No. 99-30871
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30871
Summary Calendar
TELLY J. GUILLORY,
Plaintiff-Appellant,
versus
BURL CAIN; DAVID ROSS; WILLIE R. THOMAS;
GERALD SCOTT; JIMMY JOHNSON; CHAD MENZINA, Captain;
LOUIE CALVERT, also known as Louie Calver;
RICHARD L. STALDER,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 98-CV-892-B
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April 28, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Telly J. Guillory (Guillory), Louisiana prisoner # 320441,
appeals the dismissal of his complaint under 42 U.S.C. § 1983
against defendants pursuant to 28 U.S.C. § 1915(e)(2)(B)(I) and
(ii). Because Guillory failed to object timely to the magistrate
judge's report, this court's review is limited to plain error.
See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-
29 (5th Cir. 1996) (en banc).
*
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that this opinion should not be published and is not precedent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.
No. 99-30871
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Guillory argues that his complaint was improperly dismissed
under Heck v. Humphrey, 512 U.S. 477 (1994), because he is not
seeking release from custody or challenging his conviction. Heck
does not preclude only those claims that directly challenge a
conviction. Rather, claims are precluded that "would necessarily
imply the invalidity" of a conviction. 512 U.S. at 487. We
conclude, based upon the same reasons given by the magistrate
judge, that Guillory’s claim of excessive force necessarily
implies the invalidity of Guillory’s conviction for aggravated
battery.
Guillory argues that his claim of conspiracy was
nevertheless wrongfully dismissed because it “is wholly separate
from the evolving circumstance regarding the allege [sic]
confrontation that occurred between plaintiff and David Ross in
the first incident.” This statement is contradicted by the
allegations of Guillory's amending complaint. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (stating
that this court will not allow a party to raise a claim for the
first time on appeal), cert. denied, 120 S. Ct. 982 (2000). Even
if Guillory had made this factual distinction in his amending
complaint, Guillory's conspiracy claim stems from his claim of
excessive force, and resolution of the proposed conspiracy claim
would require a resolution of the underlying excessive-force
claim, which Guillory cannot obtain under Heck. See 512 U.S. at
489.
Finally, Guillory alleged that he was beaten by correctional
officers after he had been subdued and in restraints. Guillory
No. 99-30871
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fails to argue, however, that this beating was separate and apart
from the incident for which he was arrested and therefore, not
barred by Heck. This argument would have been a valid challenge
to the magistrate judge's report, but because of the lack of
objection and appellate briefing, we will not address this claim.
See United States v. Calverley, 37 F.3d 160, 163-64 (5th Cir.
1994) (en banc); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993).
AFFIRMED.
Guillory v. Cain
Combined Opinion