucoin, 958 F.3d at 382.

73 R. Doc. No. 32-3, at 9–23.

However, where the “‘plaintiff’s action, even if successful, will not demonstrate

the invalidity of any outstanding criminal judgment against the plaintiff,’ the claim

implicates none of these concerns and may therefore proceed.” Id. (quoting Heck, 512

U.S. at 487). “Determining whether the § 1983 claim challenges the conviction is

‘fact-intensive.’” Id. (quoting Bush v. Strain, 513 F.3d 492, 497 (5th Cir. 2008)). A

hallmark of a non-Heck-barred claim is “if the factual basis for the conviction is

temporally and conceptually distinct” from the civil claim. Bush, 513 F.3d at 498.

But the Heck bar extends further: even where the plaintiff’s “factual

allegations supporting the claim are necessarily inconsistent with the validity of the

conviction,” Heck still bars the claim. Aucoin, 958 F.3d at 383 (citing Bush, 513 F.3d

at 497; DeLeon v. City of Corpus Christi, 488 F.3d 649, 656–57 (5th Cir. 2007)). That

is true regardless of a civil claim’s “theoretical compatibility” with the criminal

conviction. Daigre v. City of Waveland, 549 F. App’x 283, 286 (5th Cir. 2013) (quoting

Bush, 513 F.3d at 498 n.14); see also Thomas v. Pohlmann, 681 F. App’x 401, 407 (5th

Cir. 2017) (citing with approval Daigre and DeLeon).

To overcome the Heck bar, the plaintiff must show that the prior criminal

proceeding terminated in his favor—i.e., “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, 512 U.S. at 487. The plaintiff has the burden to prove that the

criminal proceedings terminated in his favor. Hoog-Watson v. Guadalupe Cnty., 591

F.3d 431, 435 (5th Cir. 2009). Absent such a showing, a Heck-barred claim should be

“dismissed with prejudice to [its] being asserted again until the Heck conditions are

met.” DeLeon, 488 F.3d at 657 (quoting Johnson v. McElveen, 101 F.3d 423, 424 (5th

Cir.1996)).

1. Proper Evidence to Consider on Summary Judgment

McIntosh puts forward several arguments in opposing summary judgment.

First, as a threshold issue, he disputes which evidence the Court may consider to

decide the defendants’ motion. McIntosh maintains that the Court should not

consider the Board’s disciplinary reports because those reports are inadmissible

“hearsay and inherently unreliable.”74 The defendants reply that they offer the

Board’s reports not “as truth for the matters asserted therein, but rather, as the basis

for which Plaintiff was found guilty of disciplinary violations which resulted in a loss

of good time credits.”75

A statement is hearsay if it is not made while testifying and a party “offer[s it]

in evidence to prove the truth of the matter asserted in the statement. Fed. R. Evid.

801(c). “The reports submitted by the defendants were offered to demonstrate that

the disciplinary board had found [McIntosh] guilty of various offenses, not to prove

the truth of the matter, that is, that he actually had committed the offenses.” Santos

v. White, 18 F.4th 472, 477 (5th Cir. 2021). “As with criminal convictions, the Heck

bar does not, in theory, assume that the prison disciplinary board’s determinations

were true, but only that they cannot be challenged through § 1983.” Id. See also

74 R. Doc. No. 49, at 18.

75 R. Doc. No. 577, at 2.

Aucoin v. Cupil, 958 F.3d 379, 381 (5th Cir. 2020) (holding that courts “may also

examine the prison disciplinary reports to understand the basis of the underlying

conviction.”). The Court may therefore consider the Board’s disciplinary decisions

when it considers whether McIntosh’s claims are Heck-barred.76

2. Heck Applies to McIntosh’s RCC Disciplinary Proceedings

Next, McIntosh argues that Heck does not apply to prison disciplinary

proceedings.77 “Contrary to [McIntosh’s] repeated protestations, because Heck

applies to both the validity and the duration of the confinement, ‘Heck’s principle

extends to [prison] disciplinary convictions’ in addition to criminal convictions.” Gray

v. White, 18 F.4th 463, 467 (5th Cir. 2021) (quoting Bourne v. Gunnels, 921 F.3d 484,

490 (5th Cir. 2019)). “[F]or purposes of Heck,” a “‘conviction’ ... includes a ruling in a

prison disciplinary proceeding that results in a change to the prisoner’s sentence,

76 McIntosh has also filed a motion for an adverse inference based on a claim that

RCC video footage was spoliated. See R. Doc. No. 36. McIntosh references this

argument to oppose summary judgment, but he does not specifically state that it has

any bearing on whether his claims are Heck-barred. See R. Doc. No. 49, at 8–9.

Overall, this argument is unavailing. Even if the Court were to grant the spoliation

motion, the remedy that McIntosh seeks is an adverse inference. See R. Doc. No. 36-

3, at 14. Such an inference would not help McIntosh withstand summary judgment.

First, even with such an inference, the Court’s resolution of the Heck bar issue,

discussed below, would not be altered since McIntosh’s “factual allegations

supporting [his] claim are necessarily inconsistent with the validity of [his]

conviction[s].” Aucoin, 958 F.3d at 383. Second, even with an adverse inference,

McIntosh has still not “produced evidence that the alleged excessive force occurred

after [he] stopped resisting[.]” Bush, 513 F.3d at 500. See also Likens v. Hartford

Life & Accident Ins. Co., 688 F.3d 197, 202 (5th Cir. 2012) (“Although all justifiable

inference[s] must be drawn in favor of the non-movant, the non-movant still cannot

defeat summary judgment with speculation, improbable inferences, or

unsubstantiated assertions.” (citations omitted)).

77 R. Doc. No. 49, at 13–20.

including the loss of good-time credits.” Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir.

1998) (en banc). Therefore, Heck precludes § 1983 litigation in the prison-disciplinary-

proceeding context where it would “negate [the prisoner’s] disciplinary conviction” if

negating that conviction would “affect[ ] the duration of his sentence by restoring his

good time credits.” Bourne, 921 F.3d at 491. Whether the plaintiff in fact seeks the

restoration of good time credits, rather than another remedy such as damages, is

immaterial. Aucoin v. Cupil, 958 F.3d 379, 383 (5th Cir. 2020).

The RCC disciplinary records demonstrate that McIntosh lost good time credit

as a result of the incidents in the Wind Unit and the Sun Unit.78 And McIntosh has

not met his burden to demonstrate that these disciplinary decisions have been

overturned or terminated in his favor.79 Therefore, the Board’s adverse disciplinary

decisions affect the duration of McIntosh’s sentence by reducing his good time credit,

and Heck applies.

3. Heck Bars McIntosh’s § 1983 Claim

In opposition to summary judgment, with respect to the first incident in the

Wind Unit concerning Stringer and Goings, McIntosh maintains that the officers

used force against him which was unprompted.80 According to McIntosh, Stringer

78 R. Doc. No. 54, at 2 (McIntosh’s response statement of facts) (admitting that the

Board “imposed a sentence of loss of 60 days of good time for the Rule 5 violation”

concerning the Wind Unit). R. Doc. No. 43-8, at 6 (noting a “[l]oss of 60 days GT” for

the Rule 3 violation and a loss of 15 days good time for the Rule 5 violation).

79 R. Doc. No. 49, at 12.

80 R. Doc. No. 19, at 6 ¶ 23–24 (stating that McIntosh was merely walking with a cup

of coffee when Stringer ordered McIntosh outside and that McIntosh was “fearful but

obeyed the order”).

informed him that the officers were going to beat him, and then the officers punched

McIntosh and slammed his head into the concrete floor.81 McIntosh’s factual

assertions essentially allege that he did nothing wrong. In other words, McIntosh

maintains “his innocence in the events that led up to his disciplinary conviction[s].”

Aucoin, 958 F.3d at 383. He insists “that he is wholly blameless for the use of force

against him [in the Wind Unit].” Id. But if true, McIntosh “cannot be guilty of [the

offenses for which he lost good-time credit]—in direct conflict with his disciplinary

conviction[s].” Id. This is especially the case when the Board expressly found that

Stringer’s account was “clear and precise” and “more credible than [McIntosh’s].”82

Therefore, McIntosh’s § 1983 claim concerning the incidents in the Wind Unit is

barred by Heck.

With respect to the second incident with Waskom and Dillon, McIntosh insists

that he was “in full restraints while being escorted/dragged to the [Sun Unit]”83 and

during that time “everyone agrees he was not resisting.”84 “Put simply, there is no

Heck bar if the alleged violation occurs ‘after’ the cessation of the plaintiff’s

misconduct that gave rise to his prior conviction.” Aucoin, 958 F.3d at 382. See also

Bourne, 921 F.3d at 491 (reversing a grant of summary judgment when “the § 1983

excessive-force claims arise from the specific force defendants used after [the

81 Id. at 6–7, ¶¶ 25–29.

82 R. Doc. No. 43-8, at 2.

83 R. Doc. No. 49, at 10.

84 Id. at 6; see also id. at 10 (citing to McIntosh’s “Petition,” at ¶¶ 28–33).

plaintiff] was restrained on his cell floor.”). However, McIntosh’s argument

misrepresents two key points in the record.

First, McIntosh cites to his complaint in support of the contention that he was

“in full restraints and not resisting.”85 But McIntosh’s complaint is silent with

respect to his own behavior once he was placed in restraints.86 The complaint does

not affirmatively state that McIntosh was compliant or cooperative.87 And McIntosh

points to no evidence in support of the contention that he was not resisting.88

“Rule 56 does not impose upon the district court a duty to sift through the

record in search of evidence to support a party’s opposition to summary judgment.”

Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003); see also United States v. Del

Carpio Frescas, 932 F.3d 324, 331 (5th Cir. 2019) (“Judges are not like pigs, hunting

for truffles buried in the record.”); Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)

(“[A]lthough [the non-movants] submitted two volumes of evidentiary material [in

85 R. Doc. No. 49, at 10 (referencing “Petition, ¶¶ 28-33”).

86 R. Doc. No. 19, at 7–9 ¶¶ 30–44.

87 Again, the Court’s analysis regards McIntosh’s complaint as verified, and thus

competent summary judgment evidence. Falcon v. Holly, 480 F. App’x. 325, 326 (5th

Cir. 2012) (per curiam) (“[A] verified complaint and other verified pleadings serve as

competent summary judgment evidence.”); Hart v. Haiston, 343 F.3d 762, 765 (5th

Cir. 2003) (“On summary judgment, factual allegations set forth in a verified

complaint may be treated the same as when they are contained in an affidavit.”).

Nevertheless, his complaint does not specifically allege that he was not resisting, and

McIntosh—represented by counsel—offers no other citation to any support for this

contention. See R. Doc. No. 49, at 6, 10.

88 R. Doc. No. 49, at 9–12; R. Doc. No. 10 (scheduling order), at 5 (instructing the

parties, that to support or oppose summary judgment, “[c]itations to record evidence

shall indicate, whenever applicable, an exhibit reference, page reference, and record

document number reference. Record evidence not specifically referred to by the

parties may not be considered by the Court.”).

opposition to summary judgment], they did not identify the specific portions of such

evidence (if any) that supported their [claim].”). McIntosh has not “produced evidence

that the alleged excessive force occurred after [he] stopped resisting[.]” Bush, 513

F.3d at 500 (emphasis added).

Second, McIntosh contends that “[t]here is nothing in [d]isciplinary [r]eports

about any resistance by McIntosh after he was placed in restraints.”89 But McIntosh

ignores the record. Waskom’s narrative, incorporated in the Board’s second report,

recounts that once McIntosh was on “Sun Walk,” McIntosh “began cursing [Waskom]

and other officers and began to drag his feet.”90 Waskom gave McIntosh several

orders, and McIntosh complied “momentarily” before dragging his feet again after a

short distance.91 Once McIntosh reached the front door of the Sun Unit, McIntosh

“attempted to kneel down and pick[ ] his feet up off the walk.”92 McIntosh refused

orders to stand up, swearing at the officers.93 Once inside the Sun Unit, McIntosh

was ordered to kneel down, and McIntosh replied, “Fuck that. I’m standing now

bitch.”94 And only after Waskom gave McIntosh several more orders to kneel,

Waskom delivered “a knee strike” to McIntosh’s “left common peroneal nerve,” and

McIntosh “reluctantly complied.”95

89 R. Doc. No. 49, at 11.

90 R. Doc. No. 43-8, at 5.

91 Id.

92 Id.

93 Id.

94 Id.

95 Id.

Again, the Board found Waskom’s report to be “clear and precise,” and “more

credible than [McIntosh’s version of events].”96 This factual basis therefore shows

that McIntosh had “been resisting throughout the encounter.” Aucoin, 958 F.3d at

384 n.1 (emphasis in original); id. at 381 (“Aucoin was found guilty of defiance,

aggravated disobedience, and property destruction for misconduct in his cell. But his

misconduct ceased while he was in his cell.”) (emphasis added); cf. Santos, 18 F.4th

at 478 (“Moreover, the disciplinary board imposed no sanctions at all on Santos for

actions after the administration of the chemical agent in the shower, and it noted

that he ‘complied with orders’ after that point. Thus, Heck does not bar Santos’s

claims from that point onward.”).

“Here, the disciplinary reports round out [the Court’s] understanding of the

events leading up to [McIntosh’s] disciplinary infraction[s]—and provide a fuller

account of what transpired[.]” Aucoin, 958 F.3d at 381. Overall, McIntosh’s

complaint turns on a single narrative: that he was attacked without provocation.

This theory is fundamentally inconsistent with the Board’s crediting the officers’

narratives, and his claim therefore “challenges the factual determination that

underlies his conviction[s].” Id. at 384. McIntosh’s § 1983 claim is therefore barred

by Heck, and the Court must grant summary judgment in favor of defendants with

respect to this claim. 97

96 Id.

97 McIntosh also argues that this Court must hold an evidentiary hearing to

determine “the exact conduct covered by the disciplinary complaint and the evidence

offered for the findings by the disciplinary hearing officer.” R. Doc. No. 49, at 9

(referencing Gray v. White, 18 F.4th 463 (5th Cir. 2021), and Santos v. White, 18 F.4th

B. McIntosh’s State Law Claims

The Court has concluded that McIntosh’s § 1983 claim is barred, so only his

state law claims remain. A district court has “wide discretion” when deciding

whether it should retain jurisdiction over state law claims once all federal claims have

been eliminated. Guzzino v. Felterman, 191 F.3d 588, 595 (5th Cir. 1999). However,

the general rule in the Fifth Circuit is “to dismiss state claims when the federal claims

to which they are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser

Indus., 972 F.2d 580, 585 (5th Cir. 1992).

A district court may decline to exercise supplemental jurisdiction over a state

law claim if:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over

which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original

jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for

declining jurisdiction.

472 (5th Cir. 2021)). He similarly insists that summary judgment is inappropriate

because no audio recordings have been produced of the hearings, which would further

clarify the Board’s findings. R. Doc. No. 49, at 11–12. First, McIntosh’s argument

overlooks that neither Gray nor Santos mandated an evidentiary hearing; instead,

both cases noted that the Fifth Circuit did not “suggest how the [district] court should

rule on which claims are precluded by Heck,” on remand. 18 F.4th at 470; 18 F.4th

477. Second, McIntosh’s contention that he is wholly blameless means that the Court

“need not dwell on the component elements” of McIntosh’s disciplinary convictions to

determine that “his claims are incompatible with the disciplinary board’s findings.”

Santos, 18 F.4th at 478 (Willett, J., concurring). “Could the record have more

information? Absolutely. [Does the Court] need more? No.” Id. at 447 (emphasis in

original).

28 U.S.C. § 1367(c). In addition to these factors, the Fifth Circuit has instructed

district courts to consider the common law factors of “judicial economy, convenience,

fairness, and comity.” Mendoza v. Murphy, 532 F.3d 342, 346 (5th Cir. 2008). “These

interests are to be considered on a case-by-case basis, and no single factor is

dispositive.” Id.

These factors weigh in favor of dismissing McIntosh’s state law claims without

prejudice so that he may assert those claims in state court. The Court has “dismissed

all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Moreover,

allowing Louisiana courts to rule on Louisiana law “encourages fairness between the

parties by ‘procuring for them a surer-footed reading of applicable law.’” Bitte v. EMC

Mortgage Corp., No. 07-9273, 2009 WL 1950911, at *2 (E.D. La. July 1, 2009) (Africk,

J.) (citations omitted) (quoting United Mine Workers of Am. v. Gibbs, 383 U.S. 715,

726 (1966)). “[D]eference in this case with respect to the state law issue[s] promotes

the important interest of comity to state courts.” Id.

Therefore, the Court declines to exercise supplemental jurisdiction over the

remaining state law claims. Those claims are dismissed without prejudice, as ordered

below.

IV. CONCLUSION

For the foregoing reasons,

IT IS ORDERED that the motion98 for summary judgment is GRANTED IN

PART as set forth below.

98 R. Doc. No. 43.

IT IS FURTHER ORDERED that summary judgment is GRANTED to the

extent that McIntosh’s § 1983 claim against Goings, Stringer, Waskom, and Dillon is

barred by Heck, and McIntosh’s § 1983 claim is DISMISSED WITH PREJUDICE

to its being asserted again until the Heck conditions are met.

IT IS FURTHER ORDERED that MclIntosh’s state law claims asserting

negligence and respondeat superior are DISMISSED WITHOUT PREJUDICE to

their being timely asserted in state court.

New Orleans, Louisiana, April 11, 2022.

Me eAn__

_ Seffo

UNITED STATES D&#STRICT JUDGE

22