IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60269 Summary Calendar _____________________

JACK JOINER,

Plaintiff-Appellant,

versus

GARY SMITH; CITY OF MARKS, MISSISSIPPI,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (2:94-CV-073-DA) _________________________________________________________________ (October 11, 1995) Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Jack Joiner filed a civil rights suit against the City of

Marks, Mississippi and Gary Smith, a police officer employed by

the City of Marks, Mississippi, pursuant to

.

The district court granted summary judgment in favor of Smith and

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. the City. Joiner filed a timely notice of appeal. Finding no

error, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 1994, Jack Joiner ("Joiner") was driving his

Jeep on a road in Marks, Mississippi. Joiner stopped his vehicle

to speak with a friend. Joiner testified in his deposition that

the Jeep was "halfway in the road," but Officer Gary Smith

("Smith") testified in his deposition that Joiner's car was "in

the middle of the street." Smith stopped Joiner, and, when

Joiner exited his car, Smith asked him to put down the candy bar

that Joiner was eating. Smith explained in his deposition that

he asked Joiner to put down the candy bar so that he could

determine whether Joiner had been drinking or taking drugs. He

testified that, in his experience as a police officer, people

will often try to hide alcohol or drug use by eating something.

Joiner then asked Smith "what does my candy bar have to do with

giving me a ticket." Smith testified that Joiner refused to put

the candy bar down; Joiner stated that he "put it to his side,"

but agreed that he did not put the candy bar on the hood of the

patrol car as Smith had requested.

Smith then placed Joiner under arrest and handcuffed him.

Smith testified that he arrested Joiner because Joiner refused to

obey his order to put the candy bar down on the hood of the

patrol car. Joiner testified that Smith slapped the candy bar

out of his hand, and secured the handcuffs unnecessarily tightly,

2 causing him to scream in pain, and cutting and bruising his

hands. Joiner was charged with, and subsequently convicted in

municipal court of, obstructing traffic and failure to comply

with the order of a law enforcement officer, or disorderly

conduct. Joiner failed to appeal his convictions.

Joiner filed suit against Smith and the City of Marks,

Mississippi ("City") on May 3, 1994, seeking damages under

, and also raising a Mississippi state law

defamation claim. On July 1, 1994, Smith and the City answered

the complaint, and stated in their answer that "Gary Smith

appears to be sued in his official capacity only. If defendant

is mistaken, he pleads immunity . . . ." The parties agreed on a

scheduling order which contained a deadline for amending the

pleadings of November 21, 1994. On March 3, 1995, Smith and the

City filed a motion for summary judgment. On March 23, 1995,

Joiner filed a motion to amend his complaint to sue Smith in his

individual capacity. On April 10, 1995, the magistrate judge

denied Joiner's motion to amend as untimely. On April 14, 1995,

Joiner moved the district court to review the magistrate judge's

denial of the motion to amend. On April 17, 1995, the district

court entered a memorandum opinion which granted summary judgment

for Smith and the City on Joiner's federal claims, affirmed the

magistrate judge's refusal to allow Joiner to amend the

complaint, and dismissed Joiner's state law defamation claim

without prejudice. Final judgment was entered in favor of Smith

3 and the City on April 17, 1995. Joiner filed his notice of

appeal on April 27, 1995.

II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Norman v. Apache Corp.,

(5th Cir.

1994); Conkling v. Turner,

(5th Cir. 1994).

First, we consult the applicable law to ascertain the material

factual issues. King v. Chide,

(5th Cir.

1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the

light most favorable to the non-moving party. Lemelle v.

Universal Mfg. Corp.,

(5th Cir. 1994);

F.D.I.C. v. Dawson,

(5th Cir. 1993), cert.

denied,

(1994). Summary judgment is proper "if

the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law."

FED. R. CIV. P. 56(c).

Under Rule 56(c), the party moving for summary judgment

bears the initial burden of informing the district court of the

basis for its motion and identifying the portions of the record

that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett,

, 323

4 (1986); Norman,

. The burden is not on the movant

to produce evidence showing the absence of a genuine issue of

material fact. See Celotex,

(stating that the

moving party need not "support its motion with affidavits or

other similar materials negating the opponent's claim"). A

defendant who moves for summary judgment may rely on the absence

of evidence to support an essential element of the plaintiff's

claim.

.

III. DISCUSSION

The district court granted summary judgment to Smith and the

City, holding that the complaint only alleges claims against

Smith in his official capacity, which are identical in treatment

to claims against the City itself, and that Joiner failed to

present any evidence establishing a municipal policy encouraging

or sanctioning unconstitutional conduct. Further, the district

court stated that even if Smith had been sued in his individual

capacity, summary judgment would have been proper because

Joiner's unlawful arrest claim is barred because his conviction

has not been invalidated, and Joiner fails to present evidence

supporting his excessive force claim. Finally, the district

court held that, because no viable federal claims survived the

summary judgment, it would decline to exercise supplemental

jurisdiction over Joiner's state law defamation claim.

In this appeal, the parties argue at great length, first,

whether Smith was sued in his individual capacity, and, if he was

5 not, whether the magistrate judge abused his discretion in

refusing to allow Joiner to amend the complaint to allege claims

against Smith in his individual capacity. We need not address

this issue, however, because, even if Smith were sued in his

individual capacity, the district court's grant of summary

judgment was proper.

A. The Unlawful Arrest Claim

The district court held that even if Joiner had alleged an

unlawful arrest claim against Smith individually, the claim would

fail under the rule of Heck v. Humphrey,

(1994),

because Joiner's conviction has not been reversed. The Supreme

Court in Heck held that:

[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,

. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

Id. at 2372 (footnote omitted). In his brief Joiner contends

that Heck does not apply to his § 1983 action because the rule of

Heck is limited to § 1983 claims brought by state prisoners who

seek to avoid the exhaustion requirement of federal habeas

corpus.1 However, in Wells v. Bonner,

(5th Cir.

1 Joiner also contends that Justice Scalia's opinion in Heck speaks only for a four-judge plurality; thus, it does not express the holding of the Court. This contention is incorrect.

6 1995), this court found that a plaintiff's unlawful arrest claim

was precluded by Heck even though the plaintiff was not "in

custody."2 Thus, to determine whether Joiner's § 1983 claim for

unlawful arrest is governed by the Heck rule, we must determine

first "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 that the conviction or sentence has already been

invalidated." Id.

Joiner's unlawful arrest claim is controlled by Wells.

. Joiner alleges that his arrest constitutes an

unreasonable seizure prohibited by the Fourth Amendment because

it was for a trivial offense. This claim is equivalent to the

claim that his arrest lacked probable cause. To prove that the

arrest was an unreasonable seizure, Joiner must demonstrate that

Smith lacked probable cause to arrest for either charge, which

"Scalia, J. delivered the opinion of the Court, in which Rehnquist, C.J. and Kennedy, Thomas, and Ginsburg, J.J. joined. Thomas, J. filed a concurring opinion. Souter, J. filed an opinion concurring in the judgment, in which Blackmun, Stevens, and O'Connor, J.J., joined." Heck,

. 2 The Wells court stated:

Although the Heck court was driven by concerns not applicable here--the relationship between habeas corpus claims under

and civil rights claims under

--the court broadly held that any § 1983 claim, which attacks the unconstitutionality of a conviction . . . does not accrue until that conviction (or sentence) has been "reversed on direct appeal . . . ."

Wells,

(quoting Heck,

).

7 would demonstrate the invalidity of Joiner's convictions for

obstructing traffic and for disorderly conduct. Wells,

. Thus, Joiner's claim for damages for an unlawful arrest

is not cognizable under § 1983 unless his convictions have been

reversed or otherwise invalidated. Id.

Joiner's claim is precluded because he failed to appeal his

convictions. Joiner was arrested for, charged with, and

convicted of obstructing traffic and disorderly conduct. Joiner

admits that he did not appeal his convictions, however, he argues

that he failed to appeal because he was misinformed by the City

Court Clerk about the cost and requirements of an appeal.3

However, assuming that Joiner's allegations are true, neither

Heck nor this circuit's cases interpreting Heck have created an

exception to the Heck rule--that a conviction must be invalidated

before a § 1983 claim arises if the claim challenges the validity

of the conviction--in situations where the plaintiff puts forth

an excuse that his failure to appeal resulted from external

circumstances or misinformation. Additionally, Joiner argues

that the municipal judge's statement during his trial that Joiner

was "wrongfully arrested" is a "de facto expungement of the

conviction." Even assuming the municipal judge made this

statement, this argument lacks merit, because the municipal judge

3 Joiner alleges that the City or Circuit Court Clerk told him that he would have to put up $400 and obtain an affidavit stating the reasons for the appeal to appeal his $210 fine. Joiner claims that he later hired an attorney to pursue the appeal, but they failed to appeal because the time period had expired.

8 did in fact convict Joiner of obstructing traffic and disorderly

conduct. Because those convictions still stand, Joiner's

unlawful arrest claim is not cognizable under § 1983; therefore,

the district court properly granted summary judgment on that

claim.4

B. The Excessive Force Claim

The district court also held that, even if Smith had been

sued in his individual capacity, Smith was entitled to summary

judgment on Joiner's claim for excessive use of force because

Joiner "produced little evidence on this claim." On appeal,

Joiner argues that the district court erred in granting summary

judgment on this claim because he raised material fact issues

concerning whether the force used by Smith was excessive,

unreasonable, or applied for the purpose of causing pain. Smith

argues that the district court properly granted summary judgment

because Smith was entitled to handcuff Joiner as part of the

arrest--i.e., Smith did not use excessive force, and even if

Joiner could establish an excessive force claim under present

law, Smith would be entitled to qualified immunity because his

actions did not violate clearly established constitutional rights

at the time of the incident.

The Fourth Amendment governs claims of excessive force

during an arrest. Spann v. Rainey,

(5th Cir.

1993). To establish a claim for excessive use of force, a

4 Because we hold that Heck precludes Joiner's § 1983 claim for unlawful arrest, we need not address Smith's argument that Joiner's unlawful arrest claim is collaterally estopped.

9 plaintiff must prove: (1) an injury; (2) which resulted directly

and only from the use of force which was excessive to the need;

and (3) that the excessiveness of the force was objectively

unreasonable. Id. "A plaintiff is no longer required to prove

significant injury to assert a section 1983 Fourth Amendment

excessive force claim." Harper v. Harris County, Tex.,

(5th Cir. 1994). However, the Supreme Court has denied

constitutional protection for a "de minimis use of physical

force, provided that the use of force is not of a sort repugnant

to the conscience of mankind." Hudson v. McMillian,

(1992); Knight v. Caldwell,

(5th Cir. 1992).

The facts alleged by Joiner establish nothing more than the

de minimis use of force. Joiner testified at his deposition that

Smith "slapped the candy bar out of my hand" and "put my hand

behind my back and put the cuffs on and he squeezed them real

tight and I shouted and he twisted them and I shouted again and

then he told me to give him my other hand and he put it behind my

back and put the other cuffs on even tighter." Joiner testified

that after he was released, he put some alcohol on his wrists,

and then went out to a nightclub. Joiner testified that he

suffered abrasions and contusions on his wrists. Joiner's

medical report from the Quitman County Hospital, where he

apparently had his left wrist x-rayed on January 30, 1994,

revealed that he suffered a small cut on his left wrist, but no

bleeding, and stated that "[t]he bony structures of the hand and

wrist are intact. The joint spaces are well maintained. Soft

10 tissues are normal." Even construing the facts in the light most

favorable to Joiner, it is clear that the force used by Smith, as

well as the injuries suffered by Joiner, were de minimis. See

Hudson,

(noting that "not every push or shove, even

if it may later seem unnecessary in the peace of a judge's

chambers, violates a prisoner's constitutional rights" (internal

quotation omitted)). When making an arrest, a police officer is

entitled to handcuff the arrestee. The fact that Joiner suffered

some scrapes and bruises on his wrists from the use of handcuffs

does not make the force used excessive or objectively

unreasonable.

Because we hold that Joiner did not raise a genuine issue of

material fact supporting his excessive force claim, we need not

address Smith's qualified immunity defense. Therefore, we

conclude that the district court did not err in granting summary

judgment for Smith on Joiner's excessive force claim.

C. Liability of the Municipality

The district court granted summary judgment in favor of the

City because Joiner failed to establish a municipal policy which

caused a constitutional violation. To establish municipal

liability under § 1983, a plaintiff must demonstrate that an

official municipal policy or custom caused the constitutional

violation. Piotrowski v. City of Houston,

(5th

Cir. 1995). In his brief, Joiner concedes that he has alleged no

facts to indicate that any policy-making officials for the City

implemented an official policy that caused his alleged

11 constitutional violation, nor has he established a persistent

pattern of conduct by city officials that caused the alleged

constitutional violation. Rather, Joiner asks this court to

change the rule of Monell v. Dept. of Social Servs. of New York,

(1978), reasoning that Monell has been

discredited by subsequent Supreme Court cases, such as Heck,

which emphasize that the Court will look to principles of the

common law in analyzing

. Monell established the

rule that, in a § 1983 action, liability may not be imposed on a

governmental entity on a theory of respondeat superior for the

actions of non-policymaking government employees. Id.; Brown v.

Bryan County, Tex.,

(5th Cir. 1995). Joiner

requests that this court replace the official custom or policy

rule for municipal liability with common law respondeat superior.

We conclude that Joiner's argument lacks merit. This court

has no authority to disregard the Supreme Court's decision in

Monell. Therefore, we conclude that the district court properly

granted summary judgment in favor of the City.5

IV. CONCLUSION

For the foregoing reasons, we AFFIRM.

5 Joiner argues additionally in his original brief on appeal that the district court abused its discretion in dismissing without prejudice his state law claim of defamation. In his reply brief, however, Joiner concedes that the district court's dismissal of his state law claim was not error. Accordingly, we affirm the district court's dismissal without prejudice of Joiner's state law claim.

12