United States Court of Appeals,

Fifth Circuit.

No. 93-1598.

Michael WELLS, Plaintiff-Appellee,

v.

Sergeant Donald BONNER, et al., Defendants,

Sergeant Donald Bonner and Officer Kevin L. Harris, Defendants-Appellants.

Feb. 17, 1995.

Appeal from the United States District Court for the Northern District of Texas.

Before GARWOOD, JOLLY, and STEWART, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This interlocutory appeal presents the question of whether the defendant police officers are

entitled to qualified immunit y in this 42 U.S.C. § 1983 action alleging false arrest, excessive force and

malicious prosecution, all stemming from the officers' arrest of the plaint iff outside a nightclub for

disorderly conduct and resisting a search. The district court denied the defendant officers' claim for

qualified immunit

y because of disputes of material fact. The officers filed this interlocutory appeal.

We rule in the officers' favor and reverse the denial of immunit y. Based on the intervening Supreme

Court case of Heck v. Humphrey, --- U.S.

----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), we hold

that as a matter of law the plaint iff, Michael Wells, has failed to state a cognizable cla i m for false

arrest and malicious prosecution against the defendant officers because Wells's conviction for resisting

a search c o nstitutes a final judgment on the matter, which bars this civil suit. With respect to his

excessive force claim, we hold that the plaint iff has failed to show that the officers violated his clearly

established constitutional rights because he suffered no significant injury as required under the law

at the time of his arrest. Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc).

I

A

The following picture emerges from the confusing record and the contentious oral argument.In the early morning hours of May 27, 199 0, t he defendants, Dallas policemen Sergeant

Donald Bonner and Officer Kevin Harris, were working during their off-hours in their official police

uniforms as security guards for a nightclub. The nightclub owners had instructed Bonner and Harris

to guard against automobile theft and to keep clear the sidewalk entrance to the establishment, except

for patrons who were waiting for valet parking service. At approximately 2:30 a.m., the plaintiff,

Michael Wells, who a dmits that he had been drinking and taking prescription drugs, exited the

nightclub and stood on the sidewalk in front of the entrance to the club. From this point forward, the

events leading to Wells's arrest are in dispute.

B

Wells contends that he was waiting for v alet service when the defendant, Officer Harris,

approached him and directed him, without explanation, to move across the street. Wells questioned

the necessity of the move and told Officer Harris that he was waiting for valet service. Wells says

that the officer requested him t o move and t hat he refused to move for a period of four to five

minutes while awaiting his vehicle. His car arrived in the meantime. He then approached Harris to

get his name from his badge. While he was walking back to the car he told Harris that he planned to

file a complaint against him. At this point, Harris approached him, placed a hand on him, which

caused Wells to either turn or jerk back, whereupon t he o fficer grabbed him in a choke hold and

threw him to the ground.

Wells contends that it was at this point that he was arrested. Sergeant Bonner came to Officer

Harris's aid, and the policemen escorted Wells to their patrol car. While he was being searched, Wells

again threatened to file a complaint against the officers. He then was slammed against the patrol car,

his arms w ere bro ught behind him, and he was handcuffed. The twisting of his right arm, Wells

alleges, caused pain and aggravated an old injury in his shoulder. According to Wells, he was told

he was being arrested for intoxication, yet he was never tested and he was not charged with public

intoxication.

C

The defendants, Harris and Bonner, tell a different story. According to Officer Harris, Wellsnever said why he was standing on the sidewalk. Harris says that when he questioned Wells about

standing in front of the entrance to the club, Wells became irate, raised his voice, and shouted

obscenities. This conduct attracted a crowd and caused a traffic jam in t he parking lot because

passing cars slowed down to see what was happening. As he began walking to the parking lot, Wells

continued to scream obscenities, and traffic came to a halt. Because Wells was causing a disturbance,

Harris says that he approached Wells to arrest him for disorderly conduct. Either before Harris

arrested him, or during the process of the arrest or while patting him down for weapons, however,

Wells resisted violently and struck Harris. Harris then applied a neck restraint to Wells to prevent

injury to himself and to bystanders, as well as to prevent Wells's escape.

When a patron of the club alerted Sergeant Bonner to the situation, Bonner came from the

squad car to assist Harris who was on the ground struggling with Wells. Bonner says that when he

arrived, Harris released his neck hold and that both officers raised Wells from the ground using

Wells's arms and pants. They promptly escorted the struggling and cursing Wells to the patrol car.

They say that he was never slammed against the car. Bonner asserts that after Wells's left arm was

cuffed, Wells refused to give Bonner his right arm, so that Bonner forcibly had to bring Wells's right

arm to Wells's rear to cuff it. Wells was then placed in the patrol car, but he continued to struggle

while they waited for transporting officers.

II

As a result of this incident, Wells was charged with resisting a search and disorderly conduct.

The disorderly conduct charge was dropped before trial. Wells was prosecuted and convicted on the

charge of resisting a search. This conviction was upheld on appeal.

Wells subsequently filed this § 1983 action against Sergeant Bonner, Officer Harris, and the

City of Dallas. He amended his complaint to add the nightclub as a defendant. Wells claims that the

officers unconstitutionally subjected him to a false arrest, to excessive force in effecting the arrest,

and to a malicious prosecution. After some discovery, Bonner and Harris filed a motion for summary

judgment, arguing that Wells did not plead with sufficient specific it y to overcome their defense of

qualified immunity, that the force used in arresting Wells did not rise to the level of a constitutionalviolation, that probable cause existed to arrest him, that he was not maliciously prosecuted, and,

consequently, that they were entitled to a dismiss al o f t he complaint based on qualified immunity.

The district court denied the motion for summary judgment without opinion, and the police officers

now appeal.

III

In this interlocut o ry appeal, the defendant officers first argue that Wells has failed

procedurally to plead his claim in sufficient de t ail to overcome the officers' defense of qualified

immunit y, and, second, they alternatively contend that they are entitled to claim qualified immunit y

because Wells has failed to show that they violated any clearly established constitutional right. The

officers argue that there was probable cause to arrest Wells, that the force used by t hem was not

unconstitutional in the light of clearly established law as it existed at the time of the arrest, and that

the prosecution of Wells was not unconstitutional. Wells argues, to the contrary, that his pleadings

are sufficient to survive Harri s and Bo nner's motion for summary judgment. He also argues that

because material facts are at issue, the defendants' defense of qualified immunit y was properly rejected

by the district court and this appeal, raising only questions of immunity, should be dismissed.

IV

A denial of a claim of qualified immunit y is a "final decision" within the context of 28 U.S.C.

§ 1291, to the extent that the denial turns on an issue of law. M itchell v. Forsyth, 472 U.S. 511, 530,

105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). Qualified immunit y is "an i mmunity from suit rather

than a mere defe nse to liability; ... it is effectively lost if a case is erroneously permitted to go to

trial." I d. at 526, 105 S.Ct. at 2815 (emphasis in original). In analyzing the officers' claim of qualified

immunit y, we are guided by the structural analysis set out by the Supreme Court in Siegert v. Gilley,

500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) . Before we determine whether "the

constitutional right asserted by a plaint iff [was] "clearly established' at the time the defendant acted[,]"

we must determine whether the plaint iff has "asserted a violation of a constitutional right at all."

Siegert, 500 U.S. at 231, 111 S.Ct. at 1793. Thus, if it becomes evident that the plaintiff has failed

to state or otherwise to establish a claim, then the defendant is entitled to dismissal on that basis. S ee1 Wells's theories of constitutional violations do not distinguish between any act of seizure and

the act of arrest. This view is understandable and plausible in the light of the fact that seizure and

arrest occurred virtually simultaneously in this case. Moreover, no separate damages arise from

the seizure that would not be compensable under Wells's allegations that the arrest was made

without probable cause and with excessive force. id., 500 U.S. at 231-33, 111 S.Ct. at 1793-94.

We now turn to examine Wells's claims.

V

In this § 1983 action, Wells argues that his constitutional rights, under the Fourth Amendment

and the Fourteenth Amendment, respectively, we re vio lated by his arrest and his subsequent

prosecution. He challenges his arrest on the following grounds: (1) he was falsely arrested for

disorderly conduct and resisting a search because there was no probable cause; and (2) the officers

applied excessive force in his arrest and search that violated his Fourth A mendment right against

unreasonable searches and seizures, as well as his liberty interests under the Fourteenth Amendment.

Finally, he contests his prosecution, contending that he was maliciously prosecuted in violation of his

rights against unreasonable seizures under the Fourth Amendment and his liberty interests under the

Fourteenth Amendment. 1 For the reasons described below, we find that his excessive force claim is

precluded by Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc), and that his false arrest and

malicious prosecution claims are precluded by the Supreme Court's ruling in Heck v. Humphrey,

---

U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

Heck was decided after the district court denied qualified immunit y in this case. In H

eck, the

§ 1983 claim was brought by prisoner whose conviction was on appeal. The § 1983 complaint sought

money damages based upon the defendant law enforcement officials' alleged unlawful acts that had

led to the plaint iff's arrest and conviction. Although the H eck court was driven by concerns not

applicable here—the relationship between habeas corpus claims under 28 U.S.C. § 2254 and civil

rights claims under § 1983 —t he court broadly held that any § 1983 claim, which attacks the

unconstitutionality of a conviction (or imprisonment, as the case may be), 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 federal2 At the time of his arrest, Wells was charged with disorderly conduct and resisting a search.

The disorderly conduct charge was dismissed at some point before trial, although the record is

unclear as to when the dismissal occurred. Except for the initial charge and the dismissal of the

charge, the record does not reflect any prosecutorial action on the part of the state independent of

the resisting a search charge and prosecution. Consequently, the record reflects no evidence that

would support a constitutional claim against the defendants for malicious prosecution on the basis

of the disorderly conduct charge. court's issuance of a writ of habeas corpus." H eck,

--- U.S. at ----, 114 S.Ct. at 2372. The court

applied this rule further to hold that a § 1983 claim, wh ich alleges harm based upon conduct that

would imply that the conviction is invalid, does not mature until the conviction has been lawfully set

aside. I d. In emphasizing the embryonic nature of Heck's § 1983 claim, the court spoke of the claim

as "not cognizable" and proclaimed that "[w]e

... deny the existence of a [§ 1983] cause of action[,]"

id. at ----, 114 S.Ct. at 2373, so long as the conviction stands undisturbed.

More specifically to our task today of determining the maturity of Wells's § 1983 claims, Heck

tells us how we must proceed: we must consider "whether a judgment in favor of [Wells] would

necessarily imply the invalidit y of his conviction." I

d. at ----, 114 S.Ct. at 2372. Only if we determine

that holding in Wells's favor "will not demonstrate the invalidit y" of his conviction can this action be

entertained. Id. In the light of this guidance, we now examine his claims in greater detail.

A

We first address Wells's claim of malicious prosecution. The prosecution of Wells resulted

in his conviction for resisting a search. Wells argues that he was maliciously and unconstitutionally

prosecuted because the state lacked a basis in probable cause that he was guilty of the crime charged; 2

in other words, in t his § 1983 civil action, Wells seeks to prove that his criminal conviction is not

supported by probable cause. He thus collides with H eck, and the collision is fatal to his claim: the

civil judgment Wells seeks necessarily implies the invalidit y of his criminal conviction—which has not

been reversed or otherwise lawfully set aside. In short, Wells has no cognizable claim under § 1983

for malicious prosecution and his claim will never mature so long as his criminal conviction remains

undisturbed. It follows, therefore, that the defendant officers are entitled to immunity on the

malicious prosecution claim and the district court's denial of immunit y on this claim must be reversed.

B(1)

We next turn to Wells's § 1983 claim based on his arrest. First, he alleges that he was

subjected to a false arrest. He seeks to prove that his arrest lacked a basis in probable cause. It is

immediately clear that again the rationale of Heck precludes his claim of false arrest. As we have

noted earlier, Wells was arrested and charged with resisting a search and disorderly conduct. He was

duly convicted—a conviction that still stands—f o r resisting a search. Although it is true that the

defendant officers also charged Wells with disorderly conduct, and that Wells was not convicted on

that charge, these facts are insignificant in determining whether Wells presently has a § 1983 claim

for an unconstitutional arrest. The claim for false arrest does not cast its primary focus on the validity

of each individual charge; instead, we focus on the validity of the arrest. 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, Wells'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 invalidit y of Wells's conviction for resisting a search.

Heck,

--- U.S. at ----, 114 S.Ct. at 2372. Consequently, H eck dictates that his claim for false arrest

is not cognizable in the absence of the invalidation of his conviction for resisting a search, which, as

we have noted, has not occurred.

(2)

Finally, we come to Wells's claim that the police officers applied excessive force during his

arrest. As we have sufficiently amplified, under H eck a claim based upon alleged conduct that would

have the consequences of demonstrating the invalidit y of a conviction or sentence is not cognizable

under § 1983. I

d. at ----, 114 S.Ct. at 2372. "But if the district court determines that the plaint iff's

action, even if successful, will not demonstrate the invalidit y of any outstanding criminal judgment

against the plaint iff, the action should be allowed to proceed, in the absence of some other bar to the

suit." I d. (footnotes omitted) (emphasis in original). For t he purposes of our analy sis of the

defendant officers' motion for summary judgment, we will assume tha t a factual dispute exists

wh et her t he degree of force applied in effecting this arrest was unreasonable, and we will further3 Wells argues that the standard governing excessive force is that found in Knight v. Caldw ell,

970 F.2d 1430, 1432 (5th Cir.1992). This reasoning is misguided, however, since the incident

forming the basis of the suit occurred two years prior to the Knight decision. See Harper v.

Harris County, 21 F.3d 597 (5th Cir.1994).

4 It is also clear from the record that the alleged "choke hold" applied by the defendant officers

to Wells did not result in a significant injury under Johnson v. Morel. assume, without deciding, that a finding o f excessive force would not "imply the invalidity" of his

conviction for resisting a search. Id.

In th is immunity appeal, we must next determine whether Wells's proffered evidence

demonstrates the basis for the violation of a clearly established constitutional right. S iegert, 500 U.S.

at 231-32, 111 S.Ct. at 1793. The Fourth Amendment with its reasonableness standard governs

claims of excessive force during arrest. S pann v. Rainey, 987 F.2d 1110 (5th Cir.1993). The conduct

of the public official involved in an arrest is evaluated under the law as it existed at the time of the

incident, not current law. Pfannstiel v. City of Marion, 918 F.2d 1178, 1185 (5th Cir.1990). The

incident forming the basis of this suit occurred in 1990, when the standard for excessive force claims

was governed by Johnson v. Morel, 876 F.2d 477 (5th Cir.1989) (en banc). 3 Johnson holds that a

plaint iff can recover for a constitutional claim of excessive force only by establishing that he suffered

"(1) significant injury, which (2) r e sulted directly and only from the use of force that was clearly

excessive to the need; and the excessiveness of which was (3) objectively unreasonable." J ohnson,

876 F.2d at 480. If the plaintiff fails to prove any one of these elements, his claim also fails. Id.

Wells's claim fails to satisfy the second element of the excessive force test because his injury

did not result "directly and only from" the officers' use of force. It is true that the record reflects that

his shoulder was injured by the officers during the arrest. Wells admits, however, and other portions

of the record also reflect, that the injury was an exacerba t io n o f an o ld shoulder injury for which

Wells previously had undergone surgery. Thus, Wells's injury did not result "directly and only from"

the officer s' use of force. 4 Consequently, we hold that he has not stated a claim for violation of a

constitutional right against the defendant officers, and thus, the officers are entitled to immunit y on

the excessive force claim. Because the defendants are entitled to the defense of qualified immunity

on the claims of false arrest and excessive force, the district court's denial of immunit y based on thearrest must be reversed.

VI

We close by summarizing our holding. We have held that Wells's § 1983 claims for false

arrest and malicious prosecution are not cognizable under Heck because each of these claims imply

the invalidit

y of his conviction, which was upheld on appeal and which has not been successfully

challenged. Thus, with respect to each of these claims, he has failed to establish a constitutional claim

against the defendant o ffic ers. The officers are therefore immune from suit on these claims.

Furthermore, Wells has failed to show that the defendant o ffic ers vio lat ed his clearly established

constitutional rights in effecting his arrest because the force they used did not in flict a "significant

injury" within the meaning of Johnson v. Morel; consequently, the defendant officers are entitled to

immunit y from suit on

t his claim. In sum, the district court erred in denying immunity, and we

reverse. Because this interlocutory appeal only involved immunit y questions, we remand this case

to the district court for such further proceedings concerning the rem a ining parties as may be

appropriate and for dismissal of the complaint against the defendants, Sergeant Donald Bonner and

Officer Kevin L. Harris.

REVERSED and REMANDED.