IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60863

DAWN MELISSA DAIGRE, 

 Plaintiff–Appellant

v.

CITY OF WAVELAND, MISSISSIPPI, a Municipal Corporation; JAMES A. 

VARNELL, Chief; HENRY BOUGANIM, Officer; CLAY NECAISE, Sergeant; 

CHRISTOPHER ALLEN, Officer; JOSHUA POYADOU, Officer, Individually 

and in their official capacities as Police Officers with the City of Waveland, 

Mississippi, 

 Defendants–Appellees

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:10-CV-568

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

PER CURIAM:*

In this 42 U.S.C. § 1983 action, Plaintiff–Appellant Dawn Daigre appeals 

the district court’s dismissal of her claims under the favorable termination rule 

set forth in Heck v. Humphrey, 512 U.S. 477 (1994). Officers responding to a 

domestic disturbance call arrested Daigre after she refused the Officers’

* 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

December 18, 2013

Lyle W. Cayce

Clerk

 

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commands to get out of bed. She subsequently pleaded guilty to resisting 

arrest. She then brought suit against the City of Waveland, its police chief, 

and the Officers for, inter alia, use of excessive force and false arrest. The 

district court granted summary judgment in favor of the defendants. For the 

reasons below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On the evening of February 6, 2010, four members of the Waveland 

Police Department—Henry Bouganim, Christopher Allen, Joshua Poyadou, 

and Clay Necaise (collectively the “Officers”)—responded to a 911 call by 

Tabatha Ann Dunkerson (“Dunkerson”). Dunkerson reported hearing a 

commotion in the upstairs apartment of Plaintiff–Appellant Dawn Melissa 

Daigre (“Daigre”) and expressed concern for Daigre in light of Daigre’s 

pregnancy.1 The officers arrived at Daigre’s apartment complex and, after 

conferring with Dunkerson, went upstairs to Daigre’s apartment.2 The 

Officers rang the doorbell and knocked on the door, but received no response. 

After waiting for several minutes, the officers kicked in the door, which was 

locked with a deadbolt, and entered the apartment. Once inside, the Officers 

conducted a protective sweep of the apartment with weapons drawn. 

Accounts differ as to how or when the Officers entered Daigre’s bedroom. 

Accepting Daigre’s account as true, the Officers entered her bedroom with guns 

1 According to Daigre, she and her boyfriend had a “verbal confrontation” in her 

apartment, after which her boyfriend left the apartment and Daigre went into her bedroom.

2 The parties dispute whether Dunkerson informed the Officers of Daigre’s pregnancy.

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and tasers drawn, and yelled at her to get down on the floor. The Officers 

subsequently lowered their weapons, although Officer Poyadou continued to 

point a taser at Daigre. Sergeant Necaise ordered her to “get the fuck out of 

bed,” to which Daigre responded “why the fuck are y’all here?”3 This exchange 

repeated several times. When Officer Poyadou approached her bed with a 

taser drawn, Daigre alleges that she said “[d]on’t do that, I’m . . . pregnant.”

Sergeant Necaise proceeded to pull the covers from her bed. Sergeant Necaise 

and another officer then attempted to pull Daigre out of bed. Daigre resisted 

by pulling back, using her body weight as leverage, initiating a kind of tug-ofwar. “[W]hen they pulled me, I pushed all of my body weight back. They pulled 

me again and I pushed all my body weight. The next time they pulled me, they 

slammed me into the wall.” As the Officers pulled Daigre out of bed, they also 

tasered her. After being tasered, Daigre fell to the floor and urinated. By this 

time, approximately ten minutes had passed from when the Officers entered 

Daigre’s apartment. 

The Officers proceeded to handcuff Daigre, and lead her into the living 

room. They refused to allow her to change out of her soiled clothes, but did 

remove the taser barbs from her back. They also contacted paramedics to 

examine her. There was no further physical contact, although Daigre and 

Sergeant Necaise exchanged several verbal insults. The Officers continued 

searching the rest of the house and found a large glass pipe in Daigre’s 

3 Although the Officers contend that they ordered Daigre to show her hands, she 

claims that her hands remained visible at all times.

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bedroom, later determined to belong to Daigre’s boyfriend, who used it to 

smoke marijuana. Daigre was arrested and charged with possession of drug 

paraphernalia, disorderly conduct, resisting arrest, and simple assault on a 

police officer. An ambulance took Daigre to a medical center where she 

underwent an ultrasound that showed the fetus appeared healthy. 

Afterwards, Daigre was taken to the Waveland Police Department, and then 

the county jail. 

On February 22, 2010, Daigre initially appeared before the Waveland 

Municipal Court, and asked for an attorney. On March 25, after an attorney 

was appointed, Daigre pleaded guilty to resisting arrest in violation of 

Mississippi Code § 97-9-73.4 Daigre was fined $612.00 and sentenced to sixty 

days in jail. Her sentence was suspended. The remaining charges were 

dismissed or passed to the inactive file.

Upon her release, and after unsuccessfully pursuing a complaint with 

the Waveland Police Department, Daigre filed the present suit on December 

15, 2010, asserting numerous federal and state law claims against the Officers

and Waveland Police Chief James Varnell, in their individual and official 

capacities, as well as the City of Waveland. Defendants–Appellees (collectively 

4 Mississippi Code § 97-9-73 provides:

It shall be unlawful for any person to obstruct or resist by force, or 

violence, or threats, or in any other manner, his lawful arrest or the 

lawful arrest of another person by any state, local or federal law 

enforcement officer, and any person or persons so doing shall be guilty 

of a misdemeanor, and upon conviction thereof, shall be punished by a 

fine of not more than Five Hundred Dollars ($500.00), or by 

imprisonment in the county jail not more than six (6) months, or both.

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the “City”) filed a motion for summary judgment on April 13, 2012, which the 

district court granted on September 24, 2012. Daigre timely appealed the 

dismissal of her § 1983 excessive-force and false-arrest claims.

II. STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo, construing the 

evidence in the light most favorable to the nonmoving party. See, e.g., United 

Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 284 (5th Cir. 2006). 

“Unsubstantiated assertions, improbable inferences, and unsupported 

speculation,” however, “are not sufficient to defeat a motion for summary 

judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th Cir. 2003). 

Summary judgment is appropriate if the moving party can show that “there is 

no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III. DISCUSSION

A. Excessive Force Claim

The district court concluded that Daigre’s excessive-force claim was 

barred under Heck v. Humphrey, 512 U.S. 477 (1994), because it was not 

separable from the facts resulting in her conviction for resisting arrest. We

affirm the district court’s dismissal of Daigre’s excessive-force claim under 

Heck solely on the basis of Daigre’s allegations, because they necessarily 

challenge the validity of her conviction for resisting arrest.

Heck prohibits a plaintiff from using a § 1983 suit to challenge the 

validity of his conviction or sentence, unless the plaintiff demonstrates that 

the conviction or sentence has in some way been reversed or invalidated. Bush 

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v. Strain, 513 F.3d 492, 497 (5th Cir. 2008). Consequently, “a plaintiff’s claim 

is Heck-barred despite its theoretical compatibility with his underlying 

conviction if specific factual allegations in the complaint are necessarily 

inconsistent with the validity of the conviction.” Id. at 498 n.14 (alteration 

omitted) (quoting McCann v. Neilsen, 466 F.3d 616, 621 (7th Cir. 2006)); see 

also Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir. 2003) (“It is irrelevant 

that [a plaintiff] disclaims any intention of challenging his conviction; if he 

makes allegations that are inconsistent with the conviction’s having been 

valid, Heck kicks in and bars his civil suit.”). This is because “factual assertions 

in pleadings are . . . judicial admissions conclusively binding on the party that 

made them.” Davis v. A.G. Edwards & Sons, Inc., 823 F.2d 105, 108 (5th Cir. 

1987) (alterations and citation omitted).

In DeLeon v. City of Corpus Christi, 488 F.3d 649 (5th Cir. 2007), this 

Court held a plaintiff’s excessive-force claims Heck-barred because the 

complaint described a single violent encounter in which the plaintiff claimed 

he was an innocent participant and necessarily challenged his aggravatedassault conviction. Id. at 656–57. By contrast, in Bush, this court found that 

a plaintiff’s excessive-force claims were not barred because, although the 

plaintiff’s complaint stated that she “[a]t no time . . . resist[ed] her arrest,”

when the phrase was read in context, it was clear that she was referring to 

conduct that occurred after she was restrained. 513 F.3d at 499 & n.18. 

Comparing the complaint in this case to the complaints in DeLeon and Bush, 

it is clear that Daigre’s excessive-force claim is subject to dismissal under Heck.

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Daigre pleaded guilty to violating Mississippi Code § 97-9-73, which 

prohibits “any person [from] obstruct[ing] or resist[ing] by force, or violence, or 

threats, or in any other manner, his lawful arrest.” However, her complaint 

contains several statements that contradict an admission of guilt under § 97-

9-73. For example, Daigre’s complaint alleges, “At no time did [Daigre] 

physically resist or assault the Defendant Officers in any way, and the force 

used against her was unnecessary, unreasonable and excessive.” The 

complaint further states that “[a]t no time during the events described . . . was 

[Daigre] . . . a threat to the safety of herself or others, or disorderly.” Bluntly, 

the complaint says, “[Daigre] committed no criminal offenses.” The complaint 

elsewhere summarizes, “[T]he Defendant Officers’ assault, arrest, and 

detainment of [Daigre] was illegal, wrongful and false, where [Daigre] had 

committed no crime, and there was no need for any amount of forceCexcessive 

or otherwiseCto be administered against her.” 

The total effect of these statements is clear: Daigre’s excessive-force 

claim is barred because she “still thinks [she is] innocent.” DeLeon, 488 F.3d 

at 657. Unlike the allegations in Bush, Daigre’s broad claims of innocence 

relate to the entire arrest encounter, and not merely a discrete part of it. See 

Bush, 513 F.3d at 499. The result is dismissal under Heck. See DeLeon, 488 

F.3d at 657; see also Whatley v. Coffin, 496 F. App’x 414, 417 (5th Cir. 2012) 

(per curiam) (unpublished) (“We need not determine whether [plaintiff’s] 

excessive force claims undermine an element of his assault of a public servant 

convictions because the facts alleged in his complaint were inherently 

inconsistent with those convictions.”); Arnold v. Town of Slaughter, 100 F. 

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App’x 321, 324 (5th Cir. 2004) (per curiam) (unpublished) (claims barred where 

plaintiff “claim[ed] that he did nothing wrong, but was viciously attacked for 

no reason”). 

B. False Arrest Claim

After reviewing the Heck doctrine, the district court summarily 

concluded that Daigre’s claim of false arrest is clearly barred. We agree.

Although “a claim of unlawful arrest, standing alone, does not 

necessarily implicate the validity of a criminal prosecution following the 

arrest,” Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995), the Heck Court 

observed that § 1983 unlawful-arrest claims cannot lie in cases in which “[a] 

state defendant is convicted of and sentenced for the crime of resisting 

arrest . . . [because] he would have to negate an element of the offense of which 

he has been convicted.” Heck, 512 U.S. at 486 n.6. Allowing Daigre to proceed 

with her false-arrest claim would necessarily attack one of the grounds for her 

arrest because she was charged with, and ultimately pleaded guilty to,

resisting arrest. As in Wells v. Bonner, 45 F.3d 90 (5th Cir. 1995):

If there was probable cause for any of the charges made—here 

either disorderly conduct or resisting a search—then the arrest

was supported by probable cause, and the claim for false arrest 

fails. Thus, [plaintiff’s] proof to establish his false arrest claim, 

i.e., that there was no probable cause to arrest either for disorderly 

conduct or for resisting a search, would demonstrate the invalidity 

of [his] conviction for resisting a search.

Id. at 95; see also Thomas v. La. Dep’t of Soc. Servs., 406 F. App’x 890, 898 (5th 

Cir. 2010) (per curiam) (unpublished) (false-arrest claim “would necessarily 

require the district court to re-evaluate the lawfulness of her arrest and 

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criminal conviction because proof of” false arrest would require proving that 

the arrest was unlawful); Cano v. Bexar Cnty., Tex., 280 F. App’x 404, 408 (5th 

Cir. 2008) (per curiam) (unpublished) (false-arrest claim Heck-barred where 

conduct that provided probable cause to arrest also formed the basis of 

conviction). For the same reason, we hold Daigre’s false-arrest claim barred 

under Heck. 

IV. CONCLUSION

For these reasons, we AFFIRM the district court’s grant of summary 

judgment in the City’s favor.

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