# United States Court of Appeals

f or the Fifth Circuit

No. 20

- 30218

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 the y had used excessive force against him in violation of his constitutional rights. The district court gr ante d summar y judgment for the defendants, deter min

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 A ct (“PLRA”), 42 U.S.C. § 1997e. United States Court of Appeals Fifth Circuit 

### FILED November 17, 2021 Lyle W. Cayce Clerk Case: 20-30218 Document: 00516096582 Page: 1 Date Filed: 11/17/2021No. 20

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2 Gray appeals both determinations. For the reasons given below, we affirm in part, vacate in part, and remand for further proceedings.

I. G ray was in his cell when, he all eges, Captain John Wells approached him and began verba lly 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 t hat 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 resis tance, 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

. ” Gra y was also found guilty of having contraband (synthetic mari

h uana) in his cell. The board thus issued multiple disciplinary sanctions, including the forfeiture of ninety days’ good

- time credit. Gray filed an Case: 20-30218 Document: 00516096582 Page: 2 Date Filed: 11/17/2021No. 20

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3 Admin istrative Review Procedure claim in res ponse to the abuse he allegedly suffered, but an investigator gr ante d him no relief.

II. Gray sued Wells , White, Sullivan , and Slate r under § 1983, claiming that the y 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 mo v ed 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 di strict court gr ante d summary judgment. It reasoned that “eval

u ating 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 , du ring 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 th at allegation in his initial administrative complaint. The court therefore determined that, under the PLRA, the claim could not be pro perly 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 Case: 20-30218 Document: 00516096582 Page: 3 Date Filed: 11/17/2021No. 20

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4 sum mary judgment is a determination of law, we review it de novo

. Austin v. Kroger Tex., L.P. , 864 F. 3 d 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 corr ect 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 sadis ti

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 judg ment 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 st ate 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. Muham mad v. Close , 540 U.S. 749, 750 (2004) (per curiam).

Con trary 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, 49 0 (5th Cir. 2019). “[F]or purposes of Heck ,” a “‘conviction’ . . . includes a ruling in a prison disciplinary pro

ceed ing that results in a change to the prisoner’s sentence, including the loss of good

- time credits.” Clarke v. Stalder , 154 F.3d 1 86, 189 (5th Cir. 1998) Case: 20-30218 Document: 00516096582 Page: 4 Date Filed: 11/17/2021No. 20

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5 (en banc). Therefore, Heck precludes § 1983 litigation in the prison

disciplinary

- proceeding context where it would “negate [the prisoner’s] disci plin ary conviction” if negating that conviction would “affect[] the dura

tion of hi s 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 threat ens 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 disciplinar y action as a result,” the Heck bar is inapplicable. Bourne , 921 F.3d at 491.

T he 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 m ay 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 “inter twined” 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 illustrat ive. 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 deplo yed 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.

Similar ly, in Aucoin , 958 F.3d at 381, the plaintiff alleged physical Case: 20-30218 Document: 00516096582 Page: 5 Date Filed: 11/17/2021No. 20

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6 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 officer s 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.

T he 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 th ese 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

— o r, 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

c ause 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 infracti ons , 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 priv ileges

. Disciplinary sanctions of this type bear on the “circumst ances 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 Case: 20-30218 Document: 00516096582 Page: 6 Date Filed: 11/17/2021No. 20

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7 Gray’s claims and those findings of the discip linary 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 t urn 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 adminis tra tive

rem e dies as are available are exhausted.” 42 U.S.C. § 1997e(a). That ex

haus tion 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 a dministrative 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 judgm ent. 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) (quot ing 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 Case: 20-30218 Document: 00516096582 Page: 7 Date Filed: 11/17/2021No. 20

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8 judgment and instead raises it for the first time in a motion to alter or amend judgment, that argument is waived. Indep. Coca

- Co la 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 (5 th 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

is trative complaint , stating that “ a grievance should be considered sufficient to the e xtent that the grievance gives officials a fair opportunity to address the problem that will later form the basis of the lawsuit. ” Id. at 517. W here a complaint concerns an individual prison officer, the reviewing officials can

or dinarily 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 complain t 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 pu lled 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) “pro vide[] func tional descrip tions or discrete referenc es to times and places” regarding any thing that Gray now raises in this suit. Instead, that Case: 20-30218 Document: 00516096582 Page: 8 Date Filed: 11/17/2021No. 20

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9 letter describes a dif

fer ent officer kicking Gray while he was on the ground

— it does not describe two officers working in concert as they beat him and dragged h im to the van. Conse quently, 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 adminis trative com plaint detailing the post

- shower allega

tions, the district court was correct that , under the PLRA, those claims may not prop erly 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

plin ary 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 w as 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 d istrict 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

tra dict his disciplinary convictions. T he allegations of excessive force after Case: 20-30218 Document: 00516096582 Page: 9 Date Filed: 11/17/2021No. 20

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10 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 lim itation 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

. Case: 20-30218 Document: 00516096582 Page: 10 Date Filed: 11/17/2021No. 20

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11 D on R. W illett , 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 m ajority 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 w ithin the shower . But other sanctions

— namely, those in his cell for intoxication and contraband

— resulted in fines and loss of priv ileges. T his ameliorates any conflict between Appellant’s in

cell account of unprovoked violence and the Appellees’ recollec tion. Even had these offenses impacted his confinement, Appellant’s claim ( that Captain Wells use d 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 provide s a justification for this alleged use of force of force. I therefore see no basis to co nclude that this facet

1 My concerns with the Majority’s hearsay anal ysis 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 go od

- 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)

. Case: 20-30218 Document: 00516096582 Page: 11 Date Filed: 11/17/2021No. 20

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12 of Appellant’s claim “squarely challenges [any] factual determination” of the prison disciplinary board. 3 As such, I would hold that these claims can procee d and REVERSE

. II Neither can I join the m ajority 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 make s t wo factual observations that I believe are contradicted by the record. First, the m ajo rity 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.” T here 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

m ajority correctly concludes. 4 All to say, th e m ajority’s characterization of Appellant’s complaint is , at best , inapt and, at worst , inaccurate

. Second, the m ajority opinion suggests that the third

- party informa nt ’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 the y beat him and dragged him to the van.” But the record , again, suggest s 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. Case: 20-30218 Document: 00516096582 Page: 12 Date Filed: 11/17/2021No. 20

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13 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 co mplaint, which alleged that “[e]ven while in restraints, Capt. Wells still proceeded to beat me.” In the end , though, th e m ajority’s factual folly prove s 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. Case: 20-30218 Document: 00516096582 Page: 13 Date Filed: 11/17/2021