# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 22

- 10303

**Shellany Ray,** Plaintiff

— Appellant **,**

versus **Recovery Healthcare Corporation; Alcohol Monitoring Systems, Incorporated; Glenn Tubb; The**  **Riverside Company,** Defendants

— Appellees

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19

- CV

- 3055

Before **Ste wart, Willett,**  and **Oldham,** Circuit Judges

**. Per Curiam**  **:** * Shellany Ray claims her ankle monitor malfunctioned and caused a court in Dallas County to erroneously revoke her community supervision.

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set for th in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 15, 2022 Lyle W. Cayce Clerk Case: 22-10303 Document: 00516545122 Page: 1 Date Filed: 11/15/2022No. 22

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2 She sued various entities for the alleged malfunction. The district court held her claims are barred by Heck v. Humphrey , 512 U.S. 477 (1994) . We affirm.
I.
A. On January 3, 2017, She l lany Ray pleaded guilty in Dallas County to her third D W I offense and was sentenced to ten years ’ imprisonment

. The convicting court suspended her sentence, however , and instead placed her

on community supervision (probation) for seven years. 1 As a condition of her community supervision, Ray is required to abstain from consuming alcohol.
To monitor her alcohol consumption, Ray must wear an ankle monitor called a “ **SCRAM** ” device. The **SCRAM** devic e was manufactured by defendant

– appellee Alcohol Monitoring Systems, I ncorporated ( **AMS** )

. The County contracts with defendant

– appellee Recovery Healthcare Corporation (Recovery ) to prov ide the **SCRAM** devices and to monitor probationers convicted of alcohol offenses

. The device w orks by measuring the amount of alcohol that evaporates through the wearer’s skin every 30 minutes

. An algorithm then uses that data to approximate the wearer’s blood alcohol content.
On Christmas Day in 2017 , Ray ’s monitor de tected a large amount of alcohol

. Soon after, **AMS** and Recovery alerted Dallas County probation officials that Ray had consumed alcohol in violation of her terms of

1 In Texas, probation is referred to as “community supervision.” **Tex. Code Crim. Proc.**  art. 42 A.001(1) (“ ‘Community supervision’ means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which: (A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, i s probated and the imposition of sentence is suspended in whole or in part. ”). Case: 22-10303 Document: 00516545122 Page: 2 Date Filed: 11/15/2022No. 22

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3 community supervision. The state court issued a warrant for Ray’s arrest. And Dallas County p rosecutors filed a motion to revoke Ray’s probation

. At the hearing on the prosecution’s revocation motion, Ray said she didn’t consume alcohol on December 25. She explained that her husband had sprayed Static Guard on their bed that day , which she argued must have been the source of the spike in alcohol vapors
. But AMS and Recovery insisted that the only possible explanation for the **SCRAM** reading was that plaint iff had consumed a “large quantity” of alcohol

. At the end of the hearing, the court modified Ray’s conditions of community supervision , ordering Ray to “attend a 12

- step recovery program every day for 90 days and provide proof of attendance to her probati on officer.” Ray then hired a forensic criminalist named Jan Semenoff to evaluate the Christmas Day **SCRAM** data . Semenoff’s report concluded that the **SCRAM** reading s were far more consistent with alcohol evaporation outside the body (such as from Static Guar d on bed sheets) than with alcohol metabolization inside the body (such as from alcohol consumption). Ray alleges that “after Ms. Semenoff’s report was provided to prosecutors, they abandoned their efforts to revoke the Plaintiff’s probation.”
B. Ray filed suit in the Northern District of Texas, alleging a bevy of state and federal claims

— including under 42 U.S.C. § 1983 for violations of her First, Fourth, Fifth , and Fourteenth Amendment rights; under 18 U.S.C. § 1964 for racketeering ; and under Texas state law for violations of the Texas Deceptive Trade Practices Act as well as for negligence, gross negligence, strict liability, fraud, and intentional infliction of emotional distress

. The c rux of her claims wa s that the **SCRAM** device incorrectly report ed that Ray consumed alcohol on Christmas Day

. Ray contended that, absent the Case: 22-10303 Document: 00516545122 Page: 3 Date Filed: 11/15/2022No. 22

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4 defendants’ misconduct, the district court would not have modified her community supervision

. T he district court held that Ray’s claims were barred by Heck v. Humphrey

. Ray timely appealed. We have jurisdiction under 28 U.S.C. § 1291 . O ur review is de novo

. Ferrer & Poirot, GP v. Cincinnati Ins. Co. , 36 F.4th 656 , 658 (5th Cir. 2022) (per curiam).
II.

“ To survive a motion to dismiss, a complaint must contain sufficient fact ual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face. ’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007) ). A complaint fails to state a claim where it demands relie f barred by Heck v. Humphrey

. E.g. , Crittindon v. LeBlanc , 37 F.4th 177, 190 (5th Cir. 2022). In Heck , the Supreme Court held that courts cannot entertain civil suits if “ a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence .” 512 U.S. at 487. 2 That i s because “ civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments .” Colvin v. LeBlanc , 2 F.4th 494, 498 (5th Cir. 2021) (quoting Heck , 512 U.S. at 486 ). If a judgment for plaintiff would imply that his conviction or sentence was invalid , the court must dismiss the claim “ unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. ” Id. This is sometimes called the “ favorable termination” exception. Ballard v. Burton , 444 F.3d 391 , 396 (5th Cir. 2006)

. P laintiffs can demonstrate

2 Ray never disputes that a favorable judgment on any of her claims would imply the invalidity of the January 24 modification order requiring her to attend the 12

- step recovery program . Likewise, everyone assume s the Heck analysis applies to all Ray’s claims

— state and federal

— with equal force, so we assume that to be the case without deciding it to be so. Case: 22-10303 Document: 00516545122 Page: 4 Date Filed: 11/15/2022No. 22

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5 favorable termination by, inter alia , “ prov [ing] that the conviction or sentence has been reversed on direct appeal, expunged by executive or der, 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 .” Heck , 512 U.S

. at 486

– 87. Ray asserts that Heck does not apply because the state court’s modification order was not a “conviction or sentence” for Heck purposes. And even if it were, Ray contends the probation revocation proceeding terminated in her favor when the prosecutors withdrew their motion to revoke Ray’s probation

. W e address and reject each contention in turn.
A. Although we have yet to articulate a definitive test for when a judicial action constitutes a “conviction or sentence” under Heck , we have created

some guidelines . In DeLeon v. City of Corpus Christi , for example, we held that

“ a deferred adjudication in Texas is a ‘s entence or conviction ’ for the purposes of Heck

. ” 488 F.3d 649 , 652 (5th Cir. 2007)

. I n Jackson v. Vannoy , we held that Heck barred claims that would imply the invalidity of a successful parole revocation proceeding. 49 F.3d 175 , 177 (5th Cir. 1995) (per curiam). And in Morris v. Mekdessie , we applied Heck to bar claims that would invalidate the defendant’s participation in a pr etrial diversion program. 768 F. App’x 299 , 300

– 01 (5th Cir. 2019)

. The results in DeLeon , Jackson , and Morris were all required by Heck ’s protection of the “ finality and consistency ” of criminal judgments from undue “ collateral attack .” Heck , 512 U.S. at 484

– 85.
DeLeon is particularly instructive. Although a deferred adjudication order is not considered a “conviction or sentence” under state law , we nevertheless decided that Heck barred DeLeon’s civil claims

. See DeLeon , 488 F.3d at 656 (“[A] lthough the Texas courts have in all circumstances held Case: 22-10303 Document: 00516545122 Page: 5 Date Filed: 11/15/2022No. 22

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6 that these orders are not convictions,

. . . [w] e conclude that a deferred adjudication order is a conviction for the purposes of Heck .”). We did so to vindicate the concerns that animated Heck

— namely, that “civ il tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck , 512 U.S. at 486

. We found compelling the fact that the deferred adjudication order bore important similarities to sentences and convictions

. Namely, t he deferred adjudication order was (1) a “final judicial act , ” (2) preceded by a “ judicial finding that the evidence substantiates the defendant ’ s guilt ,” and (3) accompanied by probation conditions that resemble the consequences of a conviction or sentence

. DeLeon , 655

– 56. A llow ing DeLeon to “attack” his deferred adjudication order via § 1983 would undermine Heck and its “concerns for finality and consistency

. ” Heck , 512 U.S. at 484

– 85

. Everyone agrees that under Heck and DeLeon , Ray cannot bring civil claims that would imply the invalidity of her 2017 DUI conviction or her initial probation order

. (That’s true even though a probation order is not a “sentence or conviction” under Texas law.) The parties part company, howeve r, over whether the January 2018 modification order requiring Ray to attend a 12

- step recovery program for 90 days is a “sentence or conviction” under Heck

. We agree with the district court that the modification order bears the

same three similarities that DeLeon articulated and thus should be considered a “sentence or conviction” for Heck purposes . First, the order is “final” in the sense that it was “wholly within the state court’s discretionary power, could not be appealed, and otherwise effectively left Ray with no other option than to comply

. ” 3 Second , probation revocation hearings carry relevant

3 We reject Ray’s attempt to liken her probation revocation hearing to a pr eliminary, non

- final probable cause hearing. Nothing in the modification order remotely Case: 22-10303 Document: 00516545122 Page: 6 Date Filed: 11/15/2022No. 22

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7 indicia of criminal proceedings : “ the State is represented by a prosecutor, ”

“ the defendant does have a right to counsel, ” “ the hearing is before the judge, ” “ formal rules of evidence do apply, ” and the judge makes an ultimate finding whether the probationer violated her terms of probation

. Ex parte Doan , 369 S.W.3d 205, 210 (Tex. Crim. App. 2012) ; **Tex. Code Crim. Proc.**  art. 42A. 752 ( a)

. F inally , the modification order added “conditions”

— namely , the 12

- step program

— that are akin to a sentence. **Tex. Code Crim. Proc.** art. 42A. 752 ( a)

. We also agree with the de fendants that treat ing the initial probation determination

— which D eLeon held is a “conviction or sentence” under Heck

— differently than modifications to that determination would create an artificial distinction in Heck ’s otherwise cohesive framework

. This argument tracks Texas law, which considers revocation proceedings and modification orders as extensions of the original probation order. Indeed, “a ny punishment [a probationer] would receive as a result of the revocation hearing relates back to the original offense for which [the probatio ner] was placed on community supervision

. ” State v. Waters , 560 S.W.3d 651, 659 (Tex. Crim. App. 2018)

. We hold that the state court’s modification order was a “conviction or sentence” for purposes of Heck , and hence that case bars Ray’s claims.

suggests that the hearing was an interim probable cause determination or that the imposition of the 12

- step program was a condition of release akin to bail . Regardless of Ray’s speculation on the motivation or understanding of the state prosecutors, the state court itself viewed the 12

- step program and the accompanying order as a “modification” to Ray’s original terms of probation. Indeed, the modification order was titl ed “Order Modifying the Conditions of Community Supervision,” and the state court declared that “the Conditions of Community Supervision in the above numbered Cause(s) are hereby modified by the Court.” The court even labeled the modification condition

— req uiring R ay to attend the 12

- step program

— as condition “bb,” right where the list of conditions of community supervision left off in the January 3, 2017 “Judgment of Conviction. ” Case: 22-10303 Document: 00516545122 Page: 7 Date Filed: 11/15/2022No. 22

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8 B. Ray also argues that even if the modification order is a “conviction or sentence” under Heck , she nevertheless satisfies the favorable termination exception. Ray cites Thompson v. Clark for the proposition that “[t]o demonstrate a favorable termination of a criminal prosecution for purposes of

. . . Fourth Amendment claim [s] under § 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended without a conviction

. ” 142 S. Ct. 1332, 1335 (2022). And Ray argues that the prosecutors ’

w ithdrawal of their revocation motion is enough to demonstrate “favorable termination” under Thompson

. That is incorrect. Even if Thompson ’s holding extended beyond the Fourth Amendment malicious prosecution context and applied to all of Ray’s civil claims, Ray’s situation is nothing like what happened in Thompson

. There, Thompson was arrested and charged, but those “charges were dismissed before trial,” so Thompson’s “prosecution ended without a conviction.” Thompson , 142 S. Ct. at 1335. Here, howeve r, the prosecution’s revocation motion did result in a hearing (akin to the “trial” in Thompson ) where the judge evaluated the allegedly flawed **SCRAM** report and issued a

mo dification order, which we’ve already established is a “conviction or sentence” for purposes of Heck

. The prosecutors’ withdrawal of their motion after Ray had already completed all 90 days of the 12

- step program did nothing to alter or impact the court’s decision. Finally, R ay makes no showing or argument that her “ conviction or
sentence ” has otherwise 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.” Heck , 512 U.S. at 486

– 87. Thus, she cannot satisfy the favo rable termination exception as articulated by either Heck or Thompson

. Case: 22-10303 Document: 00516545122 Page: 8 Date Filed: 11/15/2022No. 22

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9 **AFFIRM ED** 

. Case: 22-10303 Document: 00516545122 Page: 9 Date Filed: 11/15/2022