IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60269
Summary Calendar
_____________________
JACK JOINER,
Plaintiff-Appellant,
versus
GARY SMITH; CITY OF MARKS, MISSISSIPPI,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(2:94-CV-073-DA)
_________________________________________________________________
(October 11, 1995)
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jack Joiner filed a civil rights suit against the City of
Marks, Mississippi and Gary Smith, a police officer employed by
the City of Marks, Mississippi, pursuant to 42 U.S.C. § 1983.
The district court granted summary judgment in favor of Smith and
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
the City. Joiner filed a timely notice of appeal. Finding no
error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 29, 1994, Jack Joiner ("Joiner") was driving his
Jeep on a road in Marks, Mississippi. Joiner stopped his vehicle
to speak with a friend. Joiner testified in his deposition that
the Jeep was "halfway in the road," but Officer Gary Smith
("Smith") testified in his deposition that Joiner's car was "in
the middle of the street." Smith stopped Joiner, and, when
Joiner exited his car, Smith asked him to put down the candy bar
that Joiner was eating. Smith explained in his deposition that
he asked Joiner to put down the candy bar so that he could
determine whether Joiner had been drinking or taking drugs. He
testified that, in his experience as a police officer, people
will often try to hide alcohol or drug use by eating something.
Joiner then asked Smith "what does my candy bar have to do with
giving me a ticket." Smith testified that Joiner refused to put
the candy bar down; Joiner stated that he "put it to his side,"
but agreed that he did not put the candy bar on the hood of the
patrol car as Smith had requested.
Smith then placed Joiner under arrest and handcuffed him.
Smith testified that he arrested Joiner because Joiner refused to
obey his order to put the candy bar down on the hood of the
patrol car. Joiner testified that Smith slapped the candy bar
out of his hand, and secured the handcuffs unnecessarily tightly,
2
causing him to scream in pain, and cutting and bruising his
hands. Joiner was charged with, and subsequently convicted in
municipal court of, obstructing traffic and failure to comply
with the order of a law enforcement officer, or disorderly
conduct. Joiner failed to appeal his convictions.
Joiner filed suit against Smith and the City of Marks,
Mississippi ("City") on May 3, 1994, seeking damages under 42
U.S.C. § 1983, and also raising a Mississippi state law
defamation claim. On July 1, 1994, Smith and the City answered
the complaint, and stated in their answer that "Gary Smith
appears to be sued in his official capacity only. If defendant
is mistaken, he pleads immunity . . . ." The parties agreed on a
scheduling order which contained a deadline for amending the
pleadings of November 21, 1994. On March 3, 1995, Smith and the
City filed a motion for summary judgment. On March 23, 1995,
Joiner filed a motion to amend his complaint to sue Smith in his
individual capacity. On April 10, 1995, the magistrate judge
denied Joiner's motion to amend as untimely. On April 14, 1995,
Joiner moved the district court to review the magistrate judge's
denial of the motion to amend. On April 17, 1995, the district
court entered a memorandum opinion which granted summary judgment
for Smith and the City on Joiner's federal claims, affirmed the
magistrate judge's refusal to allow Joiner to amend the
complaint, and dismissed Joiner's state law defamation claim
without prejudice. Final judgment was entered in favor of Smith
3
and the City on April 17, 1995. Joiner filed his notice of
appeal on April 27, 1995.
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).
First, we consult the applicable law to ascertain the material
factual issues. King v. Chide, 974 F.2d 653, 656 (5th Cir.
1992). We then review the evidence bearing on those issues,
viewing the facts and inferences to be drawn therefrom in the
light most favorable to the non-moving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994);
F.D.I.C. v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert.
denied, 114 S. Ct. 2673 (1994). Summary judgment is proper "if
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c).
Under Rule 56(c), the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
4
(1986); Norman, 19 F.3d at 1023. The burden is not on the movant
to produce evidence showing the absence of a genuine issue of
material fact. See Celotex, 477 U.S. at 323 (stating that the
moving party need not "support its motion with affidavits or
other similar materials negating the opponent's claim"). A
defendant who moves for summary judgment may rely on the absence
of evidence to support an essential element of the plaintiff's
claim. Id. at 322.
III. DISCUSSION
The district court granted summary judgment to Smith and the
City, holding that the complaint only alleges claims against
Smith in his official capacity, which are identical in treatment
to claims against the City itself, and that Joiner failed to
present any evidence establishing a municipal policy encouraging
or sanctioning unconstitutional conduct. Further, the district
court stated that even if Smith had been sued in his individual
capacity, summary judgment would have been proper because
Joiner's unlawful arrest claim is barred because his conviction
has not been invalidated, and Joiner fails to present evidence
supporting his excessive force claim. Finally, the district
court held that, because no viable federal claims survived the
summary judgment, it would decline to exercise supplemental
jurisdiction over Joiner's state law defamation claim.
In this appeal, the parties argue at great length, first,
whether Smith was sued in his individual capacity, and, if he was
5
not, whether the magistrate judge abused his discretion in
refusing to allow Joiner to amend the complaint to allege claims
against Smith in his individual capacity. We need not address
this issue, however, because, even if Smith were sued in his
individual capacity, the district court's grant of summary
judgment was proper.
A. The Unlawful Arrest Claim
The district court held that even if Joiner had alleged an
unlawful arrest claim against Smith individually, the claim would
fail under the rule of Heck v. Humphrey, 114 S. Ct. 2364 (1994),
because Joiner's conviction has not been reversed. The Supreme
Court in Heck held that:
[I]n 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, 28 U.S.C. § 2254. A claim for damages
bearing that relationship to a conviction or sentence
that has not been so invalidated is not cognizable
under § 1983.
Id. at 2372 (footnote omitted). In his brief Joiner contends
that Heck does not apply to his § 1983 action because the rule of
Heck is limited to § 1983 claims brought by state prisoners who
seek to avoid the exhaustion requirement of federal habeas
corpus.1 However, in Wells v. Bonner, 45 F.3d 90 (5th Cir.
1
Joiner also contends that Justice Scalia's opinion in Heck
speaks only for a four-judge plurality; thus, it does not express
the holding of the Court. This contention is incorrect.
6
1995), this court found that a plaintiff's unlawful arrest claim
was precluded by Heck even though the plaintiff was not "in
custody."2 Thus, to determine whether Joiner's § 1983 claim for
unlawful arrest is governed by the Heck rule, we must determine
first "whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of his conviction or sentence;
if it would, the complaint must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been
invalidated." Id.
Joiner's unlawful arrest claim is controlled by Wells. 45
F.3d at 95. Joiner alleges that his arrest constitutes an
unreasonable seizure prohibited by the Fourth Amendment because
it was for a trivial offense. This claim is equivalent to the
claim that his arrest lacked probable cause. To prove that the
arrest was an unreasonable seizure, Joiner must demonstrate that
Smith lacked probable cause to arrest for either charge, which
"Scalia, J. delivered the opinion of the Court, in which
Rehnquist, C.J. and Kennedy, Thomas, and Ginsburg, J.J. joined.
Thomas, J. filed a concurring opinion. Souter, J. filed an
opinion concurring in the judgment, in which Blackmun, Stevens,
and O'Connor, J.J., joined." Heck, 114 S. Ct. at 2368.
2
The Wells court stated:
Although the Heck court was driven by concerns not
applicable here--the relationship between habeas corpus
claims under 28 U.S.C. § 2254 and civil rights claims
under 42 U.S.C. § 1983--the court broadly held that any
§ 1983 claim, which attacks the unconstitutionality of
a conviction . . . does not accrue until that
conviction (or sentence) has been "reversed on direct
appeal . . . ."
Wells, 45 F.3d at 94 (quoting Heck, 114 S.Ct. at 2372).
7
would demonstrate the invalidity of Joiner's convictions for
obstructing traffic and for disorderly conduct. Wells, 45 F.3d
at 95. Thus, Joiner's claim for damages for an unlawful arrest
is not cognizable under § 1983 unless his convictions have been
reversed or otherwise invalidated. Id.
Joiner's claim is precluded because he failed to appeal his
convictions. Joiner was arrested for, charged with, and
convicted of obstructing traffic and disorderly conduct. Joiner
admits that he did not appeal his convictions, however, he argues
that he failed to appeal because he was misinformed by the City
Court Clerk about the cost and requirements of an appeal.3
However, assuming that Joiner's allegations are true, neither
Heck nor this circuit's cases interpreting Heck have created an
exception to the Heck rule--that a conviction must be invalidated
before a § 1983 claim arises if the claim challenges the validity
of the conviction--in situations where the plaintiff puts forth
an excuse that his failure to appeal resulted from external
circumstances or misinformation. Additionally, Joiner argues
that the municipal judge's statement during his trial that Joiner
was "wrongfully arrested" is a "de facto expungement of the
conviction." Even assuming the municipal judge made this
statement, this argument lacks merit, because the municipal judge
3
Joiner alleges that the City or Circuit Court Clerk told
him that he would have to put up $400 and obtain an affidavit
stating the reasons for the appeal to appeal his $210 fine.
Joiner claims that he later hired an attorney to pursue the
appeal, but they failed to appeal because the time period had
expired.
8
did in fact convict Joiner of obstructing traffic and disorderly
conduct. Because those convictions still stand, Joiner's
unlawful arrest claim is not cognizable under § 1983; therefore,
the district court properly granted summary judgment on that
claim.4
B. The Excessive Force Claim
The district court also held that, even if Smith had been
sued in his individual capacity, Smith was entitled to summary
judgment on Joiner's claim for excessive use of force because
Joiner "produced little evidence on this claim." On appeal,
Joiner argues that the district court erred in granting summary
judgment on this claim because he raised material fact issues
concerning whether the force used by Smith was excessive,
unreasonable, or applied for the purpose of causing pain. Smith
argues that the district court properly granted summary judgment
because Smith was entitled to handcuff Joiner as part of the
arrest--i.e., Smith did not use excessive force, and even if
Joiner could establish an excessive force claim under present
law, Smith would be entitled to qualified immunity because his
actions did not violate clearly established constitutional rights
at the time of the incident.
The Fourth Amendment governs claims of excessive force
during an arrest. Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir.
1993). To establish a claim for excessive use of force, a
4
Because we hold that Heck precludes Joiner's § 1983
claim for unlawful arrest, we need not address Smith's argument
that Joiner's unlawful arrest claim is collaterally estopped.
9
plaintiff must prove: (1) an injury; (2) which resulted directly
and only from the use of force which was excessive to the need;
and (3) that the excessiveness of the force was objectively
unreasonable. Id. "A plaintiff is no longer required to prove
significant injury to assert a section 1983 Fourth Amendment
excessive force claim." Harper v. Harris County, Tex., 21 F.3d
597, 600 (5th Cir. 1994). However, the Supreme Court has denied
constitutional protection for a "de minimis use of physical
force, provided that the use of force is not of a sort repugnant
to the conscience of mankind." Hudson v. McMillian, 503 U.S. 1,
10 (1992); Knight v. Caldwell, 970 F.2d 1430 (5th Cir. 1992).
The facts alleged by Joiner establish nothing more than the
de minimis use of force. Joiner testified at his deposition that
Smith "slapped the candy bar out of my hand" and "put my hand
behind my back and put the cuffs on and he squeezed them real
tight and I shouted and he twisted them and I shouted again and
then he told me to give him my other hand and he put it behind my
back and put the other cuffs on even tighter." Joiner testified
that after he was released, he put some alcohol on his wrists,
and then went out to a nightclub. Joiner testified that he
suffered abrasions and contusions on his wrists. Joiner's
medical report from the Quitman County Hospital, where he
apparently had his left wrist x-rayed on January 30, 1994,
revealed that he suffered a small cut on his left wrist, but no
bleeding, and stated that "[t]he bony structures of the hand and
wrist are intact. The joint spaces are well maintained. Soft
10
tissues are normal." Even construing the facts in the light most
favorable to Joiner, it is clear that the force used by Smith, as
well as the injuries suffered by Joiner, were de minimis. See
Hudson, 503 U.S. at 9 (noting that "not every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights" (internal
quotation omitted)). When making an arrest, a police officer is
entitled to handcuff the arrestee. The fact that Joiner suffered
some scrapes and bruises on his wrists from the use of handcuffs
does not make the force used excessive or objectively
unreasonable.
Because we hold that Joiner did not raise a genuine issue of
material fact supporting his excessive force claim, we need not
address Smith's qualified immunity defense. Therefore, we
conclude that the district court did not err in granting summary
judgment for Smith on Joiner's excessive force claim.
C. Liability of the Municipality
The district court granted summary judgment in favor of the
City because Joiner failed to establish a municipal policy which
caused a constitutional violation. To establish municipal
liability under § 1983, a plaintiff must demonstrate that an
official municipal policy or custom caused the constitutional
violation. Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th
Cir. 1995). In his brief, Joiner concedes that he has alleged no
facts to indicate that any policy-making officials for the City
implemented an official policy that caused his alleged
11
constitutional violation, nor has he established a persistent
pattern of conduct by city officials that caused the alleged
constitutional violation. Rather, Joiner asks this court to
change the rule of Monell v. Dept. of Social Servs. of New York,
436 U.S. 658, 690-94 (1978), reasoning that Monell has been
discredited by subsequent Supreme Court cases, such as Heck,
which emphasize that the Court will look to principles of the
common law in analyzing 42 U.S.C. § 1983. Monell established the
rule that, in a § 1983 action, liability may not be imposed on a
governmental entity on a theory of respondeat superior for the
actions of non-policymaking government employees. Id.; Brown v.
Bryan County, Tex., 53 F.3d 1410, 1418 (5th Cir. 1995). Joiner
requests that this court replace the official custom or policy
rule for municipal liability with common law respondeat superior.
We conclude that Joiner's argument lacks merit. This court
has no authority to disregard the Supreme Court's decision in
Monell. Therefore, we conclude that the district court properly
granted summary judgment in favor of the City.5
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
5
Joiner argues additionally in his original brief on
appeal that the district court abused its discretion in
dismissing without prejudice his state law claim of defamation.
In his reply brief, however, Joiner concedes that the district
court's dismissal of his state law claim was not error.
Accordingly, we affirm the district court's dismissal without
prejudice of Joiner's state law claim.
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