### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-60709

CARL LEE GREEN, Plaintiff – Appellant
v. CITY OF MOSS POINT, MISSISSIPPI, A Municipal Corporation; OFFICER BARRY CLARK, Defendants – Appellees

Appeal from the United States District Court for the Southern District of Mississippi

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges. PER CURIAM: * Carl Lee Green led the police on a wild, 100 mile-per-hour chase throughout the streets of Moss Point, Mississippi, located on the Gulf of Mexico. The chase was in, around, and about the town until Green found himself facing the Gulf of Mexico at a dead end and, then, facing a pair of police cars blocking his only exit. Faced with tough choices, Green thought it a more sensible plan to remove the police car from his path than to undertake an exit into the Gulf. It may have been the better option, but bashing th e c a r out of his way and U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 26 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

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forcing himself out of the dead-end, led to a cemetery, where he was captured, and on to state court, where he was convicted on his guilty plea of simple assault on a law enforcement officer. Carl Lee Green, however, is neither contrite nor daunted, which brings us to this appeal today. He sued the policeman, Officer Barry Clark, whose car he intentionally bashed and, according to the admissions of his guilty plea, whose life he put in serious danger, on the grounds of his alleged use of excessive force. He sued the City of Moss Point as well. Because Green pleaded guilty to simple assault on a law enforcement officer, we hold that the district court did not err by dismissing Green’s § 1983 s u i t on the grounds of the Heck doctrine nor in dismissing Green’s state law c l a i m s o n the grounds that Clark was entitled to qualified immunity under the Mississippi Tort Claims Act (MTCA). I. On March 19, 2008, Green was driving his Ford Bronco, with a license plate i s s u ed to another vehicle and an expired driver’s license, in Moss Point, Mississippi. Moss Point Police Off

i c e r Barry Clark observed Green’s truck facing the wrong direction on the road. Clark radioed Officer Martin and told him to check out the Bronco’s license plate. When Green saw Offi c er Martin, he fled in his Bronco and tried to “lose” the police by takin g m u lt i ple turns and driving upwards of 100 miles per hour. Green too k o fficers Martin and Clark on a high-speed chase throughout Moss Point. During the pursuit, Green ran Martin’s vehicle off the road into a ditch. Despite Green’s continued efforts to evade law enforcement officers, his circuitous path eventually reached a dead e nd at the Gulf of Mexico; and any further efforts to escape seemed at an end. Realizing that he could no longer continue forward, Green pulled his car into the empty parking lot of a community center and made a u-turn. Officers

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Martin and Green maneuvered their cars in order to partially block the only exit from the community center. Did he surrender to the police? No. Green ran his Ford B r onco into the passenger’s-side front door of Officer Clark’s police cruiser. Green ran into the cruiser with such force that Clark’s car’s windshield was severely cracked and it s d o o r was dented. Officer Clark immediately exited his police cruiser, drew his weapon, and fired multiple shots into Green’s truck’s windshield. After the shooting began, Green drove toward Officer Clark again. I n response, Clark continued to fire gunshots into Green’s windshield. Green was hit by bullets in the shoulder and the arm, and he was possibly grazed by another bullet. Still, Green continued to drive the truck through the community center’s exit. The pursuit continued for several more mile s , but Green’s speed and

m aneuverability decreased because of a blown-out tire. The chase ended in a cemetery, where Officer Martin placed Green in handcuffs. As a resu l t o f h is misadventure, Green required hospitalization and several surgeries. II. On August 21, 2009, G r een filed suit against the City of Moss Point and Officer Clark in the United States District Court for the Southern District of Mississippi under 42 U.S.C. § 1983 and the Mississippi Tort Claims Act. 1 On January 15, 2010, Officer Clark moved for partial summary judgment, arguing that he, in his individual capacity, and the City were entitled to qualified immunity under both Mississippi and federal law. The district court granted in part and denied in part Clark’s motion. The court held that genuine issues of material fact remained relative to Green’s excessive force claim. Thus,

The com plai nt articula ted fou r § 1983 caus es of act ion: (1) dep rivat ion of civil right s; 1 (2) fai lure of Mo ss Po i nt to ade quate ly tra in and sup ervis e off icer s; (3) negligent hirin g, ret enti on, and di s c i p l i n e ; a n d (4) exces sive for ce. Gr een only app eals the dis mi ss al of his § 1983 clai m forexc es sivef orc e. 3 Case: 11-60709 Document: 00512034082 Page: 3 Date Filed: 10/26/2012No. 11-60709

the district court did not grant summary judgment on this ground. In the same order, the district court granted summary judgment dismissing Green’s state law tort claims for b a t t e ry, assault, and intentional infliction of emotional distress. The district court held that Clark was entitled to qualified immunity under the MTCA, because Clark was acting within the scop e o f hi s duty and because Green was engaged in criminal activity at the time of the shooting. Wh ile Green’s civil suit was pending in federal court, criminal charges arising from the incident were also pending against Green in Mississippi state court. Green had been indicted on August 15, 2008 by a Jackson County grand jury for aggravated assault on a law enforcement officer; Green had pleaded “not guilty” to this charge. On August 2, 2011, however, Green pleaded gu i l ty t o simp l e assault on a law effacement officer. Through the course of pleading guilty, Green admitted to “attempt[ing] to cause bodily injury to Barry Clark by striking a vehicle occupied by Barry Clark with Lee Carl Green’s vehicle.” After Green pled guilty to simple assault on a law enforcem e n t o f f i c er, Clark filed another motion for summary judgment. The district court granted the defendants’ motion for summary judgment, holding that Green’s excessive f o r ce claims are barred by the Heck doctrine. The district court also de n i e d reconsideration of the dismissal of Green’s state law claims. Thus, the entirety of Green’s complaint was dismissed with prejudice. Green now appeals, arguing that the district court erred both by applying the Heck doctrine to bar Green’s excessive force claim and by holding that Clark was acting within the scope of his employment to bar Green’s state law causes of action. III. First, we will consider whether the district court erred by dismissing Green’s § 1983 claim for excessive force against Clark on the basis of the Heck doctrine.

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In Heck v. Humphrey , 512 U.S. 477, 486 (1994), the Supreme Court held that “the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding cri m i n a l judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or c o nf i n e m e n t .” In other words, a “plaintiff who has been convicted of a crime cannot recover damages f o r an alleged violation of his constitutional rights if the alleged violation arose from the same facts attendant to the charge for which he was convicted,” unless the plaintiff can prove that this conviction has already been invalidated. Ballard v. Burton , 444 F.3d 391, 396 (5th Cir. 2006) (citing Heck , 512 U.S. at 486-87); see also Sappington v. Bartee , 195 F.3d 234, 235 (5th Cir. 1999). Thus, in order to determine whether Heck precludes Green’s § 1983 claim against Officer Clark for excessive force, we must determine whether a judgment in Gre e n’ s f avor woul d n ec e s s arily undermine his conviction for simple a s s a ult on a law enforcement officer. See Jackson v. Vannoy , 49 F.3d 175, 177 (5th Cir. 1995). Green pleaded guilty to simple assaul t o f a law enforcement officer in Mississippi state court for violating section 97–3–7 of the Mississippi Code. This section provides, in pertinent part: A person is guilty of simple assault if he (a) attempts to cau s e or purposely, knowingly or recklessly causes bodily injury to another; or . . . (c) at t e mpts by physical menace to put another in fear of imminent serious bodily harm

. . . . However, a person convicted of simple assault [upon a law enforcement officer while th e l aw enforcement officer is acting within the scope of his employment] . . . shall be [imprisoned] for not more than five (5) years . . . . 2

The fac ts to wh ich Gr een ple d guilty sup port a convic tio n unde r both sub part (a) and 2 sub part (c) of se cti on 97–3–7 of the Mis sis sip pi Code

. See Uni ted States v. Still , 102 F.3d 118, 124 (5t h Cir. 1996) (“A di sj u nctive st atut e may be ple ade d conjunc tively and pr oven disjunct iv e ly.” ); Lenoi r v. State , 115 So. 2d 731, 732 (M iss

. 1959) (“ It is a genera l rule that wh ere a st atut e deno unces as an off ens e tw o or mo re dis tinc tive act s, things , or transa cti ons enum erat ed ther ein in the disjunct ive, the w h o l e m ay be char ged conjunc tively and the def enda nt f o u n d gu i l t y of either one. ”) ; Ma rtin v. State , 818 So. 2d 380, 382 (M iss

. Ct. App

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Miss. Code Ann. § 97–3–7. The facts to which Green pleaded guilty are as 3 follows: [Green] attempted to cause bodily injury to Barry Clark by striking a vehicle occupied by Barry Clark with Lee Carl Green’s vehicle . .

. [a]nd attempt[ed] to strike th e person of Barry Clark with his vehicle.

. . . [A]t that time Barry Clark was an officer employed by the Moss Point Police Department and [was] acting in the scope of his duty.
To succeed on a § 1983 claim for excessive force, Green must prove that he “suffered (1) an injury that (2) resulted directly and only from the use of force that was exces s iv e to the need and that (3) the force used was objectively

unr e a s o n ab l e .” Flores v. City of Palacios , 381 F.3d 391, 396 (5th Cir. 2004) (citations omitted); Goodson v. City of Corpus Christi , 202 F.3d 730, 740 (5th Cir. 2000). Furthermore, “ [u]se of deadly force is not unreasonable when an officer would have reason to believe that the suspect poses a threat of serious harm to the officer or others.” Mace v. City of Palestine , 333 F.3d 621, 624 (5th Cir. 2003) (citing Tennessee v. Garner , 471 U.S. 1 (1985). Ultimately, Green’s suit is barred by the Heck doctrine if proving th a t C l ark’s use of force was objectively

unreaso n ab le would necessarily call into question the validity of Green’s conviction for simple assault on a law enforcement officer. See Ballard , 444 F.3d at 398. Viewing the fa c t s , the law, the plea, and the conviction, Green cannot prove his excessive force claim without calling int o qu e s t ion his criminal

2002)

. Gr een argues that he did not ple ad guilty to sim ple ass ault on a law en f o rce me nt 3 off icer and, ins tead , ple ade d guilty to a generi c, sim ple ass ault char ge. In his pet itio n to ple ad guilty, Gr een st ated “I, L

. C a r l G r e e n , do hereby pet itio n this honor able court to acc ept my ple a of guilty to the cri me (s ) of SAO LEO [‘ sim ple ass ault on a law enf orc em ent off

icer .’ ]” Thus, ther e is no me rit to this argum ent; Gr een undo ubte dly ple d guilty to a char ge of sim ple ass ault on a l awenfor cem ent off icer

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conviction. Green assaulted Clark with a truck before Clark started shooting at him; then, mere seconds later, Green assaulted Clark again by driving his truck toward Clark to run him over. Green himself summarized the events by saying “[i]t all happened so fast.” Furthermore, Green’s conviction for simple assault

on a law enforcement officer necessarily implies that Clark did not use excessive force by shooting at Green under circumstan c e s G r e en admitted in his guilty plea. See Sappington , 1 9 5 F

. 3 d a t 237; see also Hainze v. Richards, 207 F.3d 795, 798-99 (5th Cir. 2000). As noted above, Green’s conviction required proof that Green “attempt[ed] to cause or purposely, knowingly or recklessly cause[d] bodily injury” or “put another in fear of imminent serious bodily h a r m.” Miss. Code Ann. § 97–3–7. We further note that excessive force is not unreasonable “when an officer would have reason to believe that the suspect poses a threat of serious harm to the officer or others.” Mace , 333 F.3d at 624 (citing Garner , 471 U.S. at 1). Moreover, under Mississippi law, any person can use deadly force “where there shall be r e a s onable ground to apprehend a design to commit a felony or to do some great personal injury , and there shall be imminent danger of such design being accomplished,” Miss. Code Ann. § 97–3–15(1)(f). Because Green’s criminal convi c t ion was premised upon his attempting to cause, or putting another in fear of, serious bodily injury, Clark acted reasonably under the circumstances, regardless of whether we consider Mississippi or federal law. Green cannot prove otherwise without negating his conviction for simple assault

on a law enforcement officer. In short, Green’s claim is exactly the sort of claim the Heckdoctrine was established to prevent. IV. Next, we are obliged to address Green’s argument that the district court erred by di s missing his state law causes of action under the Mississippi Tort Claims Act against Clark in his individual capacity. According to Green, Clark

was acting with malice at the time of the shooting and was consequently acting

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outside of the scope of his duty as a police officer, stripping Clark of his qualified immunity and entitling Green to relief on his state law claims. The MTCA provides the exclusive remedy for tort actions brought against

a govern m e nt a l e n tity or its employees. Miss. Code Ann. § 11-46-7(1). A governmental employee who commits a tort with malicious intent, or a tortious offense constituting a criminal offense other than a traffic violation, may be held personally liable for that act, and the governmental entity employing him or her is absolved of liability. Miss. Code Ann. § 11-46-5(2). 4 Green did not raise this malicious intent argument in the district court until he filed a motion for reconsideration of the dismissal of his state law claims. In fact, in h i s r esponse to Clark’s first motion for summary judgment, Green conceded that Clark was acting in his official capacity at the time of the shooting. Only in rare circumstances, not present here, do we consider an issue raised for the first time in a motion for reconsideration. See Brown i ng v. Navarro , 894 F.2d 99, 100 (5th Cir.1990). Thus, because Green does not explain why he did not raise this argument before the district court until his motion for reconsideration, he has clearly forfeited this argument. Even if, however, Green had not forfeited this argument, he would still not be entitled to relief. Outside of the shooting itself, G r e e n offers no proof that C l ark acted maliciously. Moreover, the doctrine of collateral estoppel – the principle that a criminal conviction is conclusive as to an issue arising against

[B] u t n o e m p l o y e e s h a l l b e held per so nally liable for act s or 4
om iss ions occ urring within the cour se and sc ope of the em plo yee’s dut ies

. . . . [A] n em plo yee sha ll not be cons ide red as act ing wi thin the cour se and sc ope of his em plo ymen t and a gover n m enta l enti ty sha ll not be liable or be cons ide red to h av e w a ived im mun ity for any cond uct of its em plo yee i f t h e em plo yee’s cond uctc ons tit utedf

raud , mal ice, libel

. . . . Mis s CodeAnn. § 11-4 6-7( 2).

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the criminal defendant in a subsequent civil action

– would barr Green from proving that Clark acted unr e a s o n ably, let alone maliciously, under the circumstances. See Tomlinson v. Lefkowitz , 334 F.2d 262, 264 (5th Cir. 1964)

. In sum, Green’s argument that the district court erred by dismissing his MTCA claims is without merit. V. In c onclusion, because Green’s § 1983 claim against Clark for excessive force is barred by the Heck doctrine and because Clark was entitled to qualified immunity from Green’s state law claims, the judgment of the district court is AFFIRMED.

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