Case: 20-30218 Document: 00516096582 Page: 1 Date Filed: 11/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 17, 2021
No. 20-30218 Lyle W. Cayce
Clerk
Timothy Gray,
Plaintiff—Appellant,
versus
Craig White, Major; John Wells, Captain;
Michelle Sullivan, Lieutenant; Lindell Slater, Lieutenant,
Defendants—Appellees.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:16-CV-689
Before Smith, Stewart, and Willett, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Timothy Gray, an inmate at the Elayn Hunt Correctional Center in
Louisiana, sued prison officials under 42 U.S.C. § 1983, asserting that they
had used excessive force against him in violation of his constitutional rights.
The district court granted summary judgment for the defendants, determin-
ing that one set of Gray’s claims is barred by Heck v. Humphrey, 512 U.S. 477
(1994), and another set is improper because Gray failed to exhaust adminis-
trative remedies as required by the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e.
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Gray appeals both determinations. For the reasons given below, we
affirm in part, vacate in part, and remand for further proceedings.
I.
Gray was in his cell when, he alleges, Captain John Wells approached
him and began verbally to antagonize him. Upon entering the cell, Wells and
Major Craig White attacked Gray without provocation, pulling him from his
bunk and beating him. Gray was taken to a shower, where, despite complying
with all orders, he was sprayed in the face and head with a chemical agent.
He was further ordered not to turn the shower on and rinse the chemical
away. He then passed out for some time. Upon coming to, he was placed in
full restraints and dragged to a transportation van. Along the way, two other
officers, Lieutenant Michelle Sullivan and Major Lindell Slater, continued to
beat him. As a result of the altercation, Gray suffered injuries, including a
broken nose and a bruised kidney.
These allegations are contradicted by the disciplinary reports pre-
pared by prison officers. According to those reports, Wells approached
Gray’s cell for a targeted search. It was apparent to the officers that Gray
was intoxicated, because there was vomit on the floor, toilet, and sink, and
Gray failed to answer questions directly. The correctional officers moved
Gray to the shower area, where he refused direct verbal orders to come to the
door to have his restraints removed and to be searched. Gray failed to comply
with orders and resisted the officers by kicking and spitting, necessitating the
use of a chemical agent to gain compliance. He also knocked a radio from
Wells’s belt in the course of his resistance, breaking it when it fell.
Based on these accounts, the prison disciplinary board found Gray
guilty of one count of “Intoxication,” three counts of “Defiance,” four
counts of “Aggravated Disobedience,” and one count of “Property Destruc-
tion.” Gray was also found guilty of having contraband (synthetic mari-
huana) in his cell. The board thus issued multiple disciplinary sanctions,
including the forfeiture of ninety days’ good-time credit. Gray filed an
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Administrative Review Procedure claim in response to the abuse he allegedly
suffered, but an investigator granted him no relief.
II.
Gray sued Wells, White, Sullivan, and Slater under § 1983, claiming
that they had subjected him to corporal punishment and excessive force while
seizing and detaining him, thus violating his Fourth, Eighth, and Fourteenth
Amendment rights. He sought money damages.
The defendants moved for summary judgment, contending that
Gray’s claims were barred by Heck, as they could not be accepted without
contradicting the findings of the prison disciplinary board. They also claimed
that Gray’s claims with regard to the beating after he left the shower must be
dismissed under the PLRA because he had not addressed those claims when
he had sought administrative relief.
The district court granted summary judgment. It reasoned that “eval-
uating Plaintiff’s claims of excessive force would require the Court to evalu-
ate the need for the force used.” Thus, the court concluded that, because
the altercations within Gray’s cell, during transport to the shower, and within
the shower had resulted in the board’s finding that Gray had committed dis-
ciplinary violations and the resulting loss of good-time credit, it was barred
by Heck from considering the alleged abuses in those contexts.
As for the beating allegedly suffered during transport away from the
showers, the court noted that Gray had not made that allegation in his initial
administrative complaint. The court therefore determined that, under the
PLRA, the claim could not be properly brought in court.
III.
On appeal, Gray challenges the summary judgment as to his Eighth
Amendment claims. He contends that none of his claims is barred by Heck
or improper under the PLRA, and he further urges that the district court
erred by relying on hearsay in the form of prison disciplinary reports. As
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summary judgment is a determination of law, we review it de novo. Austin v.
Kroger Tex., L.P., 864 F.3d 326, 328 (5th Cir. 2017) (per curiam). In doing
so, we view all facts in the light most favorable to the non-movant, here Gray,
and draw all reasonable inferences in his favor. Coleman v. Hous. Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997). We conclude that the district court
was correct in granting summary judgment with regard to those claims sub-
ject to the PLRA, but we remand for further proceedings to determine
whether any of the remaining claims are in fact barred by Heck.
IV.
Title 42 U.S.C. § 1983 allows plaintiffs to seek damages from persons
who violate their constitutional rights while acting under color of state law.
Ordinarily, use of force by a prison officer would qualify for § 1983 liability
based on the Eighth Amendment if the force was not applied “in a good faith
effort to maintain or restore discipline” but rather “maliciously and sadisti-
cally for the very purpose of causing harm.” Hudson v. McMillian, 503 U.S.
1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). But Heck
explained that a prisoner may not “seek[] damages in a § 1983 suit” if “a
judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence.” Heck, 512 U.S. at 487. Otherwise, § 1983 could be
used as a tool effectively to reverse state convictions without recourse to
more proper means, such as habeas corpus. Thus, plaintiffs convicted of
crimes may not use § 1983 to challenge the validity or duration of their
sentences. Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam).
Contrary to Gray’s repeated protestations, because Heck applies to
both the validity and the duration of the confinement, “Heck’s principle
extends to [prison] disciplinary convictions” in addition to criminal convic-
tions. Bourne v. Gunnels, 921 F.3d 484, 490 (5th Cir. 2019). “[F]or purposes
of Heck,” a “‘conviction’ . . . includes a ruling in a prison disciplinary pro-
ceeding that results in a change to the prisoner’s sentence, including the loss
of good-time credits.” Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)
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(en banc). Therefore, Heck precludes § 1983 litigation in the prison-
disciplinary-proceeding context where it would “negate [the prisoner’s]
disciplinary conviction” if negating that conviction would “affect[] the dura-
tion of his sentence by restoring his good time credits.” Bourne, 921 F.3d
at 491. Whether the plaintiff in fact seeks the restoration of good time credits,
rather than another remedy such as damages, is immaterial. Aucoin v. Cupil,
958 F.3d 379, 383 (5th Cir.), cert. denied 141 S. Ct. 567 (2020).
Conversely, Heck is not “implicated by a prisoner’s challenge that
threatens no consequence for his conviction or the duration of his sentence.”
Muhammad, 540 U.S. at 751. So, if the basis of a prisoner’s § 1983 claim “is
distinct from the basis of his disciplinary conviction,” and ruling in the pris-
oner’s favor “would not negate the prison’s finding that [the prisoner] vio-
lated its polices and was subject to disciplinary action as a result,” the Heck
bar is inapplicable. Bourne, 921 F.3d at 491.
The determination of whether an individual claim is barred by Heck is
thus “analytical and fact-intensive.” Bush v. Strain, 513 F.3d 492, 497 (5th
Cir. 2008). A court may bar only those claims whose success “require[]
negation of an element of the criminal offense or proof of a fact that is inher-
ently inconsistent with one underlying the criminal conviction.” Id.
The defendants contend that Gray’s claims of excessive force are
“intertwined” with the findings of the disciplinary board revoking his good-
time credits, so they are barred by Heck, but the inquiry is not so simple.
Decisions of this court are illustrative. In Bourne, a plaintiff had been sanc-
tioned for “[t]ampering” with a food tray slot and “[c]reating a [d]isturb-
ance,” but this court concluded that neither of those findings was incom-
patible with the plaintiff’s claim that prison officers had deployed excessive
force in response to the infractions. Bourne, 921 F.3d at 491. A finding of
excessive force would not have “negate[d] the prison’s finding that Bourne
violated its policies and was subject to disciplinary action as a result.” Id.
Similarly, in Aucoin, 958 F.3d at 381, the plaintiff alleged physical
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abuse in his prison cell, the prison showers, and the lobby. A disciplinary
board found him guilty of several disciplinary infractions, including defiance
and aggravated disobedience, while he was still within his cell. Id. We deter-
mined that Heck barred the plaintiff’s claim that the prison officers attacked
him in his cell without provocation—but did not bar those claims related to
the showers and lobby, as they were not strictly incompatible with the find-
ings of the disciplinary board. Id. at 382–83.
The record is insufficient to determine whether, or which of, Gray’s
claims are barred by Heck. The disciplinary reports list various factual find-
ings but do not state which of these findings were necessary to his convictions.
It is unclear, for instance, whether commission of “aggravated disobedi-
ence,” as defined by the disciplinary board, would still leave room for the
possibility that the officers’ use of force in response to Gray’s disobedience
violated his Eighth Amendment rights—or, to put it differently, whether “it
is possible for [Gray] to have [committed all ten rule violations] and for [the
officers’ use of force] to have” been applied maliciously and sadistically to
cause harm. Ballard v. Burton, 444 F.3d 391, 398 (5th Cir. 2006). If so, “Heck
does not bar [his] claim.” Id.
Moreover, not all of Gray’s disciplinary violations resulted in the loss
of good time credits. The reports of the disciplinary board indicate that he
forfeited ninety days’ good time as a cumulative sanction for several of his
defiance and aggravated-disobedience infractions, all of which were based on
conduct occurring within the shower, but that his sanctions for intoxication,
contraband, and property destruction instead resulted in fines and loss of
privileges. Disciplinary sanctions of this type bear on the “circumstances of
confinement” rather than that confinement’s “validity” or “duration” and
thus are not barred by Heck. Muhammad, 540 U.S. at 750.
Because it remains possible reasonably to infer the compatibility of
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Gray’s claims and those findings of the disciplinary board necessary to find
Gray guilty of the violations resulting in loss of good time, the defendants
have not met their burden for summary judgment with regard to the Heck bar.
Whether Gray’s claims within the shower are in fact barred on the basis of
the disciplinary board’s findings of defiance and aggravated disobedience
must be determined by a fact-specific analysis informed by the elements nec-
essary to establish those violations.
V.
We turn to whether Gray’s claims of abuse after leaving the shower
are improper under the PLRA. That statute precludes prisoners from assert-
ing § 1983 claims regarding prison conditions “until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). That ex-
haustion requirement is mandatory. Ross v. Blake, 136 S. Ct. 1850, 1856
(2016).
Setting the merits aside, defendants are correct that Gray waived this
argument by failing to address it before the district court. In their motion for
summary judgment, defendants asserted that, because Gray “made no men-
tion” of the allegation that defendants “‘beat him continually’ while being
transported from [shower] . . . any such allegations must be dismissed for
failure to exhaust his administrative remedies as to such claims.” But, in his
opposition to their motion for summary judgment, Gray altogether failed to
acknowledge that argument, raising it instead for the first time in his motion
for a new trial or to amend or alter the judgment.
A motion for a new trial or to alter or amend a judgment “cannot be
used to raise arguments which could, and should, have been made before the
judgment issued.” Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)
(quoting FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir. 1986)). Specifically,
when a party fails to raise an argument in opposition to a motion for summary
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judgment and instead raises it for the first time in a motion to alter or amend
judgment, that argument is waived. Indep. Coca-Cola Emps. Union of Lake
Charles, No. 1060 v. Coca-Cola Bottling Co. United, 114 F. App’x 137, 143–44
(5th Cir. 2004) (per curiam).
Assuming arguendo that the argument is not waived, it fails on the
merits. Gray relies on Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004), to
articulate what is required to meet the PLRA’s exhaustion requirements.
That case discusses the level of detail a prisoner must provide in his admin-
istrative complaint, stating that “a grievance should be considered sufficient
to the extent that the grievance gives officials a fair opportunity to address
the problem that will later form the basis of the lawsuit.” Id. at 517. Where
a complaint concerns an individual prison officer, the reviewing officials can
ordinarily expect “details regarding who was involved and when the incident
occurred, or at least other available information about the incident that would
permit an investigation of the matter.” Id.
Gray’s administrative complaint does not meet that standard. The
complaint does not describe any incident that occurred after Gray left the
shower area, nor does it refer to the time or place where any such incident
may have occurred. Instead, Gray relies on a letter from a jailhouse witness,
which claims that the witness saw Officers White and Wells “throw [Gray]
to the ground” and saw “Captain Wells repeatedly” kicking him. But that
description does not match the claim in Gray’s amended complaint. There,
he states that two other officers—Slater and Sullivan—“beat him and pulled
and dragged him to the transportation van.”
Thus, even if a third-party informant’s letter could satisfy a prisoner’s
exhaustion requirements, the letter did not (in the words of Gray’s brief)
“provide[] functional descriptions or discrete references to times and
places” regarding anything that Gray now raises in this suit. Instead, that
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letter describes a different officer kicking Gray while he was on the ground—
it does not describe two officers working in concert as they beat him and
dragged him to the van. Consequently, Gray failed to exhaust his adminis-
trative remedies for the claims of excessive force after he was taken from the
shower area. Thus, while this decision has no bearing on Gray’s ability to
bring a further administrative complaint detailing the post-shower allega-
tions, the district court was correct that, under the PLRA, those claims may
not properly be brought in court.
VI.
Gray maintains that the district court erred by considering the reports
of the disciplinary committee because those reports were inadmissible hear-
say. This court overturns evidentiary rulings only if they constitute abuses
of discretion. See, e.g., United States v. Pruett, 681 F.3d 232, 243 (5th Cir.
2012) (per curiam). “Hearsay” is a statement that (1) the declarant does not
make while testifying and (2) a party offers in evidence “to prove the truth of
the matter asserted” in the statement. Fed. R. Evid. 801(c). The disci-
plinary reports Gray challenges as hearsay were used to establish that Gray
had been found guilty of his prison-disciplinary violations. They were not
used to establish that Gray actually had done the actions recited in the
reports, but only that the report was used to assist the decision of the prison
disciplinary board. They were not, therefore, used “to prove the truth of the
matter asserted.” Id. Because they were not used “to prove the truth of the
matter asserted,” the reports were not hearsay. The district court did not err
in considering them.
***
In sum, Gray’s claims cannot be deemed to be Heck-barred because it
is impossible to know which of his factual allegations might necessarily con-
tradict his disciplinary convictions. The allegations of excessive force after
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Gray left the shower area were properly dismissed, however, because Gray
failed to exhaust his administrative remedies. In light of these conclusions,
the judgment is AFFIRMED IN PART, VACATED IN PART, and
REMANDED. We place no limitation on the matters that the court can
address and decide on remand. Nor do we suggest how the court should rule
on which claims are precluded by Heck.
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Don R. Willett, Circuit Judge, concurring in judgment alone.
I concur in the judgment for the same reasons discussed in my
concurrence today in Santos v. White, No. 20-30048. Rather than reiterate
my reservations in a footnote, however, I write separately to address the
points of departure unique to this case.1
I
The majority opinion overlooks two critical facts. First, not all of
Appellant’s disciplinary violations resulted in the loss of good-time credits.
Appellant forfeited 90 days of good-time credit as a cumulative sanction for
several of his defiance and aggravated-disobedience infractions, all of which
were based on conduct occurring within the shower. But other sanctions—
namely, those in his cell for intoxication and contraband—resulted in fines
and loss of privileges. This ameliorates any conflict between Appellant’s in-
cell account of unprovoked violence and the Appellees’ recollection. Even
had these offenses impacted his confinement, Appellant’s claim (that
Captain Wells used unlawful force) does not contradict the offenses
(intoxication and contraband) for which he was found guilty.2
Second, Appellant also alleged that Captain Wells unlawfully
assaulted him while en route to the shower. Neither the incident reports nor
any coordinate administrative violation provides a justification for this
alleged use of force of force. I therefore see no basis to conclude that this facet
1
My concerns with the Majority’s hearsay analysis are identical to those expressed
in Santos v. White, and I will not reproduce them here. Suffice it to say, I respectfully
disagree.
2
Compare Aucoin v. Cupil, 958 F.3d 379, 383 (5th Cir. 2020) (excessive force claim
could not coexist with loss of good-time credits), with Bourne v. Gunnels, 921 F.3d 484, 491
(5th Cir. 2019) (opposite, claims could co-exist), and Ballard v. Burton, 444 F.3d 391, 400–
01 (5th Cir. 2006) (same).
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of Appellant’s claim “squarely challenges [any] factual determination” of
the prison disciplinary board.3
As such, I would hold that these claims can proceed and REVERSE.
II
Neither can I join the majority opinion’s dicta related to Appellant’s
failure to exhaust his administrative remedies under the Prison Litigation
Reform Act, 42 U.S.C. § 1997e. In my view, the majority opinion makes two
factual observations that I believe are contradicted by the record.
First, the majority states that Appellant’s “[administrative]
complaint does not describe any incident that occurred after [he] left the
shower area.” Not so. After describing the in-shower allegations, Appellant’s
complaint asserted that “[e]ven while in restraints, Capt. Wells still
proceeded to beat me.” There is a world of difference between concluding
Appellant failed to describe any incident and concluding his description was
terminally vague under the PLRA. Either way, we need not walk this line if
Appellant’s failure to raise the argument at trial is dispositive—as the
majority correctly concludes.4 All to say, the majority’s characterization of
Appellant’s complaint is, at best, inapt and, at worst, inaccurate.
Second, the majority opinion suggests that the third-party informant’s
letter offers no salvation because it “describes a different officer kicking Gray
while he was on the ground” and “does not describe two officers working in
concert as they beat him and dragged him to the van.” But the record, again,
suggests otherwise. Appellant’s amended complaint states that “Lt. Sullivan
and Lt. Slater, Capt. White and Capt. Wells threw [Appellant] on the
pavement and punched, kicked and smacked him.” This is hardly
inconsistent with either (1) the informant’s letter, which stated that Officers
3
Cf. Aucoin, 958 F.3d at 383.
4
Ante at 7–8.
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White and Slater were “kicking” Appellant while he was “in full restraints”
after being taken “out of the shower . . . [to] the back door,” or (2)
Appellant’s administrative complaint, which alleged that “[e]ven while in
restraints, Capt. Wells still proceeded to beat me.”
In the end, though, the majority’s factual folly proves irrelevant given
that Appellant waived his post-shower claims by failing to address them in
his opposition to summary judgment. I therefore join only that portion of the
majority’s analysis.
* * *
I respectfully concur in judgment.
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