United States Court of Appeals

for the Fifth Circuit

____________

No. 22-30399

Summary Calendar

____________

James McIntosh, 

Plaintiff—Appellant,

versus

Robert Goings, former sergeant; Jonathan Stringer, Lieutenant; 

Jacob Waskom, Major; Louisiana State, through Louisiana 

Department of Public Safety and Corrections Rayburn Correctional Center; 

Mickey Dillon, Lieutenant, 

Defendants—Appellees.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CV-1719

______________________________

Before Jolly, Higginson, and Duncan, Circuit Judges.

Per Curiam:

*

James McIntosh, Louisiana inmate # 582793, appeals the dismissal of 

his 42 U.S.C. § 1983 complaint alleging excessive force, in violation of the 

Eighth Amendment, against the defendants. The district court determined 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2023

Lyle W. Cayce

Clerk

Case: 22-30399 Document: 00516858409 Page: 1 Date Filed: 08/15/2023
No. 22-30399

2

that McIntosh’s excessive force claim was barred by Heck v. Humphrey, 512 

U.S. 477 (1994). McIntosh relatedly argues that the district court erred by 

admitting and relying on prison disciplinary reports that constituted hearsay

in reaching its decision. He further contends that the district court 

erroneously denied his motion for an adverse inference based on spoliation 

due to the defendants’ failure to preserve surveillance video of various parts 

of the use-of-force incidents and that the district court erred by dismissing 

his state-law tort claims without remand. McIntosh has abandoned his 

argument concerning remand of his state law claims by inadequately briefing 

it. See Davis v. Davis, 826 F.3d 258, 266 (5th Cir. 2016).

“[I]n order to recover damages for allegedly unconstitutional 

conviction or imprisonment, or for other harm caused by actions whose 

unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff 

must prove that the 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 federal 

court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486-87 

(footnote omitted). If a favorable finding under § 1983 would necessarily 

imply the invalidity of the plaintiff’s conviction or sentence, “the complaint 

must be dismissed unless the plaintiff can demonstrate that the conviction or 

sentence has already been invalidated.” Id. at 487. Heck applies to prison 

disciplinary convictions that result in the loss of good-time credits, and it is 

immaterial whether the plaintiff in fact seeks the restoration of good-time 

credits. Gray v. White, 18 F.4th 463, 467 (5th Cir. 2021).

McIntosh contends that our precedents holding that Heck (1) applies 

to prison disciplinary convictions and (2) applies even where a prisoner does 

not expressly contest the loss of good-time credits or seek to recover lost 

good-time credits are in conflict with Heck and Muhammad v. Close, 540 US 

749 (2004), as well as our own prior Heck decisions. We have repeatedly 

Case: 22-30399 Document: 00516858409 Page: 2 Date Filed: 08/15/2023
No. 22-30399

3

rejected such arguments, including in appeals brought by McIntosh’s 

counsel. See Santos v. White, 18 F.4th 472, 476 (5th Cir. 2021); Aucoin v. 

Cupil, 958 F.3d 379, 383 (5th Cir. 2020); Gray, 18 F.4th at 467; Autin v. 

Goings, No. 21-30678, 2023 WL 3004142 (5th Cir. Apr. 19, 2023); see also 

Edwards v. Balisok, 520 U.S. 641, 643-49 (1997) (applying Heck to prisoner’s 

§ 1983 claim challenging his prison disciplinary hearing). Furthermore, 

McIntosh does not challenge the district court’s fact-specific Heck analysis. 

See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th 

Cir. 1987). He accordingly fails to show error in the conclusion that the 

defendants are entitled to judgment as a matter of law on the basis of Heck. 

See McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012); FED. R. CIV.

P. 56(a). 

McIntosh relatedly shows no error in the district court’s use of prison 

disciplinary reports to help determine whether his excessive force claims 

were Heck barred, as those reports were offered not to prove the truth of their 

contents but to show that prison officials had found him guilty of various 

disciplinary infractions. See Santos, 18 F.4th at 477; Gray, 18 F.4th at 470.

Finally, the district court did not abuse its discretion by denying 

McIntosh’s request for an adverse inference based on spoliation of the prison 

surveillance videos. See Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). 

McIntosh fails to address the court’s relevant finding that an adverse 

inference would not alter the Heck calculus. See Brinkmann, 813 F.2d at 748.

The judgment is AFFIRMED. Additionally, in light of our prior 

rejections of counsel’s arguments regarding Heck’s applicability and the 

admissibility of the prison disciplinary reports in indistinguishable 

circumstances, as well as counsel’s failure to address the district court’s factspecific findings supporting its Heck ruling, counsel is CAUTIONED that 

sanctions may be imposed for bringing frivolous appeals. See United States v. 

Case: 22-30399 Document: 00516858409 Page: 3 Date Filed: 08/15/2023
No. 22-30399

4

Burleson, 22 F.3d 93, 95 (5th Cir. 1994); Coghlan v. Starkey, 852 F.2d 806, 

808 (5th Cir. 1988).

Case: 22-30399 Document: 00516858409 Page: 4 Date Filed: 08/15/2023