UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 00-30438
__________________
DOLVA WATSON,
Plaintiff-Appellant,
v.
NEW ORLEANS CITY; EMELDA T. GARRETT, Officer,
Defendants-Appellees.
______________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
99-CV-537-A
______________________________________________
October 16, 2001
Before DUHÉ and BENAVIDES, Circuit Judges, and RESTANI*, District
Judge.
PER CURIAM:**
Plaintiff Dolva Watson (“Watson”) appeals the district court’s
grant of judgment as a matter of law against her after a jury
returned a verdict in her favor. The district court held that her
suit under 42 U.S.C. § 1983 for excessive force by defendant police
*
Judge, U.S. Court of International Trade, sitting by
designation.
**
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that this opinion should not be published and is not precedent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.
officer Emelda Garrett (“Officer Garrett”) was barred by Heck v.
Humphrey, 512 U.S. 477 (1994).1 We affirm and reform the judgment
consistent with Heck.
I. Facts
While watching a Mardi Gras parade on February 23, 1998,
Watson crossed a barricade to retrieve a pair of beads. Officer
Garrett ordered Watson to return to the other side of the
barricade, and when she failed to comply, Officer Garrett attempted
to arrest her. By this time, however, Watson had been drinking all
afternoon and became very belligerent, using racial epithets to
address Officer Garrett. As she resisted Officer Garrett, a fight
ensued between them. Before Officer Garrett could subdue Watson
and place her under arrest, Watson sustained several injuries as
she was struck by Officer Garrett and forced to the ground. Watson
was finally removed from the scene and taken to the hospital, but
she refused treatment. When she finally arrived at the booking
station, she became involved in another altercation, this time with
a sheriff’s deputy. As a result of her actions, Watson ultimately
plead no contest to charges of resisting arrest and battery on a
police officer. She was fined $1,500 and ordered to pay an
1
The district court also stated that had it not granted
judgment as a matter of law on the basis of Heck, it would have
granted a new trial because the jury’s award, which included zero
compensatory damages but a $250 punitive damages award, was the
result of an impermissible compromise. Watson argues that the
verdict should not be set aside. We need not address the issue
because we hold that her claim is barred by Heck.
2
additional $350 in restitution.2
Watson filed suit against the City of New Orleans (“the
City”), the New Orleans Police Department (“the Police
Department”), Superintendent Richard Pennington, Officer Garrett,
Officer Elizabeth Coste (“Officer Coste”), and Officer Lewis
Richardson (“Officer Richardson”). She claimed several violations
of her constitutional rights, including unlawful seizure, due
process, excessive force, and cruel and unusual punishment. In
addition to these constitutional claims, she alleged Louisiana
state law claims of assault and battery and gross negligence. She
sought compensatory damages, punitive damages, and attorney’s fees.
In the pretrial order, the parties stipulated to Watson’s
convictions. Defendants filed a motion in limine seeking the
dismissal of Watson’s false arrest claim on the grounds that it was
barred by Heck v. Humphrey, as her convictions precluded a § 1983
false arrest claim. The district court agreed, concluding that any
determination regarding the legality of Watson’s arrest would
necessarily implicate the validity of her convictions.
The remainder of the case proceeded to a jury trial. During
Watson’s testimony on cross-examination, the defense moved for a
directed verdict as to Officer Richardson. The court took the
matter under submission, and after the completion of Watson’s case
2
Under Louisiana law, Watson’s plea of no contest constitutes
a conviction. See La. Code Crim. Proc. art 552(4).
3
in chief, the court dismissed Officers Coste and Richardson.
Watson stated that she had no objection to their dismissal. Chief
Pennington, the City, and the Police Department then moved for
judgment as a matter of law, which the court granted, holding that
there was no evidence of wrongdoing by Chief Pennington and the
City and that the Police Department was not amenable to suit. At
the conclusion of the defense’s case, Officer Garrett moved for
judgment as a matter of law on Watson’s § 1983 excessive force and
state law battery claims. The court denied the motion and
submitted the case to the jury.
The jury returned with a verdict in favor of Watson. It found
that Officer Garrett had used unconstitutionally excessive force in
arresting and detaining Watson, had acted maliciously, willfully,
and in gross disregard for Watson’s constitutional rights, and had
committed battery upon Watson in violation of state law.3 They
refused to award, however, any compensatory damages and entered
zero for both “physical injury, pain, suffering, mental anguish,
emotional distress, etc.” and “past medical expenses.” Despite the
lack of compensatory damages, the jury did award Watson $250 in
punitive damages for Officer Garrett’s violations of Watson’s
constitutional rights.
After the jury’s verdict, Officer Garrett filed a motion for
judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b). She
3
The battery claim is not a part of this appeal, as the jury
did not award any damages on the basis of that claim.
4
argued that the jury’s finding of excessive force should be
overturned in light of Heck, as Watson’s battery conviction
precluded a § 1983 claim for excessive force. Moreover, she
contended that the jury’s award of punitive damages must be
overturned, as her single punch to a person who admittedly hit,
kicked, and spit on her was not sufficiently malicious to justify
punitive damages, especially given that Watson was not awarded any
compensatory damages. The district court granted Officer Garrett’s
motion, holding that Watson’s convictions for battery on a police
officer, resisting arrest, and public intoxication barred her from
bringing her claim that Officer Garrett used excessive force in
arresting her.
II. Discussion
We review the district court's order under a de novo standard,
examining the evidence in the light most favorable to the
nonmovant. See Russell v. McKinney Hosp. Venture, 235 F.3d 219,
222 (5th Cir. 2000). Judgment as a matter of law is appropriate if
"the facts and inferences point so strongly and overwhelmingly in
favor of the moving party [that] no reasonable jurors could have
arrived at a contrary verdict." See McCoy v. Hernandez, 203 F.3d
371, 374 (5th Cir. 2000).
Watson argues on appeal that because her plea and sentence
were not admitted into evidence, the court should not have
considered them in ruling on the Rule 50(b) motion. She also
5
contends that Officer Garrett waived her argument that Watson is
estopped from bringing her cause of action because estoppel is an
affirmative defense, and Officer Garrett failed to preserve it.
Finally, she asserts that Heck should not apply because Officer
Garrett used excessive force after she had placed Watson under
arrest, and that no conflict therefore exists between her
conviction and her § 1983 claim.
Officer Garrett contends that Heck bars the excessive force
claim because it necessarily calls into question Watson’s
convictions. She points out that the pretrial order included
stipulations regarding Watson’s conviction and sentence. Moreover,
Officer Garrett argues that she did not waive her Heck defense
because the district court granted the defendants’ motion in limine
dismissing Watson’s false arrest claim and at the close of the
defense’s case, Officer Garrett moved for judgment as a matter of
law. Finally, she notes that the district court, in agreeing with
Officer Garrett’s Heck argument, did not hold that Watson’s claims
were estopped.
A. Waiver
Watson contends that the district court erred in granting
judgment as a matter of law because Officer Garrett waived her Heck
defense. Specifically, she notes that estoppel is an affirmative
defense, which is waived if not properly plead. Although Officer
Garrett’s argument that Heck bars Watson’s claim as a matter of law
6
is not technically an estoppel argument, see Heck, 512 U.S. 477,
480 n.2 (1994) (distinguishing between Heck doctrine and res
judicata), Watson’s failure to use the correct terminology has not
caused Officer Garrett any prejudice. Officer Garrett’s brief
identifies all the points in the litigation during which she claims
to have raised the Heck issue. Although these references are
insufficient to put Watson on notice that Officer Garrett intended
to rely on Heck as a bar to the excessive force claim, we note that
waivers of defenses based on grounds rooted in considerations of
state sovereignty are applied less harshly than other waivers. See
Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996)(per curiam)
(holding that federal court has discretion whether to accept a
state’s waiver of exhaustion requirement in habeas action); see
also Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999)
(recognizing applicability of doctrine to Heck defenses). Although
the district court did not explicitly indicate its reliance on this
doctrine, this omission does not prohibit us from acknowledging it.
See Mulberry Square Prods., Inc. v. State Farm Fire & Cas. Co., 101
F.3d 414, 421 (5th Cir. 1996). Accordingly, we hold that Officer
Garrett did not waive her Heck defense.
B. Heck
We now consider whether Heck operates to bar Watson’s
excessive force claim under § 1983. Heck holds that a § 1983 claim
7
“that effectively attacks the constitutionality of a conviction or
imprisonment does not accrue until that 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 issue
of a writ of habeas corpus.” Hudson v. Hughes, 98 F.3d 868, 872
(5th Cir. 1996) (quoting Heck, 512 U.S. at 486-87). In Hudson, this
Court concluded that a § 1983 plaintiff’s claim for excessive force
was barred in light of the plaintiff’s conviction for battery of an
officer. Id. The Court reasoned:
In Louisiana, self-defense is a justification defense to
the crime of battery of an officer. To make out a
justification defense, the criminal defendant charged
with battery of an officer must show that his use of
force against an officer was both reasonable and
necessary to prevent a forcible offense against himself.
Because self-defense is a justification defense to the
crime of battery of an officer, [plaintiff’s] claim that
[defendants] used excessive force while apprehending him,
if proved, would necessarily imply the invalidity of his
arrest and conviction for battery of an officer.
Watson contends that Hudson does not control the present case
because her claim is based on abuse that she suffered after she was
arrested. The district court, having reviewed the record, rejected
this argument. It stated that “the alleged excessive force
involving Officer Garrett, according to plaintiff’s own testimony,
occurred during the NOPD officers’ attempts to cuff, subdue, and
keep the plaintiff under arrest until the van picked up detainees
at the parade site and hauled the plaintiff off to Charity
8
Hospital.”
Watson disagrees with this conclusion, but she does not
provide any citations to record evidence substantiating her claim
that Officer Garrett used excessive force after her arrest. Under
Fed. R. App. P. 28(a)(9)(A), appellant’s brief must contain the
“appellant’s contentions and reasons for them, with citations to
the authorities and parts of the record on which the appellant
relies[.]” Failure to comply with Rule 28 results in abandonment of
the issue. U.S. v. Miranda, 248 F.3d 434, 443 (5th Cir. 2001).
In light of Watson’s inability to provide any support for her
conclusory assertion that her excessive force claim does not call
into question the validity of her battery conviction, we hold that
Heck bars her § 1983 excessive force claim against Officer Garrett.
Finally, Watson’s argument that there was no evidence of her
conviction need not detain us long, as it is totally without merit.
Both parties stipulated to the conviction, and it was therefore
entirely proper for the district court to consider it. See U.S. v.
Branch, 46 F.3d 440, 442 (5th Cir. 1995)(per curiam) (holding that
a party’s entry into a stipulation relieves the opposing party of
its burden to prove the fact that has been stipulated).
Accordingly, the district court did not err when it held that Heck
barred Watson’s § 1983 claim for excessive force.
III. Conclusion
The district court correctly granted judgment as a matter of
law on Officer Garrett’s Heck defense to Watson’s excessive force
claim. Nevertheless, because Heck operates merely to bar a claim
9
under § 1983 until such time as a plaintiff’s conviction is
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 issue of a writ of
habeas corpus, we reform the judgment by dismissing the case with
prejudice until such time as Watson satisfies the conditions of
Heck.
JUDGMENT OF DISMISSAL AFFIRMED AS MODIFIED
10
Watson v. New Orleans City
Combined Opinion