Case: 16-30798      Document: 00513913736         Page: 1    Date Filed: 03/15/2017




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

                                                                                    FILED
                                    No. 16-30798                              March 15, 2017
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
PAMELA THOMAS, Individually and on behalf of her minor children Derrick
Jones and Ernest Jones, Jr.,

              Plaintiff - Appellant

v.

JAMES POHLMANN, in his official capacity as sheriff for the St. Bernard
Parish; UNIDENTIFIED PARTIES, in their individual and official capacities
as deputies for the St. Bernard Parish,

              Defendants - Appellees




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-4891


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Pamela Thomas, individually and on behalf of her
minor children, Derrick Jones and Ernest Jones, Jr., asserted claims against
Defendants–Appellees St. Bernard Parish Sheriff James Pohlmann and



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 16-30798
unidentified deputies for excessive force and false arrest under 42 U.S.C.
§ 1983; liability under Monell; and various violations of Louisiana state law.
The district court granted summary judgment against Thomas on the basis
that the claims were barred by Heck v. Humphrey, 

(1994).
Because the district court erred in concluding that all of the claims were barred
by Heck, we AFFIRM in part, REVERSE in part, and REMAND.
                      I. FACTS AND PROCEEDINGS
      On January 1, 2015, deputies from the St. Bernard Parish Sheriff’s Office
responded to an emergency call about a physical altercation taking place in the
parking lot of a Dollar General store in Chalmette, Louisiana. Upon arrival in
the parking lot, the deputies arrested Plaintiff–Appellant Pamela Thomas and
her two minor sons, Derrick Jones and Ernest Jones, Jr. (collectively,
Plaintiffs). Plaintiffs allege that during the arrest, deputies “slammed” Pamela
into the ground and again into the hood of her vehicle, which aggravated a
preexisting medical condition. In addition, they allege that Ernest was tased
twice while he was handcuffed. Upon arrest, Plaintiffs were taken to the St.
Bernard Parish Jail and booked. Pamela was released the next day; the record
is unclear when Ernest and Derrick were released. Plaintiffs allege that “for
an extended period of time” while in the jail, they were “without proper
maintenance, denied medical treatment and continually battered and
assaulted.”   They also allege that Derrick was “dragged inside the jail.”
Plaintiffs were charged with disturbing the peace by fighting, see La. Stat. Ann.
§ 14:103(A)(1), and Pamela and Ernest were also charged with resisting an
officer, see La. Stat. Ann. § 14:108. Plaintiffs ultimately pleaded guilty to all
relevant charges.
      On September, 30, 2015, after all guilty pleas were entered, Pamela,
individually and on behalf of Derrick and Ernest, filed the instant action
against Defendants–Appellees St. Bernard Parish Sheriff James Pohlmann, in
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                                     No. 16-30798
his official capacity, and two unidentified deputies (collectively, SBSO).
Plaintiffs raised claims under 42 U.S.C. § 1983 for excessive force and false
arrest. They also asserted a Monell claim against Pohlmann for supervisory
liability, see Monell v. Dep’t of Soc. Servs., 

(1978), as well as claims
under Louisiana state law for false arrest, excessive force, infliction of
emotional distress, battery, and assault. SBSO moved for summary judgment
on all the claims, arguing that, because Plaintiffs pleaded guilty to all charges
against them, their claims must be dismissed under Heck. 1 On July 5, 2016,
the district court granted summary judgment in part and denied it in part.
First, it granted summary judgment for SBSO with respect to Plaintiffs’ § 1983
and state law claims for false arrest. Next, its order differentiated between
Pamela’s and Ernest’s claims on the one hand and Derrick’s claims on the
other, dismissing all of the former while allowing some of the latter to proceed.
Specifically, it granted summary judgment for SBSO on Pamela’s and Ernest’s
§ 1983 and state law claims for excessive force; state law claims for assault,
battery, and inflicting emotional distress; and Monell claims, on the basis that
all of these claims were Heck-barred by virtue of Pamela’s and Ernest’s
convictions for resisting an officer. But the district court denied summary
judgment with respect to Derrick’s federal and state law claims for excessive
force; his state law claims for assault, battery, and inflicting emotional
distress; and his Monell claim, reasoning that these claims were not barred by
Heck because Derrick was only charged with disturbing the peace, not resisting
an officer.
       Following the summary judgment order, Derrick’s remaining claims
were scheduled to proceed to trial on August 22, 2016. Shortly before the trial,


       1 SBSO filed two separate motions for summary judgment, one as to Pamela’s and
Derrick’s claims and one as to Ernest’s claims. However, SBSO made the same Heck-based
argument in each motion, and the district court addressed both motions in a combined order.
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on August 11, a settlement conference was held at which all of Derrick’s
remaining claims were settled. The next day, the district court dismissed all
of Derrick’s remaining claims. In the dismissal order, the district court noted
that all other claims brought in the action had previously been dismissed on
summary judgment and those claims were not part of the settlement. On
August 15, the district court entered a final judgment dismissing all the claims
on which it granted summary judgment in its July 5 order. This timely appeal
followed.
                             II. JURISDICTION
      Before proceeding to the merits, we must first determine whether we
have jurisdiction over this appeal. Martin v. Halliburton, 

, 481
(5th Cir. 2010). With few exceptions not relevant here, our jurisdiction is
limited to “final decisions of the district courts of the United States.” 28 U.S.C.
§ 1291; see also 

. Generally, a judgment or order is
final and appealable when it resolves all claims against all parties and “leaves
nothing for the court to do but execute the judgment.” Askanase v. Livingwell,
Inc., 

, 810 (5th Cir. 1993) (quoting Coopers & Lybrand v. Livesay,

, 467 (1978)). In contesting jurisdiction, SBSO relies on procedural
issues with Plaintiffs’ notice of appeal. Plaintiffs filed two notices of appeal.
They filed their first notice of appeal on July 6, 2016, the day after the district
court’s summary judgment order.         The first notice of appeal stated that
Plaintiffs were appealing “the final judgment relating to the granting of
[SBSO’s] Motion for Summary Judgment and dismissal of [Plaintiffs’] claims
with prejudice as entered in this action on the 5th day of [July] 2016.” This
first notice of appeal was docketed as case number 16-30798 and serves as the
basis of this appeal. Plaintiffs filed their second notice of appeal on August 22,
after Derrick’s remaining claims were settled and the district court entered a
final judgment in the case. The second notice of appeal stated that Plaintiffs
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                                   No. 16-30798
were appealing “the final judgment relating to the granting of [SBSO’s] Motion
for Summary Judgment and dismissal of [Plaintiffs’] claims with prejudice as
entered in this action on the 15th day of August 2016.” This second notice of
appeal was docketed as case number 16-30949. A briefing notice was issued in
the second case, but that case was ultimately dismissed for want of prosecution
on October 17, 2016, after Plaintiffs failed to timely submit an opening brief
and record excerpts. Thus our jurisdictional inquiry is limited to considering
the adequacy of the first notice of appeal because it is the one that serves as
the basis of this appeal; the case associated with the second notice of appeal
has been dismissed.
      SBSO contests our jurisdiction over Plaintiffs’ appeal, arguing that
because Plaintiffs appealed the district court’s grant of summary judgment
before a final judgment was entered, the summary judgment order does not
constitute a final decision of the district court over which we have jurisdiction.
It is true that Plaintiff’s first notice of appeal was technically premature. The
first notice of appeal followed the district court’s July 5 summary judgment
order, but this order was not final because it neither disposed of all of Plaintiffs’
claims nor was it certified as a final judgment pursuant to Federal Rule of Civil
Procedure 54(b). See Riley v. Wooten, 

, 804 (5th Cir. 1993); Fed.
R. Civ. P. 54(b) (providing that when an action involves multiple claims or
parties, the district court “may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay”).           However, we have
previously exercised jurisdiction over a premature notice of appeal when,
subsequent to the filing of that notice of appeal and prior to our consideration,
the district court entered a final judgment disposing of all remaining parties
and claims. See Sampson v. GATX Corp., 547 F. App’x 369, 374 (5th Cir. 2013)
(per curiam); Rivera v. Salazar, 166 F. App’x 704, 705–06 (5th Cir. 2005) (per
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curiam); Boudreaux v. Swift Transp. Co., 

, 539 n.1 (5th Cir. 2005);
Young v. Equifax Credit Info. Servs., Inc., 

, 634 n.2 (5th Cir. 2002).
In Young v. Equifax Credit Information Services, we considered a notice of
appeal that appealed a district court’s order granting summary judgment as to
only one of the three 

. After the plaintiff filed the
notice of appeal, the district court issued another order granting summary
judgment as to all claims against the two remaining defendants. 

35.    We recognized that the plaintiff’s notice of appeal was “technically
premature” because the district court order on which it was based did not
dispose of all claims nor was it certified as a final judgment. 

n.2.
However, we reasoned that “because the order would have been appealable if
the district court had certified it pursuant to Rule 54(b) and because the
district court did subsequently (and prior to oral argument herein) dispose of
all remaining parties and claims, this court has jurisdiction over the appeal of
summary judgment.” 

v. Atl. Richfield Co., 

, 379
(5th Cir. 1996)).
       Similarly here, we have jurisdiction over Plaintiffs’ appeal even though
their first notice of appeal was technically premature. As in Young, the district
court could have certified its July 5 summary judgment order as a final
judgment under Rule 54(b).        And the next month, the district court did
subsequently dispose of the claims of the only remaining plaintiff—Derrick—
pursuant to a settlement agreement and entered a final judgment in the case
prior to this court’s consideration. Accordingly, although the first notice of
appeal was technically premature, we properly exercise jurisdiction over
Plaintiffs’ appeal of the district court’s July 5 summary judgment order and
proceed to consider the merits.




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                                  No. 16-30798
           III. EFFECT OF HECK ON PLAINTIFFS’ CLAIMS
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Rogers v. Bromac Title Servs., L.L.C., 

, 350 (5th Cir. 2014). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine
dispute as to a material fact exists ‘if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.’” 

(quoting Anderson v. Liberty Lobby, Inc., 

, 248 (1986)).
      To state a claim under § 1983, a plaintiff must show: (1) he or she was
deprived of a federal constitutional or statutory right or interest; (2) this
deprivation occurred under the color of state law; and (3) the defendant was
either personally involved in this deprivation or committed wrongful conduct
that is causally connected to it. James v. Tex. Collin Cty., 

, 373
(5th Cir. 2008). In Heck, the Supreme Court considered the effect of a criminal
conviction on a plaintiff’s § 1983 claim. It held that a plaintiff is not permitted
to use a § 1983 suit to challenge to validity of his or her conviction unless the
plaintiff shows that the conviction has been reversed or invalidated. 

–87; see Bush v. Strain, 

, 497 (5th Cir. 2008). Under
the holding of Heck, if a judgment in the plaintiff’s favor on a § 1983 claim
“would necessarily imply the invalidity of his [or her] conviction or sentence,”
the claim is barred. Connors v. Graves, 

, 376 (5th Cir. 2008).
Heck’s bar extends to convictions obtained through guilty pleas. See, e.g., 

We consider Heck’s effect on each of Plaintiffs’ claims below.
A. False Arrest
      Plaintiffs appeal the district court’s grant of summary judgment in
SBSO’s favor on their § 1983 false arrest claims. In order to prevail on their
false arrest claims, Plaintiffs must show that they were arrested without
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                                  No. 16-30798
probable cause. Burge v. Par. of St. Tammany, 

, 480 (5th Cir.
1999). Here, Plaintiffs were all arrested for disturbing the peace by fighting,
see La. Stat. Ann. § 14:103(A)(1), and Pamela and Ernest were also arrested
for resisting an officer, see La. Stat. Ann. § 14:108. “We have specifically noted
that false arrest . . . claims challenge the existence of probable cause and, thus,
by their essence are collateral attacks on a criminal judgment’s validity.”
Cormier v. Lafayette City-Par. Consol. Gov’t, 493 F. App’x 578, 583 (5th Cir.
2012) (per curiam). Given that Plaintiffs ultimately pleaded guilty to all the
charges for which they were arrested, allowing them to proceed on their false
arrest claim would necessarily implicate the validity of their convictions
because the same conduct that formed the probable cause for their arrest also
provided the basis for their convictions. See Wells v. Bonner, 

, 95
(5th Cir. 1995) (“[The plaintiff’s] proof to establish his false arrest claim, i.e.,
that there was no probable to arrest [for the crime for which he was ultimately
convicted],   would    demonstrate     the     invalidity   of    [the   conviction].”).
Accordingly, the district court did not err in granting summary judgment in
SBSO’s favor on Plaintiffs’ false arrest claims.
B. Excessive Force
      Plaintiffs also appeal the district court’s grant of summary judgment in
SBSO’s favor on their § 1983 excessive force claims.             We have previously
acknowledged that a claim of excessive force is not barred by Heck if it is
“temporally and conceptually distinct” from the defendant’s conviction. 

. The determination of whether an excessive force claim is
barred by Heck “is analytical and fact-intensive, requiring us to focus on
whether success on the excessive force claim requires negation of an element
of the criminal offense or proof of a fact that is inherently inconsistent with one
underlying the criminal conviction.” 

Accordingly, we will address
each of Plaintiffs’ convictions in turn.
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      1. Resisting an officer
      Pamela and Ernest were both charged with and pleaded guilty to
resisting an officer, in violation of Louisiana Revised Statute § 14:108. The
district court concluded that Pamela’s and Ernest’s excessive force claim was
barred by Heck because of these convictions. The district court reasoned that
this claim was necessarily inconsistent with Pamela’s and Ernest’s convictions
for resisting an officer because, in making this claim, they argued that they
acted innocently throughout their encounter with police.       Specifically, the
complaint alleged that Pamela and Ernest “acted in a lawful manner” “[a]t all
times during the encounter with the [police].” It is true that, in considering
whether a resisting arrest conviction is separable from an excessive force
claim, one factor we have focused on is whether the § 1983 claimant maintains
he acted lawfully throughout his encounter with the police. For example, in
Arnold v. Town of Slaughter, we found it significant that the plaintiff did not
allege that the police used excessive force after he stopped resisting arrest or
to stop his resistance, but rather he simply alleged that “he did nothing wrong
but was viciously attacked for no reason.” 100 F. App’x 321, 324 (5th Cir. 2004)
(per curiam). Because the plaintiff maintained that he acted without fault
throughout the entirety of his encounter with the police, his excessive force
claim “squarely challenge[d] the factual determination that underlies his
conviction for resisting an officer” and thus was barred by Heck. 

25; see also Daigre v. City of Waveland, 549 F. App’x 283, 286–87 (5th Cir. 2013)
(per curiam) (reasoning that because plaintiff’s “complaint contain[ed] several
statements that contradict[ed] an admission of guilt” to the charge of resisting
arrest, her excessive force claim was barred by Heck); DeLeon v. City of Corpus
Christi, 

, 656–57 (5th Cir. 2007) (concluding that because the
plaintiff’s complaint maintained his complete innocence, his excessive force


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                                 No. 16-30798
claim was “inseparable” from his conviction for aggravated assault on a police
officer).
       However, Pamela’s and Ernest’s excessive force claim is distinguishable
from those raised by the foregoing cases. Unlike the plaintiffs in those cases,
Pamela and Ernest do not allege that SBSO used excessive force merely in
effectuating their arrest. Rather, they also allege that SBSO used excessive
force while they were imprisoned in the St. Bernard Parish Jail, where they
claim they “remained for an extended period of time without proper
maintenance, [were] denied medical treatment and continually battered and
assaulted by the defendants.” In other words, Pamela and Ernest allege that
they were subjected to excessive force after they stopped resisting arrest. See

. “[A] claim that excessive force occurred after the
arrestee[s] ha[d] ceased [their] resistance [does] not necessarily imply the
invalidity of a conviction for the earlier resistance.” 

Therefore, at
least a portion of Pamela’s and Ernest’s excessive force claim is “temporally
and conceptually distinct” from their conviction for resisting an officer. 

underscored by the fact that their conviction relates to the events of
their arrest that occurred in the Dollar General parking lot, while the claim
relates to events that occurred after they were jailed in the St. Bernard Parish
Jail. Id.; see also Ballard v. Burton, 

, 400–01 (5th Cir. 2006).
Accordingly, Pamela’s and Ernest’s excessive force claim will not necessarily
undermine their convictions for resisting an officer, and thus the district court
erred in concluding this claim was barred by Heck.
       2. Disturbing the peace
       Pamela and Ernest were also charged with and pleaded guilty to
disturbing the peace by fighting, in violation of Louisiana Revised Statute




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                                        No. 16-30798
§ 14:103(A)(1). 2 But these convictions are also clearly distinct from and not
necessarily inconsistent with their excessive force claim. The disturbing the
peace convictions result from Pamela’s and Ernest’s pre-arrest conduct,
namely their engaging in a “fistic encounter” that prompted the police to be
summoned. This conduct is distinct from the conduct that serves as the basis
of their excessive force claim, which is based on events that occurred after the
arrival of the police and, in part, after they were jailed. Accordingly, Pamela’s
and Ernest’s excessive force claim is not “inherently inconsistent” with their
convictions for disturbing the peace by fighting and is not barred by Heck.

.
C. Monell claim
       Pamela and Ernest also asserted a Monell claim of supervisory liability
against Pohlmann, arguing that he “developed, implemented, enforced,
encouraged, and sanctioned de facto policies, practices and/or customs
exhibiting deliberate indifference to the civil rights and constitutional rights
of the Plaintiffs that caused the violation of such rights.” See Monell, 

. The district court granted summary judgment in Pohlmann’s favor on
this claim, reasoning that a viable Monell claim required an underlying
constitutional violation. Because Pamela’s and Ernest’s excessive force and
false arrest claims were both barred by Heck, the district court concluded that
they failed to allege any viable constitutional violation to support their Monell
claim and thus summary judgment was warranted. However, because we
conclude that Pamela’s and Ernest’s excessive force claim is not barred by
Heck, their Monell claim—to the extent it is based on the excessive force claim



       2Because the district court concluded that Pamela’s and Ernest’s excessive force claim
was barred by their convictions for resisting an officer, it did not consider whether it was also
barred by their convictions for disturbing the peace. Because we come to the opposite
conclusion, we also consider their convictions for disturbing the peace.
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                                  No. 16-30798
rather than the false arrest claim—is supported by an alleged constitutional
violation. Because this is the only reasoning the district court offered for
granting summary judgment on this claim, we must conclude that the district
court erred in granting summary judgment on Pamela’s and Ernest’s Monell
claim.
D. State law claims
      Having addressed Plaintiffs’ federal claims, we turn now to their
Louisiana state law claims for false arrest, excessive force, inflicting emotional
distress, battery, and assault.
      1. False arrest
      The district court granted summary judgment on Plaintiffs’ state law
claim for false arrest. Under Louisiana law, “[a] claim for false arrest requires
the following elements: (1) detention of the person; and (2) the unlawfulness of
the detention.” Richard v. Richard, 

, 1159 (La. 2011) (per
curiam). Here, the fact of Plaintiffs’ convictions for disturbing the peace by
fighting and Pamela’s and Ernest’s convictions for resisting an officer negate
the second element of a false arrest claim. See Restrepo v. Fortunato, 

1362, 1663 (La. Ct. App. 1990) (“As [the plaintiff] was convicted of the crime
for which he was arrested and indicted, . . . he cannot show that his detention
was unlawful.”). Plaintiffs cannot show their detention was unlawful without
challenging the validity of their convictions. Accordingly, the district court did
not err in granting summary judgment in SBSO’s favor on Plaintiffs’ state law
false arrest claim.
      2. Remaining state law claims
      The district court granted summary judgment on Pamela’s and Ernest’s
remaining state law claims after concluding that these claims were premised
on the same basis as their Heck-barred § 1983 excessive force claim and were
inconsistent with their convictions for resisting an officer. Yet, for essentially
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the same reasons as relate to Pamela’s and Ernest’s excessive force claim, these
state law claims have a separate factual basis than that of their convictions.
These claims are not based only on SBSO’s conduct in effectuating Pamela’s
and Ernest’s arrests but also on events that occurred after they were arrested
and jailed. Specifically, Pamela and Ernest allege that they were jailed “for an
extended period of time without proper maintenance, [were] denied medical
treatment and continually battered and assault by the defendants.” Because
the district court granted summary judgment on these state law claims based
on the fact that the § 1983 claim was barred, we conclude it erred in so
granting.
                             IV. CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment on Pamela’s and Ernest’s excessive force claim under
§ 1983; Monell claim; and state law claims for excessive force, infliction of
emotional distress, battery, and assault. We AFFIRM the remainder of the
district court’s order, and REMAND for further proceedings consistent with
this opinion. Each party shall bear its own costs.




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