# United States Court of Appeals

f or 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 , Defen dants

— 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. T he 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: 08/15/2023No. 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 hearsa y 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 ha s 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 (footnot e 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 invali dated.” 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. 2 021)

. McIntosh contends that our precedents holding that Heck (1) applies to prison disciplinary convictions and (2) appl ies even where a prisoner does not expressly contest the loss of good

- time credits or seek to recover lost good

- time credits are in con flict 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: 08/15/2023No. 22

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3 rejected such argument s , including in appeals brought by McIntosh’s counsel

. See Santos v. White , 18 F.4th 472 , 476 (5th Cir. 2021) ; Auc oin v. Cupil , 958 F.3d 379, 383 (5th Cir. 2020) ; Gray , 1 8 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 f act

- specific Heck analysis

. See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner , 813 F.2d 744 , 748 (5th Cir. 198 7 ) . 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); F ED

. R. C IV

. P . 56(a). McIntosh relatedly shows no error in the district court’s u se 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. S ee S antos , 18 F.4th at 477 ; Gray , 18 F.4th at 470. Finally, the district court did not abuse its discretion by denying McInto sh’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 circum stances , as well as counsel’s failure to address the district court’s fact

specific 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: 08/15/2023No. 22

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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