IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50950
Summary Calendar
RONNIE HERNANDEZ,
Plaintiff-Appellant,
versus
BILL BOLES, Deputy, Medina County, in
his individual and official capacity;
MEDINA COUNTY; WESLEY SCOTT, Sheriff,
Medina County Sheriff’s Department; JIM
JENKINS, Commissioner of Medina County
in his official capacity; STANLEY
KELLER, JR, Commissioner of Medina
County in his official capacity; ENRIQUE
SANTOS, Commissioner of Medina County,
in his official capacity; LOUIS
EHLINGER, Commissioner of Medina County,
in his official capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(94-CV-731)
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June 17, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Ronnie Hernandez appeals the district
court’s entry of judgment against him in the civil rights lawsuit
he brought against Deputy Bill Boles and several other officials of
*
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that this opinion should not be published and is not precedent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.
Medina County, Texas. Hernandez’s complaint alleged that Boles
used excessive force while arresting him for public intoxication.
Boles moved for partial summary judgment on the basis of qualified
immunity, but the district court denied the motion. The defendants
later filed a motion to dismiss, arguing that Hernandez’s suit was
barred by Heck v. Humphrey, 512 U.S. 477 (1994), and Hudson v.
Hughes, 98 F.3d 868 (5th Cir. 1996). The district court converted
the motion into a motion for summary judgment and granted the
motion.
In an appeal from an order granting summary judgment, we
review the record de novo. Duckett v. City of Cedar Park, Tex.,
950 F.2d 272, 276 (5th Cir. 1992). Summary judgment is proper
when, viewing the evidence in the light most favorable to the
nonmovant, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Amburgey
v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th Cir. 1991);
Fed. R. Civ. P. 56(c). If the moving party meets the initial
burden of establishing that there is no genuine issue, the burden
shifts to the nonmoving party to produce evidence of the genuine
issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321
(1986).
Hernandez argues that the district court erred in determining
that Heck bars a 42 U.S.C. § 1983 claim that, if successful, would
imply the invalidity of a conviction obtained by a plea of nolo
contendere. He notes that such a plea may not be used in a civil
case in Texas as an admission. See TEX. CRIM. P. CODE ANN. § 27.02(5)
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(West 1999). Hernandez’s argument misses the mark. In Heck, the
Supreme Court held that a § 1983 claim that “would necessarily
imply the invalidity” of a conviction is not cognizable until the
conviction has been set aside. 512 U.S. at 487. Whether the
conviction was obtained at trial, by a guilty plea, or by a nolo
plea is irrelevant to this inquiry. A court considering a defense
under Heck has no need to consider the plea as evidence; the court
instead looks merely to whether an implicated conviction has been
overturned. See id. at 486-87. The fact that Hernandez’s
conviction was obtained after he pleaded no contest is of no
importance under Heck. Cf. Smithart v. Towery, 79 F.3d 951, 952
(9th Cir. 1996) (applying Heck to a conviction obtained via an
Alford plea).
Hernandez also argues that the district court erred in
applying Hudson to his case. In Hudson, we held that Heck
precluded a Louisiana prisoner’s § 1983 excessive-force claim. 98
F.3d at 873. In Louisiana, we noted, self-defense is a
justification defense to a charge that a defendant battered a
police officer. Id. Hudson’s suit was barred by Heck, because any
showing that the officer had used unreasonable force would have
necessarily implied that Hudson could have prevailed at trial on a
theory of self-defense. Id.
As Hernandez concedes, self-defense is a justification defense
in Texas as well. He argues that the existence of the defense in
Texas is irrelevant because he has never attempted to attack his
conviction on the basis of self-defense. Nothing in Hudson,
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however, limits its applicability to situations in which a
defendant litigated and lost a justification defense. Rather, the
correct inquiry is whether the new § 1983 claim “would necessarily
imply the invalidity” of a valid conviction. Heck, 512 U.S. at 487
(emphasis added). As Hudson’s new claim would have necessarily
implied that he could have prevailed at trial, Heck precludes his
claim. Hernandez has not distinguished his situation from
Hudson’s.
Hernandez contends further that the district court erred in
granting summary judgment on the authority of Heck after it had
previously denied summary judgment on the basis of qualified
immunity. A denial of a motion for summary judgment will not bar
a subsequent motion based on a different legal theory. Curran v.
Kwon, 153 F.3d 481, 487 & n.11 (7th Cir. 1998). To the extent
Hernandez argues that the district court improperly made a
credibility determination when granting the second motion, he is
mistaken. The court did not make a finding of fact that Hernandez
had assaulted Boles. It held that, as a matter of law, Heck barred
consideration of Hernandez’s claim unless his conviction was set
aside.
Hernandez also suggests that in granting the second motion,
the district court inappropriately relied on Boles’s version of
events and discounted evidence that the officer improperly
retaliated against Hernandez’s assault. This argument is not
appropriate to the summary-judgment posture of the case, presenting
the question whether there is a genuine issue of material fact and
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whether the defendants were entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). Hudson will not support this
argument, as it is premised on an understanding that the
defendant’s use of force and the officer’s reaction are necessarily
interrelated; Boles’s use of force is not analytically separable
from Hernandez’s. See 98 F.3d at 873.
Hernandez argues that the district court erred in failing to
determine whether his excessive force claim implicated an
occurrence during or after arrest: If he was an arrestee, the
Fourth Amendment would govern his claim; if he was a pretrial
detainee, the Due Process Clause of the Fourteenth Amendment would
control. Brothers v. Klevenhagen, 28 F.3d 452, 455-56 (5th Cir.
1994). The undisputed facts show that Hernandez was an arrestee.
In Valencia v. Wiggins, 981 F.2d 1440 (5th Cir. 1993), we listed
three indicia of being a detainee rather than an arrestee. The
factors were whether (1) the incidents of arrest [had been]
completed,” (2) “the plaintiff had been released from the arresting
officer’s custody,” and (3) “the plaintiff had been in detention
awaiting trial.” Id. at 1443-44. Here, all three of these factors
indicate that Hernandez was still an arrestee when he was shot.
Consequently, the district court did not err in considering
Hernandez’s claim under the Fourth Amendment.
AFFIRMED.
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