* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

. R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-50950

Summary Calendar

RONNIE HERNANDEZ,

Plaintiff-Appellant,

versus

BILL BOLES, Deputy, Medina County, in

his individual and official capacity;

MEDINA COUNTY; WESLEY SCOTT, Sheriff,

Medina County Sheriff’s Department; JIM

JENKINS, Commissioner of Medina County

in his official capacity; STANLEY

KELLER, JR, Commissioner of Medina

County in his official capacity; ENRIQUE

SANTOS, Commissioner of Medina County,

in his official capacity; LOUIS

EHLINGER, Commissioner of Medina County,

in his official capacity,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court

for the Western District of Texas

(94-CV-731)

- - - - - - - - - -

June 17, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Ronnie Hernandez appeals the district

court’s entry of judgment against him in the civil rights lawsuit

he brought against Deputy Bill Boles and several other officials of2

Med ina County, Texas. Hernandez’s complaint alleged that Boles

used excessive force while arresting him for public intoxication.

Boles moved for partial summary judgment on the basis of qualified

immunity, but the district court denied the motion. The defendants

later filed a motion to dismiss, arguing that Hernandez’s suit was

barred by Heck v. Humphrey , 512 U.S. 477 (1994), and H udson v.

Hughes

, 98 F.3d 868 (5th Cir. 1996). The district court converted

the motion into a motion for summary judgment and granted the

motion.

In an appeal from an order granting summary judgment, we

review the record de novo. D ucke tt v. City of Cedar Park, Tex.

,

950 F.2d 272, 276 (5th Cir. 1992). Summary judgment is proper

when, viewing the evidence in the light most favorable to the

nonmovant, there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. A mburgey

v. Corhart Refractories Corp. , 936 F.2d 805, 809 (5th Cir. 1991);

Fed. R. Civ. P. 56(c). If the moving party meets the initial

burden of establishing that there is no genuine issue, the burden

shifts to the nonmoving party to produce evidence of the genuine

issue for trial. C elotex Corp. v. Catrett , 477 U.S. 317, 321

(1986).

Hernandez argues that the district court erred in determining

that Heck bars a 42 U.S.C. § 1983 claim that, if successful, would

imply the invalidity of a convictio n obtained by a plea of nolo

contendere. He notes that such a plea may not be used in a civil

case in Texas as an admission. S ee T EX

. C RIM

. P. C ODE A NN

. § 27.02(5)3

(West 1999). Hernandez’s argument misses the mark. In Heck , the

Supreme Court held that a § 1983 claim that “would necessarily

imply the invalidity” of a conviction is not cognizable until the

conviction has been set aside. 512 U.S. at 487. Whether the

convictio n was obtained at trial, by a guilty plea, or by a nolo

plea is irrelevant to this inquiry. A court considering a defense

under Heck has no need to consider the plea as evidence; the court

instead looks merely to whether an implicated conviction has been

overturned. S ee id. at 486-87. The fact that Hernandez’s

conviction was obtained after he pleaded no contest is of no

importance under Heck

. C f. Smith art v. Towery , 79 F.3d 951, 952

(9th Cir. 1996) (applying Heck to a conviction obtained via an

Alford plea).

Hernandez also argues that the district cou rt erred in

app l ying Hudson to his case. In H udson

, we held that Heck

precluded a Louisiana prisoner’s § 1983 excessive-force claim. 98

F.3d at 873. In Louisiana, we noted, self-defense is a

justification d efense to a charge that a defendant battered a

police officer. I d. Hudson’s suit was barred by H eck

, because any

showing that the officer had used unreasonable force would have

necessarily implied that Hudson could have prevailed at trial on a

theory of self-defense. Id.

As Hernandez concedes, self-defense is a justification defense

in Texas as well. He argues that the existence of the defense in

Texas is irrelevant because he has never attempted to attack his

conviction on the basis of self-defense. Nothing in H udson

,4

however, limits its applicability to situations in wh ich a

defendant litigated and lost a justification defense. Rather, the

correct inquiry is whether the new § 1983 claim “would necessarily

imply the invalidity” of a valid conviction. H eck

, 512 U.S. at 487

(emphasis added). As Hudson’s new claim would have necessarily

implied that he could have prevailed at trial, Heck precludes his

claim. Hernandez has not distinguished his situation from

Hudson’s.

Hernandez contend s further that the district court erred in

granting summary judgment on the authority of Heck after it had

previously de nied summary judgment on the basis of qualified

immunity. A denial of a motion for summary judgment will not bar

a subsequent motion based on a different legal theory. Curran v.

Kwon

, 153 F .3d 481, 487 & n.11 (7th Cir. 1998). To the extent

Her nandez argues that the district court improperly made a

credibility determina tion when granting the second motion, he is

mistaken. The court did not make a finding of fact that Hernandez

had assaulted Boles. It held that, as a matter of law, H eck barred

c onsideration of Hernandez’s claim unless his conviction was set

aside.

Hernandez also suggests that in grant ing the second motion,

the district court inapp ropriately relied on Boles’s version of

events and discounted evidence that the officer improperly

retaliated against Hernandez’s assault. This argument is not

appropriate to the summary-judgment posture of the case, presenting

the question whether there is a genuine issue of material fact and5

whether the defendants were entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). H udson will not support this

argument, as it is premised on an understanding that the

defendant’s use of force and the officer’s reaction are necessarily

interrela ted; Boles’s use of force is not analytically separable

from Hernandez’s. See 98 F.3d at 873.

Hernandez argues that the district court erred in failing to

determine whether his excessive force claim implicated an

occurre nce during or after arrest: If he was an arrestee, the

Fourth Amendment would govern his claim; if he was a pretrial

detainee, the Due Process Clause of the Fourteenth Amendment would

control. B rothers v. Klevenhagen

, 28 F.3d 452, 455-56 (5th Cir.

1994). The undisputed facts show that Hernandez was an arrestee.

In Valencia v . Wiggins , 981 F.2d 1440 (5th Cir. 1993), we listed

three indicia of being a detainee rather than an arrestee. The

factors were whether (1) the incidents of arrest [had been]

completed,” (2) “the plaintiff had been released from the arresting

officer’s custody,” and (3) “ the plaintiff had been in detention

awaiting trial.” I d. at 1443-44. Here, all three of these factors

indicate that Hernandez was still an arrestee when he was shot.

Consequently, the district court did not err in considering

Hernandez’s claim under the Fourth Amendment.

AFFIRMED.