IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30831

Summary Calendar

HAROLD JOE BLACK, 

 Plaintiff–Appellant,

v.

DON HATHAWAY; ALLEN HARRIS; MAGISTRATE JUDGE HORNSBY; 

JUDGE HICKS; J. RANSDELL KEENE; DONNA HALL; CARL TYLER; 

STEVE JOE; RICK FARRIS; APRIL WRIGHT; WILLIAM D. HALL; 

RICHARD STALDER; JAMES LEBLANC; JUDGE MARCOTTE; CHARLES 

REX SCOTT; KARELIN BARBER; MAX WELL; ASSISTANT DISTRICT 

ATTORNEY STEWART, 

 Defendants–Appellees.

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 5:14-CV-822

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 10, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-30831 Document: 00513001375 Page: 1 Date Filed: 04/10/2015
No. 14-30831

Harold Joe Black’s 42 U.S.C. § 1983 complaint was dismissed on the 

ground that the favorable-termination rule articulated in Heck v. Humphrey1

bars his suit. Black, a former prisoner, argues that the favorable-termination 

rule does not apply because he can no longer bring a petition for writ of habeas 

corpus as he is no longer in custody. We affirm.

I

Black was convicted of the distribution of cocaine in Louisiana state 

court and was released from custody in 2013. While in custody, his conviction 

was affirmed on appeal,2 and he made numerous unsuccessful applications for 

state post-conviction3 and federal habeas corpus4 relief. 

After his release from custody, Black, pro se, filed the present case. 

Although the complaint is styled as making claims under 42 U.S.C. §§ 1981, 

1982, 1983, and 1985, the operative portion of the complaint alleges only § 1983 

violations. In short, the complaint alleges numerous state and federal officials, 

as well as appointed counsel, violated Black’s constitutional rights in 

connection with Black’s arrest, trial, and efforts to obtain appellate and postconviction relief. 

1 512 U.S. 477 (1994).

2 State v. Black, 786 So. 2d 289 (La. Ct. App. 2001), writ denied, 815 So. 2d 831 (La. 

2002).

3 State ex rel. Black v. State, 135 So. 3d 632, reconsideration denied by, 148 So. 3d 573 

(La. 2014); State ex rel. Black v. State, 124 So. 3d 1094 (La. 2013); State ex rel. Black v. State, 

98 So. 3d 818 (La. 2012); State ex rel. Black v. State, 98 So. 3d 336 (La. 2012); State ex rel. 

Black v. Black, 98 So. 3d 304 (La. 2012); State ex rel. Black v. State, 42 So. 3d 400, 

reconsideration denied by, 50 So. 3d 821 (La. 2010); State ex rel. Black v. State, 25 So. 3d 793, 

reconsideration denied by, 27 So. 3d 288 (La. 2009); State ex rel. Black v. State, 15 So. 3d 1008 

(La. 2009); State ex rel. Black v. State, 977 So. 2d 927, reconsideration denied by, 979 So. 2d 

1274 (La. 2008); State ex rel. Black v. State, 904 So. 2d 738 (La. 2005); State ex rel. Black v. 

State, 904 So. 2d 725 (La. 2005); State ex rel. Black v. State, 891 So. 2d 672, reconsideration 

denied by 903 So. 2d 440 (La. 2005); State ex rel. Black v. State, 887 So. 2d 468 (La. 2004).

4 Black v. Warden, No. 10-94-P, 2013 WL 1003526 (W.D. La. Mar. 13, 2013); Black v. 

Warden, No. 11-31209 (5th Cir. June 5, 2012); Black v. Warden, No. 09-30517 (5th Cir. Jan. 

26, 2010); Black v. Warden, No. 05-30396 (5th Cir. Apr. 12, 2006).

 

 Case: 14-30831 Document: 00513001375 Page: 2 Date Filed: 04/10/2015
No. 14-30831

Black’s case was referred to a magistrate judge pursuant to 28 U.S.C. 

§ 636. The magistrate recommended that the case be dismissed with prejudice. 

The magistrate concluded that Black’s § 1983 claims were barred by the

favorable-termination rule articulated in Heck v. Humphrey. Alternatively, 

the magistrate concluded that certain claims would be barred by prosecutorial 

and judicial immunity and that other claims failed because Black’s appointed

attorneys were not state actors within the meaning of § 1983. The district 

court agreed with the magistrate’s recommendation, dismissed Black’s suit 

with prejudice, and sanctioned Black.

II

In Heck, the Supreme Court addressed the intersection between § 1983 

and the federal habeas corpus statute, 28 U.S.C. § 2254.5 The Court 

established the favorable-termination rule:

in 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. § 2254.6

However, Heck’s favorable-termination rule does not bar a § 1983 suit when 

“the plaintiff’s action, even if successful, will not demonstrate the invalidity of 

any outstanding criminal judgment against the plaintiff.”7

Heck involved a prisoner who was in custody when his § 1983 suit was 

filed.8 Thus, the prisoner in Heck had the ability to petition for a writ of habeas 

5 512 U.S. at 480.

6 Id. at 486-87

7 Id. at 487.

8 Id. at 478.

3

 

 Case: 14-30831 Document: 00513001375 Page: 3 Date Filed: 04/10/2015
No. 14-30831

corpus, and if successful, use the writ to satisfy the favorable-termination 

requirement. However, the Court stated that the favorable-termination rule 

also applied to “former state prisoners who, because they are no longer in 

custody, cannot bring postconviction challenges.”9

Black’s argument is narrow. He does not contend that his § 1983 claims 

are the type that ordinarily fall outside of Heck’s ambit,10 i.e., claims that “will 

not demonstrate the invalidity” of a plaintiff’s conviction.11 Rather, because he 

is no longer in custody and therefore cannot seek habeas relief to satisfy the 

favorable-termination rule, Black contends that the rule does not apply to his

§ 1983 claims. He contends that in Spencer v. Kemna,12 the Supreme Court 

retreated from applying the favorable-termination rule to plaintiffs who are no 

longer in custody.

In Spencer, the Court concluded that a petition for writ of habeas corpus 

challenging a revocation of parole was moot because the petitioner had 

“completed the entire term of imprisonment underlying the parole 

revocation.”13 Spencer argued, inter alia, that Heck’s requirement that he 

prevail in habeas to bring a § 1983 claim prevented his federal habeas petition 

from being moot.14 The Court rejected this argument, noting that Heck would 

9 Id. at 490 n.10 (“We think the principle barring collateral attacks—a longstanding 

and deeply rooted feature of both the common law and our own jurisprudence—is not 

rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.”).

10 See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“Although pro se briefs are 

afforded liberal construction, even pro se litigants must brief arguments in order to preserve 

them.” (citation omitted)).

11 Heck, 512 U.S. at 487.

12 523 U.S. 1 (1998).

13 Id. at 3, 18.

14 Id. at 17.

4

 

 Case: 14-30831 Document: 00513001375 Page: 4 Date Filed: 04/10/2015
No. 14-30831

not apply to bar a § 1983 claim by Spencer that “did not ‘necessarily imply the 

invalidity of’ the [parole] revocation.”15 

The majority opinion did not address the application of Heck’s favorabletermination rule to an individual, like Spencer, who had been released from 

custody.16 However, in a concurring opinion joined by four Justices, Justice 

Souter stated that “Heck did not hold that a released prisoner [must satisfy the 

favorable-termination rule to bring] a § 1983 claim,” noting that “Heck did not 

present such facts.”17 Further, in a dissent, Justice Stevens stated that “given 

the Court's holding that petitioner does not have a remedy under the habeas 

statute, it is perfectly clear, as [the concurrence] explains, that he may bring 

an action under 42 U.S.C. § 1983.”18 Therefore, five members of the Court, in

dicta, indicated that Heck’s favorable-termination rule never applies to former 

prisoners who are no longer in custody. Subsequently, in Muhammad v. Close, 

the Court stated that this issue is unsettled.19

Several circuit courts have concluded that Spencer compels the 

conclusion that Heck’s favorable-termination rule does not apply to a § 1983 

suit by a plaintiff who is no longer in custody.20 However, in Randell v. 

Johnson, this court disagreed, concluding that in Heck, the court reached an 

“unequivocal[]” holding.21 We acknowledged the “dicta from concurring and 

15 Id. at 17 (quoting Heck, 512 U.S. at 487).

16 See id.

17 523 U.S. at 19 (SOUTER, J., concurring).

18 Id. at 25 n.8 (STEVENS, J., dissenting).

19 540 U.S. 749, 752 n.2 (2004) (per curiam).

20 Cohen v. Longshore, 621 F.3d 1311, 1315-17 (10th Cir. 2010); Wilson v. Johnson, 

535 F.3d 262, 265-68 (4th Cir. 2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 

F.3d 592, 599-603 (6th Cir. 2007); Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003);

Nonnette v. Small, 316 F.3d 872, 875-77 (9th Cir. 2002); Huang v. Johnson, 251 F.3d 65, 73-

75 (2d Cir. 2001); Carr v. O’Leary, 167 F.3d 1124, 1127 (7th Cir. 1999).

21 Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (per curiam).

5

 

 Case: 14-30831 Document: 00513001375 Page: 5 Date Filed: 04/10/2015
No. 14-30831

dissenting opinions in Spencer” but “decline[d] to announce for the Supreme 

Court that it has overruled one of its decisions.”22

Black acknowledges that we rejected his argument in Randell, but 

nonetheless encourages us to allow his § 1983 suit to proceed. Under the wellsettled Fifth Circuit rule of orderliness, “one panel of our court may not 

overturn another panel’s decision, absent an intervening change in the law, 

such as by a statutory amendment, or the Supreme Court, or our en banc 

court.”23 Spencer preceded this court’s decision in Randell,24 so Spencer is not 

an intervening change in the law. 

On the other hand, Muhammad, was decided after Randell.25 We 

recognize that Muhammad comes into tension with our decision in Randell. 

Muhammad indicates that Heck’s statement that the favorable-termination 

rule applies to former prisoners is dicta; Randell, in contrast, relied on the fact 

that the Heck court reached an “unequivocal[]” holding to conclude that the 

rule that extended to former prisoners.26 But Muhammad only stated that the 

application of the favorable-termination rule after a prisoner’s release remains 

unsettled.27 Muhammad failed to effect a change in the law that would allow 

this panel to revisit the court’s decision in Randell.28 Therefore, Black’s 

argument that Heck does not bar his § 1983 suit is unavailing.

22 Id.; accord Entzi v. Redmann, 485 F.3d 998, 1003 (8th Cir. 2007); Williams v. 

Consovoy, 453 F.3d 173, 177-78 (3d Cir. 2006); Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st 

Cir. 1998). 

23 Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

24 See Spencer, 523 U.S. 1 (decided March 3, 1998); Randell, 227 F.3d 300 (decided 

September 26, 2000).

25 Muhammad v. Close, 540 U.S. 749 (2004) (per curiam).

26 Randell, 227 F.3d at 301.

27 Id. at 752 n.2.

28 Cf. Thomas v. La., Dep’t of Soc. Servs., 406 F. App’x 890, 897-98 & n.5 (5th Cir. 2010)

(citing Muhammad, 540 U.S. at 752 n.2).

6

 

 Case: 14-30831 Document: 00513001375 Page: 6 Date Filed: 04/10/2015
No. 14-30831

III

Black also argues that the courts below erred in concluding that certain 

defendants were immune from suit under § 1983 or could not be sued under 

§ 1983 because they were not state actors. Because Black’s argument that he 

can surmount Heck’s favorable-termination rule fails, we do not reach these 

issues.

* * *

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

7

 Case: 14-30831 Document: 00513001375 Page: 7 Date Filed: 04/10/2015