Case: 22-10303 Document: 00516545122 Page: 1 Date Filed: 11/15/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 15, 2022
No. 22-10303
Lyle W. Cayce
Clerk
Shellany Ray,
Plaintiff—Appellant,
versus
Recovery Healthcare Corporation; Alcohol
Monitoring Systems, Incorporated; Glenn Tubb; The
Riverside Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-3055
Before Stewart, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Shellany Ray claims her ankle monitor malfunctioned and caused a
court in Dallas County to erroneously revoke her community supervision.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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She sued various entities for the alleged malfunction. The district court held
her claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). We affirm.
I.
A.
On January 3, 2017, Shellany Ray pleaded guilty in Dallas County to
her third DWI offense and was sentenced to ten years’ imprisonment. The
convicting court suspended her sentence, however, and instead placed her
on community supervision (probation) for seven years. 1 As a condition of her
community supervision, Ray is required to abstain from consuming alcohol.
To monitor her alcohol consumption, Ray must wear an ankle monitor
called a “SCRAM” device. The SCRAM device was manufactured by
defendant–appellee Alcohol Monitoring Systems, Incorporated (AMS).
The County contracts with defendant–appellee Recovery Healthcare
Corporation (Recovery) to provide the SCRAM devices and to monitor
probationers convicted of alcohol offenses. The device works by measuring
the amount of alcohol that evaporates through the wearer’s skin every 30
minutes. An algorithm then uses that data to approximate the wearer’s blood
alcohol content.
On Christmas Day in 2017, Ray’s monitor detected a large amount of
alcohol. Soon after, AMS and Recovery alerted Dallas County probation
officials that Ray had consumed alcohol in violation of her terms of
1
In Texas, probation is referred to as “community supervision.” Tex. Code
Crim. Proc. art. 42A.001(1) (“‘Community supervision’ means the placement of a
defendant by a court under a continuum of programs and sanctions, with conditions
imposed by the court for a specified period during which: (A) criminal proceedings are
deferred without an adjudication of guilt; or (B) a sentence of imprisonment or
confinement, imprisonment and fine, or confinement and fine, is probated and the
imposition of sentence is suspended in whole or in part.”).
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community supervision. The state court issued a warrant for Ray’s arrest.
And Dallas County prosecutors filed a motion to revoke Ray’s probation.
At the hearing on the prosecution’s revocation motion, Ray said she
didn’t consume alcohol on December 25. She explained that her husband had
sprayed Static Guard on their bed that day, which she argued must have been
the source of the spike in alcohol vapors. But AMS and Recovery insisted
that the only possible explanation for the SCRAM reading was that plaintiff
had consumed a “large quantity” of alcohol. At the end of the hearing, the
court modified Ray’s conditions of community supervision, ordering Ray to
“attend a 12-step recovery program every day for 90 days and provide proof
of attendance to her probation officer.”
Ray then hired a forensic criminalist named Jan Semenoff to evaluate
the Christmas Day SCRAM data. Semenoff’s report concluded that the
SCRAM readings were far more consistent with alcohol evaporation outside
the body (such as from Static Guard on bed sheets) than with alcohol
metabolization inside the body (such as from alcohol consumption). Ray
alleges that “after Ms. Semenoff’s report was provided to prosecutors, they
abandoned their efforts to revoke the Plaintiff’s probation.”
B.
Ray filed suit in the Northern District of Texas, alleging a bevy of state
and federal claims—including under 42 U.S.C. § 1983 for violations of her
First, Fourth, Fifth, and Fourteenth Amendment rights; under 18 U.S.C.
§ 1964 for racketeering; and under Texas state law for violations of the Texas
Deceptive Trade Practices Act as well as for negligence, gross negligence,
strict liability, fraud, and intentional infliction of emotional distress. The crux
of her claims was that the SCRAM device incorrectly reported that Ray
consumed alcohol on Christmas Day. Ray contended that, absent the
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defendants’ misconduct, the district court would not have modified her
community supervision.
The district court held that Ray’s claims were barred by Heck v.
Humphrey. Ray timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291. Our review is de novo. Ferrer & Poirot, GP v. Cincinnati Ins. Co., 36
F.4th 656, 658 (5th Cir. 2022) (per curiam).
II.
“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A complaint fails to state a claim
where it demands relief barred by Heck v. Humphrey. E.g., Crittindon v.
LeBlanc, 37 F.4th 177, 190 (5th Cir. 2022). In Heck, the Supreme Court held
that courts cannot entertain civil suits if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence.” 512
U.S. at 487. 2 That is because “civil tort actions are not appropriate vehicles
for challenging the validity of outstanding criminal judgments.” Colvin v.
LeBlanc, 2 F.4th 494, 498 (5th Cir. 2021) (quoting Heck, 512 U.S. at 486). If
a judgment for plaintiff would imply that his conviction or sentence was
invalid, the court must dismiss the claim “unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.”
Id. This is sometimes called the “favorable termination” exception. Ballard
v. Burton, 444 F.3d 391, 396 (5th Cir. 2006). Plaintiffs can demonstrate
2
Ray never disputes that a favorable judgment on any of her claims would imply
the invalidity of the January 24 modification order requiring her to attend the 12-step
recovery program. Likewise, everyone assumes the Heck analysis applies to all Ray’s
claims—state and federal—with equal force, so we assume that to be the case without
deciding it to be so.
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favorable termination by, inter alia, “prov[ing] 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.” Heck, 512 U.S. at 486–87.
Ray asserts that Heck does not apply because the state court’s
modification order was not a “conviction or sentence” for Heck purposes.
And even if it were, Ray contends the probation revocation proceeding
terminated in her favor when the prosecutors withdrew their motion to
revoke Ray’s probation. We address and reject each contention in turn.
A.
Although we have yet to articulate a definitive test for when a judicial
action constitutes a “conviction or sentence” under Heck, we have created
some guidelines. In DeLeon v. City of Corpus Christi, for example, we held that
“a deferred adjudication in Texas is a ‘sentence or conviction’ for the
purposes of Heck.” 488 F.3d 649, 652 (5th Cir. 2007). In Jackson v. Vannoy,
we held that Heck barred claims that would imply the invalidity of a successful
parole revocation proceeding. 49 F.3d 175, 177 (5th Cir. 1995) (per curiam).
And in Morris v. Mekdessie, we applied Heck to bar claims that would
invalidate the defendant’s participation in a pretrial diversion program. 768
F. App’x 299, 300–01 (5th Cir. 2019). The results in DeLeon, Jackson, and
Morris were all required by Heck’s protection of the “finality and
consistency” of criminal judgments from undue “collateral attack.” Heck,
512 U.S. at 484–85.
DeLeon is particularly instructive. Although a deferred adjudication
order is not considered a “conviction or sentence” under state law, we
nevertheless decided that Heck barred DeLeon’s civil claims. See DeLeon,
488 F.3d at 656 (“[A]lthough the Texas courts have in all circumstances held
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that these orders are not convictions, . . . [w]e conclude that a deferred
adjudication order is a conviction for the purposes of Heck.”). We did so to
vindicate the concerns that animated Heck—namely, that “civil tort actions
are not appropriate vehicles for challenging the validity of outstanding
criminal judgments.” Heck, 512 U.S. at 486. We found compelling the fact
that the deferred adjudication order bore important similarities to sentences
and convictions. Namely, the deferred adjudication order was (1) a “final
judicial act,” (2) preceded by a “judicial finding that the evidence
substantiates the defendant’s guilt,” and (3) accompanied by probation
conditions that resemble the consequences of a conviction or sentence.
DeLeon, 655–56. Allowing DeLeon to “attack” his deferred adjudication
order via § 1983 would undermine Heck and its “concerns for finality and
consistency.” Heck, 512 U.S. at 484–85.
Everyone agrees that under Heck and DeLeon, Ray cannot bring civil
claims that would imply the invalidity of her 2017 DUI conviction or her
initial probation order. (That’s true even though a probation order is not a
“sentence or conviction” under Texas law.) The parties part company,
however, over whether the January 2018 modification order requiring Ray to
attend a 12-step recovery program for 90 days is a “sentence or conviction”
under Heck.
We agree with the district court that the modification order bears the
same three similarities that DeLeon articulated and thus should be considered
a “sentence or conviction” for Heck purposes. First, the order is “final” in
the sense that it was “wholly within the state court’s discretionary power,
could not be appealed, and otherwise effectively left Ray with no other option
than to comply.” 3 Second, probation revocation hearings carry relevant
3
We reject Ray’s attempt to liken her probation revocation hearing to a
preliminary, non-final probable cause hearing. Nothing in the modification order remotely
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indicia of criminal proceedings: “the State is represented by a prosecutor,”
“the defendant does have a right to counsel,” “the hearing is before the
judge,” “formal rules of evidence do apply,” and the judge makes an
ultimate finding whether the probationer violated her terms of probation. Ex
parte Doan, 369 S.W.3d 205, 210 (Tex. Crim. App. 2012); Tex. Code
Crim. Proc. art. 42A.752(a). Finally, the modification order added
“conditions”—namely, the 12-step program—that are akin to a sentence.
Tex. Code Crim. Proc. art. 42A.752(a).
We also agree with the defendants that treating the initial probation
determination—which DeLeon held is a “conviction or sentence” under
Heck—differently than modifications to that determination would create an
artificial distinction in Heck’s otherwise cohesive framework. This argument
tracks Texas law, which considers revocation proceedings and modification
orders as extensions of the original probation order. Indeed, “any
punishment [a probationer] would receive as a result of the revocation
hearing relates back to the original offense for which [the probationer] was
placed on community supervision.” State v. Waters, 560 S.W.3d 651, 659
(Tex. Crim. App. 2018).
We hold that the state court’s modification order was a “conviction
or sentence” for purposes of Heck, and hence that case bars Ray’s claims.
suggests that the hearing was an interim probable cause determination or that the
imposition of the 12-step program was a condition of release akin to bail. Regardless of
Ray’s speculation on the motivation or understanding of the state prosecutors, the state
court itself viewed the 12-step program and the accompanying order as a “modification”
to Ray’s original terms of probation. Indeed, the modification order was titled “Order
Modifying the Conditions of Community Supervision,” and the state court declared that
“the Conditions of Community Supervision in the above numbered Cause(s) are hereby
modified by the Court.” The court even labeled the modification condition—requiring Ray
to attend the 12-step program—as condition “bb,” right where the list of conditions of
community supervision left off in the January 3, 2017 “Judgment of Conviction.”
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B.
Ray also argues that even if the modification order is a “conviction or
sentence” under Heck, she nevertheless satisfies the favorable termination
exception. Ray cites Thompson v. Clark for the proposition that “[t]o
demonstrate a favorable termination of a criminal prosecution for purposes
of . . . Fourth Amendment claim[s] under § 1983 for malicious prosecution,
a plaintiff need only show that his prosecution ended without a conviction.”
142 S. Ct. 1332, 1335 (2022). And Ray argues that the prosecutors’
withdrawal of their revocation motion is enough to demonstrate “favorable
termination” under Thompson.
That is incorrect. Even if Thompson’s holding extended beyond the
Fourth Amendment malicious prosecution context and applied to all of Ray’s
civil claims, Ray’s situation is nothing like what happened in Thompson.
There, Thompson was arrested and charged, but those “charges were
dismissed before trial,” so Thompson’s “prosecution ended without a
conviction.” Thompson, 142 S. Ct. at 1335. Here, however, the prosecution’s
revocation motion did result in a hearing (akin to the “trial” in Thompson)
where the judge evaluated the allegedly flawed SCRAM report and issued a
modification order, which we’ve already established is a “conviction or
sentence” for purposes of Heck. The prosecutors’ withdrawal of their motion
after Ray had already completed all 90 days of the 12-step program did
nothing to alter or impact the court’s decision.
Finally, Ray makes no showing or argument that her “conviction or
sentence” has otherwise 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.” Heck, 512 U.S. at 486–87. Thus, she cannot satisfy the
favorable termination exception as articulated by either Heck or Thompson.
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AFFIRMED.
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