Opposition Brief — Walker v. Munsell (No. 08-334)

No. 08-334 wed Naas

In The

SUPREME COURT OF THE UNITED STATES

CLAYTON ANTHONY WALKER, Individually and

as Administrator of the Estate of Breanna Nicole

Walker on behalf of Breanna Nicole Walker,

Petitioners,

V.

RUSS MUNSELL, Officer: DAVID HOOTER,

Officer; RODNEY WALKER, Officer,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION TO

PETITION FOR WRIT CERTIORARI

Bradley C. Myers (#1499)

Lana D. Crump (#23707)

Counsel of Record

KEAN,MILLER, HAWTHORNE,

D’ARMOND, MCCOWAN &

JARMAN, L.L.P.

P.O. Box 3513

Baton Rouge, LA 70821

(225) 387-0999

Attorneys for Respondents Russ

Munsell, David Hooter, and

Rodney Walker

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Fifth Circuit erred when it found

that the district court properly decided the

motion for summary judgment filed by

Defendants Russ Munsell, David Hooter and

Rodney Walker, by dismissing Plaintiffs

excessive force and malicious prosecution

claims on the grounds that no genuine issues

of material fact exist and Defendants are

entitled to judgment as a matter of law. The

specific issues are as follows:

a. Whether the Fifth Circuit was correct in

affirming the district court’s application of

Heck v. Humphrey’ to Plaintiffs excessive

force claim.

b. Whether the Fifth Circuit was correct in

affirming the district court’s application of

Heck to Plaintiffs particular excessive

force claim wherein Plaintiff categorically

denies resisting arrest in his 42 U.S.C. §

1983 action.

c. Whether the Fifth Circuit was correct in

finding that the plain language of Heck

applied to Plaintiff even though he is

habeas corpus ineligible since Plaintiff has

1512 U.S. 477 (1994).

il

other procedural means of establishing

favorable termination under Heck.

2. Whether the Fifth Circuit erred when it found

the district court did not abuse its discretion

when it refused to certify its dismissal of

Plaintiffs ex essive force claim for immediate

appeal under Federal Rule of Civil Procedure

54(b).

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW............... i

ee i rctinisisiskicsinimviaiieccecciazasetians ill

TABLE OF CITED AUTHORITIES .....0.0. ee. vi

CITATIONS TO OPINIONS BELOW .....000.. ee. 1

CONSTITUTIONAL PROVISIONS AND

ain rei sasinstcintietiaasiaadienincetadecnel 1

STATEMENT OF TEES CASE. .......00ccc0cccccccssecoscsosssees 2

REASONS FOR DENYING PETITION FOR WRIT

I iid scherisikanvcndglsininahgnienmtsincntiiieingnviiniaend 8

TT vitnieiesncsitsasiaiptialicestintinnniiisdinideisannadiguienbineiwebisiin 11

I. Summary of Argument ................c.ccccccccsssssees 11

A. The Heck Doctrine Was Not Waived.....11

B. Heck Applies to Excessive Force Claims

Where Plaintiff Categorically Denies

I ocean caste rmuniianiamnidaas 12

C. The Plain Language of Heck Apples to

Plaintiff Even Though He Is Habeas

IID wsakhdnclinctitassddsipencduabientnbsadandibuanion 13

iv

D. The District Court Properly Exercised its

Discretion in Denying Rule 54(b)

I lich site ntaielsieeidetiindatdeccibiictadd 13

II. The Fifth Circuit Properly Found Summary

Judgment Was Warranted ........................004. 14

A. Heck v. Humphrey Standard ................. 14

The Fifth Circuit Properly Found the

Heck Doctrine Was Not Waived............. 15

C. The Fifth Circuit Correctly Found Heck

Bars This Particular Excessive Force

Claim Wherein Plaintiff Categorically

Denies Resisting Arrest in His § 1983

RU lidaidetatiiaaiiiestipiajtihtaiteiilidhiminisiinnssiteeaiianlélaaie 17

1. Arnold and Its Progeny......................00064 18

2. Plaintiffs Claims are Like Arnold and Its

SPIT icctabuinectiinisinutieaiabiniieinenaannddaunailins 20

3. Plaintiffs Excessive Force Claim is

Distinguishable From Claims That

ID BET HD ccccccensacstccoccesicccscocoseus 22

D. The Fifth Circuit Properly Found the

Plain Language of Heck Applies to

Plaintiff Even Though He Is Habeas

Ineligible Since Plaintiff Has Other

Procedural Means of Establishing

Favorable Termination. ........................- 24

Ill. The District Court Did Not Abuse Its

Discretion When It Refused To Certify Its

Dismissal of Plaintiffs Excessive Force Claim

For Immediate Appeal Under Federal Rule Of

Civil Procedure 54(b)..............cccccccceseeeceeeeeceeee 28

ETE AE EA aN TR ATE SES Se EER 31

INDEX TO APPENDICES

APPENDIX D- Ruling on Motion for Rule 54(B)

Certification of the United States District Court for

the Middle District of Louisiana dated November13,

APPENDIX E: 42 U.S.C. §..cccccscssscssesssesssesesssee App. B

APPENDIX F- U.S. Const. Amendments IV and

TTT Lidia baieciiigachssteetidiinanitinisitasianiipaieianabeaauianadaaiananiae App. C

ra” = a eh?! tei, tn i. © Bb) Deed, Be tin, ee Oe i at 1 ee pe

=o

:

TABLE OF CITED AUTHORITIES

CASES

Allied Chemical Corp. v. Mackay, 695 F.2d 854

RESTS SCE SL ll

Arnold v. Town of Slaughter, 100 Fed. Appx. 321

GBs Che, BOD 3220.00.20000<0505 10, 12, 17, 18, 19, 20, 24

Baker v. City of Hollywood, No. 08-60294-CIV, 2008

WL 2474665 (S.D. Fla. June 17, 2008)........... 10, 25

Ballard v. Burton, 444 F.3d 391 (5th Cir. 2006) ....... 6

Battle v. Marquardt, No. CV. A. 03-1062, 2006 WL

1073068 (W.D. Pa. Apr. 21, 2006) ...... 10, 13, 25, 26

| Bettes v. Stonewall Ins. Co., 480 F.2d 92

OSE A A 17

Beverly v. Talsma, No. 3:06-CV-0160-DFH-WGH,

2008 WL 2114886, (S.D. Ind. Mar. 28, 2008)....... 19

Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994).....29, 30

Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1

SESE NEO ine bls SERRE ee 29

DeLeon v. City of Corpus Christi, 488 F.3d 649

I cia cinacdamienstiominonanee 10, 12, 19, 30

Vii

Dickinson v. Petroleum Conversion Corp., 338 U.S.

RAR SE SP RIAL a we Hen OR rT 29

Dyer v. Lee, 488 F.3d 876 (11th Cir. 2007).............. 22

Graham v. Johnson, 94 F.3d 958 (5th Cir. 1996) (per

SEAR es Aeotorede Mus ame aul ay rt abe Neead Meant 12

Hassler v. Carson County, 111 Fed. Appx. 728

IRR a a ce ee on ne cE 10, 26

Heck v. Humphrey, 512 U.S. 477 (1994) ......... passim

Jasmin v. Dumas, 726 F.2d 242

ROR ER NEO aaa RENEE 28

Johnson v. Dallas City Police Dept., 2004 WL

2964968 (N.D. Tex. Dec. 15, 2004), aff'd, 2005 WL

119467 (N.D. Tex. Jan. 18, 2005) ...........0cccc cece. 19

Johnson v. McElveen, 101 F.3d 423

I cisuamns 29, 30

Jones v. Miles, 656 F.2d 103 (5th Cir. 1981)....... "

Lucas v. United States, 807 F.2d 414

Se (eS 11

Martinez v. City of Albuquerque, 184 F.3d 1123

I ee 23

Vili

Nelson v. Jashurek, 109 F.3d 142 (3d Cir. 1997) ....23

Okoro v. Callaghan, 324 F.3d 488

SSIS SETS ee ed Or va 17, 19

Phyfer v. San Gabriel Dev. Corp., 884 F.2d 235

a 16

Quintana v. Gates, No. CV 0007166 GAF, 2004 WL

1661540 (C.D. Cal. July 20, 2004) oo... 16

Randell v. Johnson, 227 F.3d 300

REE I 10, 13, 26

Road Sprinkler Fitters Local Union v. Continental

Sprinkler Co., 967 F.2d 145 (5th Cir. 1992)...28, 29

Robinson v. Doe, 272 F.3d 921 (7th Cir. 2001)........ 23

Sappington v. Bartree, 195 F.3d 234

Rt SR CC 15

Spencer v. Kemna, 523 U.S. 1 (1998)...0........00000000... 26

Stephenson v. Reno, 28 F.3d 26 (5th Cir. 1994)...... 29

United States v. Shanbaum, 10 F.3d 305

hE e+. Te ane 11, 12

VanGulder v. Baker, 435 F.3d 689

i SIL ee TT 22

ix

Vickers v. Donahue, 137 Fed. Appx. 285

EAE a ee 10, 25

Wallace v. Kato, 127 S. Ct. 1091 (2007)..............006+ 30

Watson v. New Orleans City, 275 F.3d 46, 2001 WL

1268716 (5th Cir. Oct. 16, 2001).......0..0000000.... 11, 16

Willingham v. Loughnan, 261 F.3d 1178 (11th Cir.

2001), cert. granted and judgment vacated on

other grounds, 537 U.S. 801 (2002)...................... 23

Withrow v. Williams, 507 U.S. 680, 721 (1993)

(Scalia, J., concurring) ...................:cceeeccesseeeeee 27, 28

CONSTITUTIONAL PROVISIONS

i ccesccncnpmtitcnerncsiacianeneinainesnteai I

critics cagsiacl inden

I, FU TEE deicnisinsnincononcosnsnciotisnsiisinedensisioanen 3

Sons I, SEIN, CIIPY cntecccsiceccentisevcsnssoseneioniee er, oe

STATUTES

I Tt nsscnicnsnnsniiicensiinecsennesheosniicaeinniiie passim

ee Sc cece uusmncmwmeummedenmmmeneseuebecciones 21

RULES

SE NTO 11, 15, 16

fk nee se Rares” 16

Fed. R. Civ. P. 54(b).............cccesee0s ii, 3, 7, 8, 13, 14, 28

29, 31

TTT AS ARO AT DTT TE Rin 8,910 —

I 2

Sy Ts MIE TTIN U,ctssinlalictacevensitaghiceinebaihattendiaaiilail 2

CODE

Code of Ordinances, City of Denham Springs (La.)

TE SR a ee 2, 20, 23, 24

La. Code Crim. Proc. Ann. art. 220 (2008) .............. 24

OTHER AUTHORITIES

Charles Alan Wright & Arthur R. Miller, 5 Federal

Practice and Procedure § 1278 at 491-94 (3d ed.

1990) ............ SR SSRN eA ROSE EE AT Se NO SRO 16

xi

CITATIONS OF OFFICIAL/ UNOFFICIAL

REPORTS

Walker v. Munsell, No. 06°867-JJB-SCR

8 it ae 7

Walker v. Munsell, No. 06-°867-JJB-SCR, 2007 WL

3377202, at * 4n. 8 (M.D. La. Oct. 1, 2007)......6, 7,

24, 26

Walker v. Munsell, No. 06°867-JJB-SCR, 2007 WL

3377270, at * 1 (M.D. La. Nov. 13, 2007)............... 7

Walker v. Munsell, No. 08-30087, 281 Fed. Appx.

388, 389-390 (5th Cir. June 13, 2008).................... 8

CITATIONS TO OPINIONS BELOW

Ruling on Motion to Dismiss, Walker v. Munsell, No.

06-867-JJB-SCR (M.D. La. Aug. 24, 2007).

Ruling on the Motion for Summary Judgment,

Walker v. Munsell, No. 06-867-JJB-SCR, 2007 WL

3377202 (M.D. La. Oct. 1, 2007).

Ruling on Motion for Rule 54(b) Certification,

Walker v. Munsell, No. 06-867-JJB-SCR, 2007 WL

3377270 (M.D. La. Nov. 13, 2007).

The Opinion of the Fifth Circuit Court of Appeal,

Walker v. Munsell, No. 08-30087, 281 Fed. Appx.

388 (5th Cir. June 13, 2008).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Respondents disagree with Petitioner's

statement regarding the laws involved in this

matter.

Petitioner's claims for violation of his

constitutional mghts are brought pursuant to 42

U.S.C. § 1983. The malicious prosecution and

excessive force claims dismissed on Respondents’

motion for summary judgment were for alleged

violations of the Fourth and _ “Fourteenth

Amendments to the United States Constitution. The

text of these constitutional] provisions and statutes

appear in the appendix. Supreme Court Rule 24.1(f).

STATEMENT OF THE CASE

Pursuant to Supreme Court Rule 15.2,

Respondents state that they. perceive several

misstatements of fact in the petition for writ of

certiorari. For the sake of brevity and clarity,

Respondents discharge their obligation to the Court

to point out the misstatements by presenting their

own statement of facts instead of Petitioner’s

presentation of the facts. Supreme Court Rule 24.2.

This action involves the undisputed validity of

the favorable termination requirement of Heck v.

Humphrey, 512 U.S. 477 (1994). On July 30, 2007,

Plaintiff-Petitioner Clayton Anthony Walker was

convicted of three (3) counts of resisting an officer

under the Code of Ordinances, City of Denham

Springs (La.) § 66-293 (1987) and one (1) count of

failure to signal. The convictions arose out of

Plaintiffs arrest by Defendants on November 3, 2006

while Defendants were uniformed and on duty with

the City of Denham Springs Police Department.

Without previously obtaining favorable

termination of his criminal convictions”, Plaintiff

2 Plaintiff has appealed his convictions but has been unable to

obtain favorable termination.

filed this § 1983 action alleging causes of action for

violation of civil rights under 42 U.S.C. § 1983,

including unreasonable search and seizure and

excessive force; deprivation of his Fifth and/or

Fourteenth Amendment right to be free from

malicious prosecution; deprivation of his Eighth

Amendment right to be free from cruel and unusual

punishment; and failure to provide medical care.

Despite the Plaintiffs conviction of resisting

arrest in the criminal suit, in the current lawsuit,

Plaintiff repeatedly asserts in complaint‘, affidavit,

8 Plaintiffs 8th Amendment claim for alleged deliberate

indifference to plaintiffs medical needs was dismissed on

summary judgment on July 24, 2007. Plaintiff did not contest

this ruling on appeal. Additionally, plaintiff voluntarily

dismissed his failure to provide medical care claim after the

district court denied Rule 54(b) certification of its ruling on

plaintiffs excessive force claim.

4 See Complaint for Damages at 4, Walker v. Munsell, No. 06-

867 (M.D. La. Nov. 13, 2006). Plaintiff alleges: “Mr. Walker

was on the ground with his hand behind his back, when

another officer arrived moved his arms and instructed Mr.

Walker to stop resisting arrest. Mr. Walker responded that he

was not so doing.”

5 See Affidavit of Walker attached to Memorandum in Support

of Motion Memorandum in Support of Motion to Take

Deposition from Officer Russ Munsell, Officer David Hooter,

Officer Rodney Walker, Officer Gerald Parker, Officer John

Albritton, Walker v. Munsell, No. 06-867 (M.D. La. Jan. 15

2007). Plaintiff attested under oath:

Someone grabbed both of my arms over my elbows at

the lower part of my biceps and pulled them away from

deposition’ and trial testimony’ that after one of the

Defendants made the traffic stop on November 3,

my face and behind my back and then my arms were

just thrown toward the front of my body. I was still face

down. Someone said something very close to ‘quit

resisting arrest.’ I said, ‘I'm not resisting arrest’ and I

moved my left and right arms and hands back to the

lower part of my back.

6 Walker dep. 50:5-9; 536-16; 57:5-9; 57:19-22, Apr. 11, 2007.

On deposition,

Q:

“**

POEPOPO = O KOK

*

Plaintiff testified:

Did you at any time resist when this officer

tried to turn you over?

No, ma’am.

Okay, you may be seated. So, you told us — you

told us that someone said quit resisting arrest?

Yes, ma’am.

And so what did you say at that point?

I said I wasn’t resisting. I placed my hands back

behind my lower back.

Do you know why they told you to quit resisting

arrest?

No ma’am.

Do you remember running at all that night?

No, ma'am.

You don’t remember running at all?

No, ma‘am.

Do you recall running at all that evening?

No ma’‘am.

7 See Certified Transcript of Criminal Trial Proceedings at 95-

97, City of Denham Springs v. Walker, No. 221366 (July 30,

2007). Plaintiff testified:

2006, he attacked Plaintiff for no reason but Plaintiff

did not resist any of the Defendants or their

attempts to apprehend him during his arrest.

> DQPO?e®

OP OF}

*

>

Okay. What happened once the car stops; did

you get out of the car?

Yes, ma'am, I waited for a minute, opened my

door and got out. I was — that’s when Officer —

now that I] know the officer, it was Officer

Munsell was approaching the car, asked me for

my license and registration.

Okay. So what did you do then?

Leaned back in the car to get it.

What happened after that?

I was struck from behind.

What do you recall after being struck from

behind?

Basically I — | remember hitting the ground.

After that everything went — just became a blur

because it — I was in shock. I was —I really

couldn’t place what was happening.

Okay. Did you run?

No, ma’am, | don’t believe I did.

The officer says as soon as he stopped, you got

out of the car and started running.

No, ma’am, I don’t recall myself running.

Okay. What —- at what point do you recall what

was going on; I mean, are you kicked, punched,

or anything happen [sic] like that?

I remember being kicked in the side of the head

and the right side of my hip, my face. Basically

all over. It was just —I just felt like I was just

getting beat on. Like I said, I started to

hyperventilate, I blacked out after being

sprayed. I wasn’t able to see anything. My

breathing was very hard.

Pursuant to Heck, a plaintiff convicted of a

crime cannot recover damages for violation of his

constitutional rights if that “violation arose from the

same facts.attendant to the charge for which he was

convicted, unless he proves ‘that his 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.” Ballard

v. Burton, 444 F.3d 391, 396 (5th Cir. 2006) (quoting

Heck, 512 U.S. 477 at 486-487).

Plaintiff has no evidence that his convictions

have 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. See, Heck, 512 U.S. 477 at 486 - 487.

On October 1, 2007, the district court for the

Middle District of Louisiana granted summary

judgment in Defendants’ favor dismissing Plaintiffs

claims for excessive force and malicious prosecution

“under the plain language of Heck.”® Heck applied

to Plaintiff. even though he is habeas ineligible

because “there is nothing precluding a direct appeal

8 Walker v. Munsell, No. 06°867-JJB-SCR, 2007 WL 3377202,

at * 3(M.D. La. Oct. 1, 2007); App. C Pet. Cert. 15a°15b.

of state court convictions, and a successful appeal

would clearly satisfy the favorable termination

requirements under Heck.”

Plaintiff sought immediate appeal of the

portion of the district court’s ruling that dismissed

with prejudice Plaintiffs claim for excessive force.1°

However on November 13, 2007, the district court

denied Federal Rule of Civil Procedure 54(b)

certification finding the Plaintiff failed to

demonstrate that certification under Rule 54(b) was

appropriate.!!

The Fifth Circuit Court of Appeal properly

affirmed the district court’s dismissal of Plaintiff's

excessive force and malicious prosecution claims

which squarely challenged Plaintiffs underlying

convictions pursuant to Heck and its progeny, by: (1)

affirming the finding that the Heck bar to suit is not

waived by failure to plead it as an affirmative

defense; (2) affirming Heck’s application to Plaintiff's

excessive force claim where Plaintiff claims he did

nothing wrong; (3) affirming Heck’s application to

8 Walker v. Munsell, No. 06°867-JJB-SCR, 2007 WL 3377202,

at *4n. 8 (M.D. La. Oct. 1, 2007) ; App. C Pet. Cert. 22a.

10 Ruling on Motion to Dismiss, Walker v. Munsell, No. 06-867-

JJB-SCR (M.D. La. Aug. 24, 2007); App. D Pet. Cert. 24a-27a.

"| Walker v. Munsell, No. 06°867-JJB-SCR, 2007 WL 3377270,

at * 1 (M.D. La. Nov. 13, 2007); App. A Opp’n. Pet. Cert. App. 1-

2.

non-custodial plaintiffs; (4) affirming the district

court’s ruling denying Rule 54(b) certification on

Plaintiffs excessive force claim.’2 Plaintiff now

petitions this Court for writ of certiorari raising the

same issues he raised in his appeal to the Fifth

Circuit.

REASONS FOR DENYING PETITION FOR WRIT

OF CERTIORARI

Plaintiff presents no compelling reasons to

review this case on a writ of certiorari. Sup. Ct. Rule

10. A petition for a writ must demonstrate that:

(a) a United States court of appeals has

entered a decision in conflict with the decision

of another United States court of appeals on

the same important matter; has decided an

important federal question in a way that

conflicts with a decision by a state court of last

resort; or has so far departed from the

accepted and usual course of judicial

proceedings, or sanctioned such a departure

by a lower court, as to call for an exercise of

this Court's supervisory power;

(b) a state court of last resort has decided an

important federal question in a way that

conflicts with the decision of another state

12 Walker v. Munsell, No. 08-30087, 281 Fed. Appx. 388, 389-

390 (5th Cir. June 13, 2008).

court of last resort or of a United States court

of appeals;

(c) a state court or a United States court of

appeals has decided an important question of

federal law that has not been, but should be,

settled by this Court, or has decided an

important federal question in a way that

conflicts with relevant decisions of this Court.

Sup. Ct. Rule 10. No Rule 10 criterion is satisfied

here.

While there may be a split in the circuits over

the application of Heck’s favorable termination

requirement to a habeas ineligible plaintiff,

resolution of that issue is unnecessary in this case

because this Plaintiff has other procedural means of

establishing favorable termination. The core holding

of Heck provides several means for a plaintiff to

demonstrate invalidity of his sentence or conviction

besides the issuance of a writ of habeas corpus.

Favorable termination may be satisfied by showing

the conviction or sentence has been: (1) reversed on

direct appeal; (2) expunged by executive order: (3)

declared invalid by a state tribunal] authorized to

make such determination; (4) or called into question

by a federal court's issuance of a writ of habeas

corpus. Heck, 512 U.S. 477, 486-477. Since Plaintiff

is able to directly appeal his conviction, this Court

does not have to decide whether Heck’s favorable

termination requirement should be relaxed for a

plaintiff who has no procedural vehicle to challenge

10

his conviction. See Vickers v. Donahue, 137 Fed.

Appx. 285 (11th Cir. 2005); Baker v. City of

Hollywood, No. 08-60294-CIV, 2008 WL 2474665

(S.D. Fla. June 17, 2008); Randell v. Johnson, 227

F.3d 300, 301 (5th Cir. 2000); Battle v. Marquardt,

No. CV. A. 03-1062, 2006 WL 1073068, at *2 (W.D.

Pa. Apr. 21, 2006); Hassler v. Carson County, 111

Fed. Appx. 728 , at * 1 (5th Cir. 2004).

In addition, there is no conflict in the circuits

regarding the Fifth Circuit’s application of Heck to

an excessive force claim when Plaintiff claims he has

been attacked for no reason at all. Arnold v. Town of

Slaughter, 100 Fed. Appx. 321, at * 3 (5th Cir. 2004);

DeLeon v. City of Corpus Christi, 488 F.3d 649, 657

(5th Cir. 2007).

The other Rule 10 criteria are also absent.

Plaintiff asserts erroneous factual findings and/or

misapplication of rules of law, circumstances under

which a petition for writ of certiorari is rarely

granted. Sup. Ct. Rule 10. The Louisiana Supreme

Court did not decide an important federal question,

let alone decide it in a way that conflicts with the

rulings of the high court of any other state or any

United States court of appeals. There is no

important question of federal law for this Court to

settle. The Rule 10 criteria have not been

established here.

1]

ARGUMENT

I. Summary of Argument

The Fifth Circuit correctly affirmed the

summary judgment dismissing with prejudice the

excessive force and malicious prosecution claims

brought against Russ Munsell, David Hooter, and

Rodney Walker “until Heck conditions are satisfied”

for the reasons discussed below:

A The Heck Doctrine Was Not Waived

The lower courts correctly found the Heck bar

to suit is not waived if omitted from an answer and

can be raised by motion at trial. Watson v. New

Orleans City, 275 F.3d 46, 2001 WL 1268716, at *3

(5th Cir. Oct. 16, 2001) (Heck doctrine not waived if

not plead as an affirmative defense and instead

raised in motion for judgment as a matter of law).

Even if Heck were found to be an affirmative

defense, (which is denied), as long as an affirmative

defense is “raised in the trial court in a manner that

does not result in unfair surprise . . . technical

failure to comply precisely with Rule 8(c) is not fatal”

and in such a situation a court may hold that the

defense was not waived. Lucas v. United States, 807

F.2d 414, 417 (5th Cir. 1986); Al/ied Chemica! Corp.

v. Mackay, 695 F.2d 854, 855-856 (5th Cir. 1983);

United States v. Shanbaum, 10 F.3d 305, 312 (5th

12

Cir. 1994). Plaintiff does not argue that he was

prejudiced by Defendants’ not raising Heck in their

answer. Therefore, the lower courts did not err in

finding Heck was properly raised by motion and not

waived, especially since “waivers of defenses based

on grounds rooted in .considerations of state

sovereignty are applied less harshly than other

waivers.” See Graham v. Johnson, 94 F.3d 958, 970

(5th Cir. 1996) (per curiam).

B. Heck Applies to Excessive Force Claims

Where Plaintiff Categorically Denies

Resistance

Plaintiffs excessive force claim which is based

solely on his assertion that he did not resist arrest

and did nothing wrong “squarely challenges the

factual determination that underlies his conviction

for resisting an officer” and was properly dismissed

by the lower courts. Arnold v. Town of Slaughter,

100 Fed. Appx. 321, 324 (Sth Cir. 2004). This

particular type of excessive force claim falls within

the category of excessive force claims that are barred

by the Fifth Circuit. Jd; see also DeLeon v. City of

Corpus Christi, 488 F.3d 649, 656-57 (5th Cir. 2007).

13

C. The Plain Language of Heck Applies to

Plaintiff Even Though He Is Habeas

Ineligible

The lower courts properly dismissed with

prejudice Plaintiffs excessive force and malicious

prosecution claims pursuant to the plain language of

Heck. Even though Plaintiff was not in custody

when he filed his § 1983 action, Heck’s favorable

termination requirement applies to Plaintiff because

he has other procedural means of establishing

favorable termination. Randel] v. Johnson, 227 F.3d

300, 301 (5th Cir. 2000). The mere unavailability of

the federal writ of habeas corpus does not affect

Heck’s applicability as long as, like in this case,

Plaintiff has other remedies available to call into

question his sentence. Battle v. Marquardt, No. CV.

A. 03-1062, 2006 WL 1073068, at *2 (W.D. Pa. Apr.

21, 2006). Therefore this case is not the appropriate

case to decide the split in the circuits regarding

whether Heck applies to a habeas ineligible plaintiff.

D. The District Court Properly Exercised

its Discretion in Denying Rule 54(b)

Certification

The Fifth Circuit properly found the district

court did not abuse its direction in refusing to certify

under Fed. R. Civ. P. 54(b) the dismissal of Plaintiff's

excessive force claim. Rule 54(b) certification is

warranted only upon the district court’s “express

determination that there is no just reason for delay

14

and upon an express direction for entry of

judgment.” Fed. R. Civ. P. 54(b). Here the

inconvenience of piecemeal appeals far outweighed

the possibility of delaying Plaintiffs appeal of the

district court’s dismissal of his excessive force claim.

Therefore, the Fifth Circuit properly affirmed the

district court’s exercise of discretion.

II. The Fifth Circuit Properly Found Summary

Judgment Was Warranted

A. Heck v. Humphrey Standard

In Heck v. Humphrey, 512 U.S. 477 (1994),

the majority of the Supreme Court held a § 1983

claim that would impugn a state conviction or

sentence “is not cognizable” until the conviction or

sentence has been invalidated:

(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....

15

Heck, 512 U.S. at 486-87. This requirement has

become known as the “favorable termination”

requirement. Sappington v. Bartree, 195 F.3d 234,

235 (5th Cir. 1999). Justice Scalia, joined by four

other Justices, grounded his opinion on a comparison

to the common law, rather than the need to preserve

habeas corpus as the exclusive federal remedy. The

Court analogized plaintiffs damages action and

similar actions that challenge the lawfulness of a

conviction or confinement, to common law tort

actions for malicious prosecution. Since a successful

malicious prosecution claim requires the accused to

first obtain a favorable judgment in the criminal

prosecution, the Court concluded the same “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.”

Heck, 512 U.S. at 486.

B. The Fifth Circuit Properly Found the

Heck Doctrine Was Not Waived

Plaintiff cites the residual clause of Fed. R.

Civ. P. 8(c) in contending that the Defendants

waived the Heck bar to suit. Rule 8(c) requires a

party to “set forth affirmatively .... res judicata, ...

. and any other matter constituting an avoidance or

affirmative defense.” Fed. Rule Civ. P. &(c).

However, as recognized by the district court, the

residual clause of Rule 8(c) has not been extended to

16

explicitly cover the Heck doctrine. Quintana v.

Gates, No. CV 0007166 GAF, 2004 WL 1661540, at *

4 (C.D. Cal. July 20, 2004). Agreeing that Heck is

more akin to a jurisdictional barrier that can be

raised by a motion pursuant to Rule 12(b), the

district court properly overruled Plaintiffs objection

to the use of the Heck doctrine. Quintana, 2004 WL

1661540, at * 5.

Even if Heck’s bar to suit is an affirmative

defense (which is denied), the lower courts properly

found the Defendants did not waive Heck by not

raising it in their answer. Watson v. New Orleans

City, No. 00-30438, 275 F.3d 46, 2001 WL 1268716

*3 (5th Cir. Oct. 16, 2001) (Heck bar to suit not

waived if not plead as an affirmative defense and

instead raised in motion for judgment as a matter of

law). “The waiver rule is not applied automatically

and as a practical matter there are numerous

exceptions to it. [One is that] the substance of many

unpleaded affirmative defenses may be asserted by

pretrial motions, particularly in the absence of

prejudice.” Charles Alan Wright & Arthur R. Miller,

5 Federal Practice and Procedure § 1278 at 491-94

(3d ed. 1990); accord Phyfer v. San Gabriel Dev.

Corp., 884 F.2d 235, 241 (5th Cir. 1989).

Where an affirmative defense “is raised in the

trial court in a manner that does not result in unfair

surprise; however, technical failure to comply

precisely with Rule 8(c) is not fatal.” Jones v. Miles,

656 F.2d 103, 107 n. 7 (5th Cir. 1981). There was no

17

surprise here and Plaintiff was not prejudiced in his

ability to respond. Although Defendants did not

raise Heck in their answer on January 9, 2007, the

Heck doctrine was raised at a pragmatically

sufficient time when Defendants included Heck in

their motion to dismiss without prejudice and

alternative motion to stay proceeding pending

resolution of criminal proceeding filed on May 25,

2007. Defendants did not “lie behind the log.” See

Bettes v. Stonewall Ins. Co., 480 F.2d 92, 94 (5th Cir.

1973). Thus construing the Federal Rule of Civil

Procedure to do substantial justice, the lower courts

properly found the Heck defense was not waived.

C. The Fifth Circuit Correctly Found Heck

Bars This Particular Excessive Force

Claim Wherein Plaintiff Categorically

Denies Resisting Arrest in His § 1983

Action

The lower courts properly found Heck, 512

U.S. at 486-87, applied to Plaintiffs particular

excessive force claim where Plaintiff alleged he did

nothing wrong but was viciously attacked for no

reason. Okoro v. Callaghan, 324 F.3d 488, 490 (7th

Cir. 2003) (As “master of his ground,” if a plaintiff

makes allegations that are inconsistent with his

valid convictions, “ Heck kicks in and bars his civil

suit.”). The Fifth Circuit in Arno/d v. Town of

Slaughter, 100 Fed. Appx. 321 (5th Cir. 2004), found

that in those cases wherein the plaintiff categorically

denies resisting arrest, the plaintiffs suit cannot

—

18

survive Heck’s bar because the suit “squarely

challenges the factual determination that underlies

his conviction for resisting an officer.” Jd. at 324-

325.

1. Arnold and Its Progeny

In Arnold, plaintiff claimed he did nothing to

provoke the officer's actions, never attempted to

strike the officers, never threatened any of them, or

resisted their attempts to arrest him. Arno/d, 100

Fed. Appx. at 324. However in the criminal case, the

trial judge had made a specific finding that plaintiff

had resisted the officer by being hostile and

threatening and by initiating the confrontation. Jd.

at 324. The court found plaintiffs challenge

“distinguishable from excessive force claims that

survive Heck’s bar.” Jd. at 324. The court found this

distinction because:

Arnold’s claims are not that police used

excessive force after he stopped resisting

arrest or even that officers used excessive and

unreasonable force to stop his resistance.

Instead, Arnold claims that he did nothing

wrong, but was viciously attacked for no

reason. In this way, Arnold’s claims are

distinguishable from excessive force claims

that survive Heck’s bar. Arnold’s suit

squarely challenges the factual determination

that underlies his conviction for resisting an

officer. If Arnold prevails, he will have

19

established that his criminal conviction lacks

any basis.

Id. at 324. Following Arnold, in DeLeon v. City of

Corpus Christi, the court found Heck barred

plaintiffs excessive force claim: that was not

separable from his aggravated assault conviction

because the complaint presented the excessive force

claim as single violent encounter throughout which

the plaintiff was wholly innocent. DeLeon, 488 F.3d

649, 656-57 (5th Cir. 2007); see also Johnson v.

Dallas City Police Dept., 2004 WL 2964968 (N.D.

Tex. Dec. 15, 2004), affd, 2005 WL 119467 (N_D.

Tex. Jan. 18, 2005) (plaintiffs excessive force claim

in which he alleged he did nothing wrong, but was

viciously attacked for no reason while in handcuffs

was barred by Heck because the facts if proved

would squarely challenge the factual determinations

of his conviction for aggravated assault); Okoro, 324

F.3d 488, 490 (7th Cir. 2003) (Heck barred plaintiff's

claim that police officers stole gems and cash from

plaintiff in the course of an arrest on drug trafficking

charges where plaintiff “adhered steadfastly to his

position” that he was innocent of any wrongdoing);

Beverly v. Talsma, No. 3:06-CV-0160-DFH-WGH,

2008 WL 2114886, at * 5 (S.D. Ind. Mar. 28, 2008)

(summary judgment granted dismissing plaintiffs

claims as barred by Heck where plaintiff alleged he

“was in no way, shape, or form, a threat” to the

officer).

20

2. Plaintiffs Claims are Like Arnold and

Its Progeny

Plaintiff here claims that he did nothing

wrong, did not resist and was viciously attacked for

no good reason.

However, Plaintiff was convicted of three (3)

counts of resisting an officer under Section 66-293 of

the Denham Springs Code and one count of failure to

use a turning signal’? 14 The judge in the criminal

13 City Court of Denham Springs Court Minutes, City of

Denham Springs v. Walker, No. 221366 (July 13, 2007).

14 Code of Ordinances, City of Denham Springs (La.) § 66-293

(1987) which mirrors La. R.S 14:108, defines resisting an officer

to encompass:

(a) Resisting an officer is the intentional inference with,

opposition or resistance to, or obstruction of an

individual action in his official capacity and authorized

by law to make a lawful arrest or seizure of property to

serve any lawful process of court order when the

offender knows or has reason to know that the person

arresting, seizing property or serving process is acting

in hie official capacity. [Emphasis added).

The phrase ‘obstruction of as used in this section shall, in

addition to its common meaning, signification, and the

connotation mean the following:

(1) Flight by one sought to be arrested before the arresting

officer can restrain him and after notice is given that he

is under arrest.

(2) Any violence toward or any resistance or opposition to

the arresting officer after the arrested party is actually

placed under arrest and befor. he is incarcerated in

jail.

“Al

21

court found the Plaintiff resisted the officer:(1)

“when he initially ran”; (2) when he was captured, he

continued to actively resist”; and (3) when he

resisted as “Corporal Walker attempted to cuff

him.”!5

Despite the state court’s findings, in his sworn

deposition and trial testimony Plaintiff maintains

that he remembers doing nothing wrong and that

the officers just attacked him.’* Plaintiffs denial of

excessive force was the same argument the court

found distinguished Arnold’s excessive force claim

from those that survive Heck’s bar.

Under La. R.S. 14:108, resisting an officer is defined as:

Resisting an officer is the intentional interference with,

opposition or resistance to, or obstruction of an

individual acting in his official capacity and authorized

by law to make a lawful arrest, lawful detention, or

seizure of property or to serve any lawful process or

court order when the offender knows or has reason to

know that the person arresting, detaining, seizing

property, or serving process is acting in his official

capacity. [Emphasis added).

16 Certified Transcript at 16, City of Denham Springs v.

Walker, No. 221366, (July 30 2007).

16 See supra text accompanying notes 4-7.

22

3. Plaintiffs Excessive Force Claim is

Distinguishable From Claims That

Survive Heck’s Bar

Plaintiffs excessive force claim is

distinguishable from excessive force claims that

survive Heck’s bar. His claim differs from Dyer v.

Lee, 488 F.3d 876 (11th Cir. 2007), which involved

allegations of excessive force occurring after the

plaintiff had been placed in lawful custody for

resisting arrest. Plaintiffs excessive force claim is

also distinguishable from VanGilder v. Baker, 435

F.3d 689, 691 (7th Cir. 2006), where Heck did not

bar a claim of excessive force where plaintiff did not

deny his resistance or challenge the factual basis for

the conviction.

As Plaintiffs cases illustrate, a § 1983 claim

would not necessarily imply the invalidity of a

resisting arrest conviction, and therefore would not

be barred by Heck, if the factual basis for the

conviction is temporally and conceptually distinct

from the excessive force claim. However, Plaintiffs

complaint does not allege that his excessive force

claim is separable from the events underlying his

resisting arrest conviction. In contrast, Plaintiffs

suit squarely challenges the state court judge's

factual determinations upon which his conviction of

resisting an officer is based. If Plaintiff prevails, he

will have established that his criminal conviction

lacks any basis. Therefore, the lower court properly

23

found this lawsuit challenges the validity of

Plaintiffs conviction and is barred by Heck.

This case is also distinguishable from cases

that find an excessive force claim would not

necessarily imply the invalidity of a resisting arrest

conviction where lawfulness of the arrest is not an

essential element of the crime. See Robinson v. Doe,

272 F.3d 921, 923 (7th Cir. 2001) (Robinson’s

excessive force claim was not barred by Heck

because, under Illinois law, “[pJolice might well use

excessive force in effecting a perfectly lawful

arrest”); Martinez v. City of Albuquerque, 184 F.3d

1123, 1125 (10th Cir. 1999) (Martinez was allowed to

proceed with a § 1983 claim under New Mexico law

“to the extent ... . [it] dlid) not challenge the

lawfulness of his arrest”); Nelson v. Jashurek, 109

F.3d 142, 145 (3d Cir. 1997) (Nelson was allowed to

proceed on a § 1983 claim, despite having an

outstanding conviction for resisting Jashureck's

arrest, because in Pennsylvania “a finding that

Jashurek used excessive ‘substantial force’ would not

imply that the arrest was unlawful . . .");

Willingham v. Loughnan, 261 F.3d 1178, 1183 (11th

Cir. 2001), cert. granted and judgment vacated on

other grounds, 537 U.S. 801 (2002) (same).

Under Louisiana law, a _ conviction for

resisting arrest is incompatible with an allegation

that the arrest was unlawful. An essential element

of the crime of resisting arrest is a lawful arrest.

Code of Ordinances, City of Denham Springs (La.)

24

66-293 (1987)17; see also Arnold, 100 Fed. Appx. at

325. Moreover, an officer making a lawful arrest,

"may use reasonable force to arrest and detain a

person and to overcome any resistance or threatened

resistance of the person being arrested or detained."

La. Code Crim. Proc. Ann. art. 220 (2008). This

aspect of Louisiana’s law distinguishes the instant

case from those regarded by the Plaintiff as

conflicting with the decisions of lower courts.

D. The Fifth Circuit Properly Found the

Plain Language of Heck Applies to

Plaintiff Even Though He Is Habeas

Ineligible Since Plaintiff Has Other

Procedural Means of Establishing

Favorable Termination.

The lower court properly found Heck

precludes Plaintiffs claims even though he is habeas

ineligible because as the district court pointed out

“there is nothing precluding a direct appeal of the

state court convictions, and a successful appeal

would clearly satisfy the favorable termination

requirements under Heck.” Walker v. Munsell, No.

06-867-JJB-SCR, 2007 WL 3377202, at * 4n. 8 (M.D.

La. Oct. 1, 2007); App. C to Petitioner's Pet. Cert.

22a.

While there may be a split in the circuits

regarding whether Heck applies to a habeas

17 See supra note 14.

25

ineligible plaintiff, resolution of that issue is

unnecessary to the outcome of this case because

Plaintiff has other procedural means of challenging

his conviction. See Vickers v. Donahue, 137 Fed.

Appx. 285 (11th Cir. 2005) (declining to decide the

issue because the plaintiff was not without remedy

to seek relief from his sentence of imprisonment, as

he could have appealed the order imposing that

sentence); Baker v. City of Hollywood, No. 08-60294-

CIV, 2008 WL 2474665 (S.D. Fla. June 17, 2008)

(even though a habeas corpus action was unavailable

to the plaintiff, the court did not have to decide

whether there was an exception to Heck because

plaintiff was not without an avenue to seek relief

from his conviction).

The plain language of Heck provides several

means by which a plaintiff may satisfy the favorable

termination requirement. The favorable termination

requirement may be satisfied by showing that the

conviction or sentence has been: (1) reversed on

direct appeal; (2) expunged by executive order, (3)

declared invalid by a state tribunal authorized to

make such determination, (4) or called into question

by a federal court's issuance of a writ of habeas

corpus. Heck, 512 U.S. 477, 486-87. Thus the mere

unavailability of the federal writ of habeas corpus

(which is merely one of the four methodologies listed

in Heck) does not affect Heck’s applicability as long

as, like in this case, plaintiff has another state law

remedy available to call into question the

conviction/sentence. Battle v. Marquardt, No. CV. A.

26

03-1062, 2006 WL 1073068, at *2 (W.D. Pa. April 21,

2006).

In Randell v. Johnson, 227 F.3d 300, 301 (5th

Cir. 2000), the Fifth Circuit applied Heck’s

“favorable termination” requirement to a non

custodial plaintiffs § 1983 complaint that challenged

his extended sentence because the plaintiff failed to

show other “procedural vehicles” were lacking.'®

Likewise in Hassler v. Carson County, 111 Fed.

Appx. 728, at * 1 (5th Cir. 2004), the court found the

Heck doctrine applied to a former prisoner who was

habeas ineligible because the prisoner failed to show

other “procedural vehicle[s]” were lacking. Here as

the district court correctly recognized “there is

nothing precluding a direct appeal of the state court

convictions, and a successful appeal would clearly

satisfy the favorable termination requirements

under Heck.” Walker v. Munsell, No. 06°867-JJB-

SCR, 2007 WL 3377202, at * 4 n. 8 (M.D. La. Oct. 1,

2007); App. C to Petitioner’s Pet. Cert. 22a.

Plaintiff misconstrues Heck, 512 U.S. 477, by

disregarding the existence of post-custody state-law

18 Recognizing the concurring and dissenting opinions in

Spencer v. Kemna, 523 U.S. 1 (1998), would relax Heck's

universal favorable termination requirement for plaintiffs who

have no procedural vehicle to challenge their conviction. The

Randel] court found no need to relax the Heck doctrine since

Randell had not shown that such a procedural vehicle is

lacking; he spoke only of inability to obtain habeas relief. /d.

at 301.

27

remedies. Although Justice Souter recognized there

are no federal judicial remedies for a person wrongly

convicted in state court who is no longer in custody,

there are such remedies in state law. The Heck

majority responded to Justice Souter’s concurrence

by noting that the favorable termination

requirement is “not rendered inapplicable by the

fortuity that a convicted criminal is no longer

incarcerated.” Jd. at 410 n. 10. The Heck majority

admits that § 1983 will not provide a remedy in all

cases. Jd. Thus, in responding to Justice Souter, the

Heck majority simply made clear that a released

prisoner must demonstrate, by some appropriate

means, that his conviction has been invalidated prior

to the institution of his § 1983 damages action.

Furthermore, a federal forum is also not

required to satisfy the favorable termination

requirement. In Withrow v. Williams, Justice Scalia

attacked the theory that “a federal forum must be

afforded for every federal claim of a state criminal

defendant.” Withrow, 507 U.S. 680, 721 (1993)

(Scalia, J., concurring). Such a notion is contrary to

the very structure of the federal judiciary:

It would be a strange constitution that

regards state courts as _ second-rate

instruments for the vindication of federal

rights and yet makes no mandatory provision

for lower federal courts (as our Constitution

does not). And it would be an unworkable

constitution that requires redetermination in

28

federal courts of all issues of pervasive federal

constitutional law that arise in state-court

litigation.

Id. at 721. For these reasons the lower courts

properly applied Heck’s bar to Plaintiff despite his

inability to obtain habeas relief.

III. The District Court Did Not Abuse Its

Discretion When It Refused To Certify Its

Dismissal of Plaintiffs Excessive Force Claim

For Immediate Appeal Under Federal Rule Of

Civil Procedure 54(b)

The lower courts properly found immediate

appeal of the portion of the district court’s ruling

dismissing plaintiffs excessive force claim did not

warrant the use of the court’s discretionary power

under Fed. R. Civ. P. 54(b) to provide a remedy in

the “infrequent harsh case.” Notes of the Advisory

Committee on Fed. R. Civ. P. 54 concerning 1946

amendments: Jasmin v. Dumas, 726 F.2d 242, 244

(5th Cir. 1984).

Rule 54(b) certification is warranted only upon

the district court’s “express determination that there

is no just reason for delay and upon an express

direction for entry of judgment.” Fed. R. Civ. P.

54(b). The court weighs “the inconvenience and costs

of piecemeal review on the one hand and the danger

of denying justice by delay on the other.” Road

Sprinkler Fitters Local Union vy. Continental

29

Sprinkler Co., 967 F.2d 145, 148 (5th Cir. 1992)

quoting Dickinson v. Petroleum Conversion Corp.,

338 U.S. 507, 511 (1950). This analysis also

considers whether the claims under review are

separable from those that were not decided by the

district court and whether the nature of claims

decided are such that the same issues will not have

to be decided again in the event of a subsequent

appeal. Curtiss-Wright Corp. v. General Elec. Co.,

446 U.S. 1, 8 (1980).

In this case the inconvenience of piecemeal

appeals far outweighed the possibility of delaying

Plaintiffs appeal of the district court’s dismissal of

his excessive force claim. Immediate appeal of

Plaintiffs excessive force claim would have been an

inefficient use of judicial sources and required

Defendants to incur unnecessary duplicative

expenses. Thus, the district court’s denial of

Plaintiffs motion to certify was within the court’s

discretion under Fed. R. Civ. P. 54(b), and the Fifth

Circuit correctly affirmed that decision.

In addition, any argument that the district

court erred by dismissing the excessive force claim

with prejudice “until Heck conditions are satisfied” is

unavailing because Plaintiff has failed to show his

conviction has been invalidated or called into

question. See Heck v. Humphrey, 512 U.S. 477

(1994); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir.

1994); Stephenson v. Reno, 28 F.3d 26, 27 (5th

Cir.1994); Johnson v. McElveen, 101 F.3d 423 (Sth

30

Cir. 1996); DeLeon v. City of Corpus Christi, 488

F.3d 649 (5th Cir. 2007). In Boyd v. Biggers, 31 F.3d

279, 284 (5th Cir.1994), the court squarely held that

it was not error to dismiss a complaint pursuant to

Heck with prejudice. A plaintiffs claim is dismissed

with prejudice under Heck because he has not

satisfied the Heck requirements and he has no cause

of action on his damage claims. Johnson v.

McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

Additionally, the Supreme Court’s recent

decision in Wallace v. Kato, 127 S. Ct. 1091 (2007),

has no effect on the district court’s dismissal of this

case. In Wallace, the Court made clear that Heck

does not bar “an action which would impugn an

anticipated future conviction...” /d. at 1097

[Emphasis added]. In fact the Wallace Court

specifically held: “If the plaintiff is ultimately

convicted, and if the civil suit would impugn that

conviction, Heck will require dismissal; otherwise,

the civil action will proceed, absent some other bar to

suit.” Wallace, 127 S. Ct. at 1098. Since Plaintiff has

been convicted, and his conviction squarely

challenges his conviction the lower courts correctly

dismissed Plaintiffs claims as barred by Heck.

Heck, 512 U.S. 477 (1994).19

31

CONCLUSION

The district court's judgment dismissing

Petitioner's excessive force and malicious

prosecution claims were properly affirmed by the

Fifth Circuit. Additionally, the Fifth Circuit

correctly found that the district court did not abuse

its discretion in declining to certify its dismissal of

Petitioner's excessive force claim for immediate

appeal under Federal Rule of Civil Procedure 54(b).

Because the Petitioner fails to show

compelling reasons for this Court’s review of the

Fifth Circuit’s ruling, the Petitioner’s writ of

certiorari should be denied.

Respectfully submitted,

Bradley C. Myers (#1499)

Lana D. Crump (#23707)

Counsel of Record

KEAN, MILLER,HAWTHORNE,

D’ARMOND, MCCOWAN &

JARMAN, L.L.P.

P.O. Box 3513

Baton Rouge, LA 70821

(225) 387-0999

Attorneys for Respondents Russ

Munsell, David Hooter, and

Rodney Walker

App. 1

APPENDIX

APPENDIX A- RULING ON MOTION FOR RULE

54(B) CERTIFICATION OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT

OF LOUISIANA DATED NOVEMBER 13, 2007

United States District Court, M.D. Louisiana.

Clayton Anthony WALKER, et al.

V.

Officer Russ MUNSELL, et al.

Civil Action No. 06-867-JJB-SCR.

Nov. 13, 2007.

Donna Unkel Grodner, Charlotte McDaniel

McGehee, Grodner and Associates, APLC, Baton

Rouge, LA, for Plaintiffs.

Bradley C. Myers, Katie L. Deranger, Lana Davis

Crump, Kean, Miller, Hawthorne, D'Armond, Baton

Rouge, LA, for Defendants.

RULING ON MOTION FOR RULE 54(b)

CERTIFICATION

JAMES J. BRADY, District Judge.

*1 Before the court is a motion by plaintiff for

certification (doc. 82) under Fed. Rule Civ. P. 54(b).

The motion is opposed (doc. 85). There is no need for

oral argument.

App. 2

When multiple claims and parties are involved, the

court “may direct the entry of judgment as to one or

more but fewer than all of the claims or parties only

upon an express determination that there is no just

reason for delay.”Fed. Rule Civ. P. 54(b). While

application of the rule is discretionary, there is “an

historic federal policy against piecemeal appeals.”

& W Industries, Inc. v. Formosa Plastics Corp., USA,

860 F.2d 172, 175 (5th Cir.1988). For that reason,

district courts have been instructed to use the

procedure sparingly rather than routinely. Jasmin v.

Dumas, 726 F.2d 242, 244 (5th Cir.1984).

In this case, plaintiff has failed to demonstrated that

certification under Rule 54(b) would be appropriate.

Accordingly, the motion for certification under Rule

54(b) (doc. 82) is hereby DENIED.

M.D.La.,2007.

Walker v. Munsell

Slip Copy, 2007 WL 3377270 (M.D. La.)

App. 3

APPENDIX B- 42 U.S.C. § 1983

Petitioner's claims for violation of his

constitutional rights is brought pursuant to 42

U.S.C. § 1983. Section 1983 provides:

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of anv State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a

judicial officer for an act or omission taken in such

officer's judicial capacity, injunctive relief shall not

be granted unless a declaratory decree was violated

or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia.

App. 4

APPENDIX C- U.S. CONST. AMENDMENTS

TV AND XIV

The claims of the Petitioner which were

dismissed on Respondents’ motion for summary

judgment were for alleged violations of the Fourth

and Fourteenth Amendments to the United States

Constitution. The relevant constitutional

amendments are as follows:

Amendment IV. Search and Seizure

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched,

and the persons or things to be seized.

Amendment XIV. Citizenship; privileges and

immunities; due process; equal protection:

appointment of representation; disqualification of

officers; public debt; enforcement

Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any State deprive any person of life, liberty, or

App. 5

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of

the laws.

kkk