United States District Court, S.D. Mississippi, Southern Division
BRITTEN G. SMITH, # 156247 PLAINTIFF
STEVEN STIELER, et al . DEFENDANTS
REPORT AND RECOMMENDATION
H. WALKER UNITED STATES MAGISTRATE JUDGE.
the Court is  a March 5, 2019 motion to dismiss, or for
summary judgment filed by Defendants Michael Hauler, Bruce
Archebelle, Brad Sumrall and Zachary Couey in this pro
se prisoner civil rights lawsuit filed by Britten G.
Smith. Movants, all of whom are officers with the Gulfport
Police Department, urge they are entitled to dismissal or
summary judgment on grounds that Smith's claims against
them are barred by Heck v. Humphrey, 512 U.S. 477
(1994). Plaintiff has filed no response to the motion.
and Procedural History
the second time Smith has filed this lawsuit. On June 7,
2017, Smith filed Civil Case 1:17cv170-LG-RHW, a virtually
identical action, against Mike Hauler, Steven Stieler,
Zachary Couey and Brad Sumrall. He voluntarily dismissed
Stieler from that case, and the undersigned subsequently
issued a Report and Recommendation (R&R) that the 2017
case be dismissed for his failure to keep his address
current, to comply with the court's order or to appear
for a duly scheduled omnibus/screening hearing. On April 30,
2018, the District Judge adopted the R&R, and entered
final judgment dismissing the 2017 case without prejudice.
Smith filed the present action on December 20, 2018. Both
lawsuits arise from Smith's May 27, 2016 arrest for
stealing an automobile, and for misdemeanors associated with
the arrest. Smith alleges Officer Couey followed him west on
28th Street in Gulfport until Smith pulled into a
driveway at 19342 28th Street in Long Beach, MS.
He claims Couey was “out of jurisdiction” when
Couey pulled in behind him and ordered him out of the car he
was driving. Smith says he got out of the car, put his
hands on his head and was turning as instructed when Officer
Hauler released K-9 police dog Tiara on him. He alleges Hauler
punched and kicked him while the dog bit him, Sumrall tased
him, and Officers Stieler, Schultz and Archebelle witnessed
these events and “gave statements backing each other
up.” [1, p. 4] Smith was booked at the station and
taken to the hospital for treatment of his injuries. He
alleges video of the incident supports his claims.
was arrested for felony taking of a motor vehicle, as well as
three misdemeanors arising out of the arrest: resisting
arrest, maliciously striking/kicking a public service animal
(Tiara), and disorderly conduct and failure to comply with
orders of law enforcement officers. [16-3], [16-4] Gulfport
Municipal Court records establish that Smith pled guilty to
all three misdemeanors on May 31, 2016, and he was indicted
on February 20, 2017 for felony taking a motor vehicle.
[16-5], [16-6],  The Mississippi Department of
Corrections (MDOC) website indicates that theft taking a
motor vehicle is one of the convictions for which Smith is
presently incarcerated, serving three-year sentences imposed
on April 3, 2017 (for car theft and burglary) and March 25,
2019 (for burglary). His tentative release date is June 26,
Fed.R.Civ.P. 56, summary judgment is required “if the
movant shows there is no genuine dispute as to any material
fact and that the movant is entitled to a judgment as a
matter of law.” Material facts are those which affect
the outcome of the suit under governing law; a genuine
dispute exists when the evidence is such that a reasonable
jury could return a verdict for the non-movant. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a
motion for summary judgment, the Court views the evidence and
draws reasonable inferences most favorably to the non-moving
party, but the burden of proof is on the party who has the
burden of proof at trial. Celotex Corp. v. Catrett,
477 U.S. 317, 322-323 (1986); Abarca v. Metropolitan
Transit Authority, 404 F.3d 938, 940 (5th Cir. 2005).
Movant must identify those portions of pleadings and
discovery on file and any affidavits which he believes
demonstrate the absence of a genuine issue of material fact.
When the moving party has carried his burden, the non-movant
must set forth specific facts showing there is a genuine
issue for trial by either submitting opposing evidentiary
documents or referring to evidentiary documents already in
the record which demonstrate the existence of a genuine issue
of material fact. Celotex, 477 U.S. at 324-325;
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir. 1994); Reese v. Anderson, 926 F.2d 494, 498
(5th Cir. 1991); Howard v. City of Greenwood, 783
F.2d 1311, 1315 (5th Cir. 1986) (non-movant “must
counter factual allegations by the moving party with
specific, factual disputes; mere general allegations are not
a sufficient response”); Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(non-movant “must do more than simply show that there
is some metaphysical doubt as to the material facts”).
Conclusory allegations, unsubstantiated assertions or the
presence of a scintilla of evidence, do not suffice to create
a real controversy regarding material facts. Lujan v.
National Wildlife Federation, 497 U.S. 871, 888-89
(1990); Hopper v. Frank, 16 F.3d 92, 97-98 (5th Cir.
1994); Davis v. Chevron U.S.A., Inc., 14
F.3d 1082, 1086 (5th Cir. 1994).
contend they are entitled to dismissal or summary judgment
based on Heck v. Humphrey, 512 U.S. 477 (1994),
which precludes a claim for monetary damages under 42 U.S.C.
§ 1983 that essentially challenges the plaintiff's
conviction or imprisonment.
[I]n order to recover damages for … 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… expunged
… declared invalid … or called into question by
a federal court's issuance of a writ of habeas
corpus…. [T]he district court must consider whether a
judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate the conviction or sentence has already been
invalidated. But if the district court determines that the
plaintiff's action, even if successful, will not
demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed
Heck, 512 U.S. at 486-87, as quoted in Daigre v.
City of Waveland, 2012 WL 12885098 (S.D.Miss. September
25, 2012). See also Hudson v Hughes, 98 F.3d 868,
872 (5th Cir. 1996); Walker v. Munsell, 281
Fed.Appx. 388, 390 (5th Cir. 2008), citing DeLeon v. City
of Corpus Christi, 488 F.3d 649, 656-57 (5th
Cir.2007) (holding Heck barred an excessive force
claim of one who claimed he did not resist arrest and did
complains Couey was “out of jurisdiction” when he
arrested Smith, and alleges although he did nothing wrong and
complied with officers' orders he was attacked by K9
Tiara and other officers. The latter assertions are directly
contradicted by Smith's guilty pleas to resisting arrest
by fighting with officers and the K9, striking and kicking K9
Tiara, and failing to comply with orders of law enforcement
officers. [16-4], [16-5] Because the undersigned finds a
judgment in Smith's favor in this case would necessarily
imply the invalidity of his convictions, his claims are
precluded under Heck's favorable termination
requirement. Heck, 512 U.S. at 486-487; see also
Easterling v. Logazina, 2011 WL 213472, at *1
(S.D.Miss. January 21, 2011).
undersigned recommends that summary judgment be granted;
Smith's claims against Hauler, Archebelle, Sumrall and
Couey be dismissed; and since his claims against the unserved
Defendants are the same, the ...