Arvie v. Broussard

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-4189

Summary Calendar

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HUBERT ARVIE,

Plaintiff-Appellant,

VERSUS

R. BRADY BROUSSARD,

Mayor of Abbeville, et al.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Western District of Louisiana

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December 23, 1994

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

The district court dismissed, as time-barred, Hubert Arvie's

42 U.S.C. § 1983 state prisoner's suit that claims the defendants

conspired to convict him wrongly. On January 11, 1994, in an

unpublished order, we retained jurisdiction but remanded in order

that the district court might make certain findings. The dis-

trict court, with the assistance of the magistrate judge, has

responded with those findings.

Subsequent caselaw, however, has rendered the findings moot

in this case. Under Heck v. Humphrey, 114 S. Ct. 2364 (1994),

and our opinions construing it, e.g., Boyd v. Biggers, 31 F.3d

279 (5th Cir. 1994) (per curiam), and Stephenson v. Reno, 28 F.3d

26 (5th Cir. 1994) (per curiam), where, as here, a suit brought

pursuant to § 1983 challenges the legality of the plaintiff's

conviction, the claim is not cognizable unless the conviction has

been invalidated.

Accordingly, dismissal was appropriate, although for reasons

different from those given by the district court. Here, the dis-

missal was without prejudice, but under Boyd and Stephenson the

dismissal should have been with prejudice. Because the plaintiff

is the only party who has appealed the judgment, however, we de-

cline to change the dismissal from one without prejudice to one

with prejudice.

The rule in this circuit has long been established that "ab-

sent a cross-appeal, the appellee cannot attack the district

court's decree with a view either to enlarging his own rights

thereunder or lessening the rights of his adversary." Speaks v.

Trikora Lloyd, P.T., 838 F.2d 1436, 1439 (5th Cir. 1988). Other

decisions of this court to the same effect include Robicheaux v.

Radcliff Material, Inc., 697 F.2d 662, 668 (5th Cir. 1983);

Alford v. City of Lubbock, 664 F.2d 1263, 1272-73 (5th Cir.),

cert. denied, 456 U.S. 975 (1982); and Duriso v. K-Mart No. 4195,

559 F.2d 1274, 1278 (5th Cir. 1977). See also Laker v. Vallette

(In re Toyota of Jefferson, Inc.), 14 F.3d 1088, 1091 n.1 (5th

Cir. 1994). We have treated this as a jurisdictional matter.

See Shipp v. General Motors Corp., 750 F.2d 418, 428 (5th Cir.

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1985).

These decisions are in accordance with the general rule.

"The rule that a cross-appeal must be filed to secure a favorable

modification of the judgment is stated and applied in many set-

tings. As shown by common examples an appellee cannot, without

cross-appeal, seek . . . to convert a dismissal without prejudice

into a dismissal with prejudice." 15A CHARLES A. WRIGHT, ET AL.,

FEDERAL PRACTICE AND PROCEDURE § 3904, at 196-98 (2d ed. 1986)

(footnote omitted). See also 9 JAMES W. MOORE, ET AL., MOORE'S FEDERAL

PRACTICE ¶ 204.11[3] (2d ed. 1993); New Castle County v. Hartford

Accident & Indem. Co., 933 F.2d 1162, 1205-06 (3d Cir. 1991);

Benson v. Armontrout, 767 F.2d 454, 455 (8th Cir. 1985).

We recognize that Graves v. Hampton, 1 F.3d 315, 319 (5th

Cir. 1993), changed a dismissal without prejudice to one with

prejudice in a case where the plaintiff was the only party

appealing the judgment. We conclude, however, that Graves is

inconsistent with prior Fifth Circuit authority as cited above.

In such a situation, we are obligated to follow the earlier deci-

sions of this court. See Paura v. United States Parole Comm'n,

18 F.3d 1188, 1189-90 (5th Cir. 1994). Therefore, the judgment

is AFFIRMED.

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