UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 00-30438 __________________

DOLVA WATSON,

Plaintiff-Appellant,

v.

NEW ORLEANS CITY; EMELDA T. GARRETT, Officer,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans 99-CV-537-A ______________________________________________ October 16, 2001

Before DUHÉ and BENAVIDES, Circuit Judges, and RESTANI*, District Judge.

PER CURIAM:**

Plaintiff Dolva Watson (“Watson”) appeals the district court’s

grant of judgment as a matter of law against her after a jury

returned a verdict in her favor. The district court held that her

suit under

for excessive force by defendant police

* Judge, U.S. Court of International Trade, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. officer Emelda Garrett (“Officer Garrett”) was barred by Heck v.

Humphrey,

(1994).1 We affirm and reform the judgment

consistent with Heck.

I. Facts

While watching a Mardi Gras parade on February 23, 1998,

Watson crossed a barricade to retrieve a pair of beads. Officer

Garrett ordered Watson to return to the other side of the

barricade, and when she failed to comply, Officer Garrett attempted

to arrest her. By this time, however, Watson had been drinking all

afternoon and became very belligerent, using racial epithets to

address Officer Garrett. As she resisted Officer Garrett, a fight

ensued between them. Before Officer Garrett could subdue Watson

and place her under arrest, Watson sustained several injuries as

she was struck by Officer Garrett and forced to the ground. Watson

was finally removed from the scene and taken to the hospital, but

she refused treatment. When she finally arrived at the booking

station, she became involved in another altercation, this time with

a sheriff’s deputy. As a result of her actions, Watson ultimately

plead no contest to charges of resisting arrest and battery on a

police officer. She was fined $1,500 and ordered to pay an

1 The district court also stated that had it not granted judgment as a matter of law on the basis of Heck, it would have granted a new trial because the jury’s award, which included zero compensatory damages but a $250 punitive damages award, was the result of an impermissible compromise. Watson argues that the verdict should not be set aside. We need not address the issue because we hold that her claim is barred by Heck.

2 additional $350 in restitution.2

Watson filed suit against the City of New Orleans (“the

City”), the New Orleans Police Department (“the Police

Department”), Superintendent Richard Pennington, Officer Garrett,

Officer Elizabeth Coste (“Officer Coste”), and Officer Lewis

Richardson (“Officer Richardson”). She claimed several violations

of her constitutional rights, including unlawful seizure, due

process, excessive force, and cruel and unusual punishment. In

addition to these constitutional claims, she alleged Louisiana

state law claims of assault and battery and gross negligence. She

sought compensatory damages, punitive damages, and attorney’s fees.

In the pretrial order, the parties stipulated to Watson’s

convictions. Defendants filed a motion in limine seeking the

dismissal of Watson’s false arrest claim on the grounds that it was

barred by Heck v. Humphrey, as her convictions precluded a § 1983

false arrest claim. The district court agreed, concluding that any

determination regarding the legality of Watson’s arrest would

necessarily implicate the validity of her convictions.

The remainder of the case proceeded to a jury trial. During

Watson’s testimony on cross-examination, the defense moved for a

directed verdict as to Officer Richardson. The court took the

matter under submission, and after the completion of Watson’s case

2 Under Louisiana law, Watson’s plea of no contest constitutes a conviction. See La. Code Crim. Proc. art 552(4).

3 in chief, the court dismissed Officers Coste and Richardson.

Watson stated that she had no objection to their dismissal. Chief

Pennington, the City, and the Police Department then moved for

judgment as a matter of law, which the court granted, holding that

there was no evidence of wrongdoing by Chief Pennington and the

City and that the Police Department was not amenable to suit. At

the conclusion of the defense’s case, Officer Garrett moved for

judgment as a matter of law on Watson’s § 1983 excessive force and

state law battery claims. The court denied the motion and

submitted the case to the jury.

The jury returned with a verdict in favor of Watson. It found

that Officer Garrett had used unconstitutionally excessive force in

arresting and detaining Watson, had acted maliciously, willfully,

and in gross disregard for Watson’s constitutional rights, and had

committed battery upon Watson in violation of state law.3 They

refused to award, however, any compensatory damages and entered

zero for both “physical injury, pain, suffering, mental anguish,

emotional distress, etc.” and “past medical expenses.” Despite the

lack of compensatory damages, the jury did award Watson $250 in

punitive damages for Officer Garrett’s violations of Watson’s

constitutional rights.

After the jury’s verdict, Officer Garrett filed a motion for

judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b). She

3 The battery claim is not a part of this appeal, as the jury did not award any damages on the basis of that claim.

4 argued that the jury’s finding of excessive force should be

overturned in light of Heck, as Watson’s battery conviction

precluded a § 1983 claim for excessive force. Moreover, she

contended that the jury’s award of punitive damages must be

overturned, as her single punch to a person who admittedly hit,

kicked, and spit on her was not sufficiently malicious to justify

punitive damages, especially given that Watson was not awarded any

compensatory damages. The district court granted Officer Garrett’s

motion, holding that Watson’s convictions for battery on a police

officer, resisting arrest, and public intoxication barred her from

bringing her claim that Officer Garrett used excessive force in

arresting her.

II. Discussion

We review the district court's order under a de novo standard,

examining the evidence in the light most favorable to the

nonmovant. See Russell v. McKinney Hosp. Venture,

(5th Cir. 2000). Judgment as a matter of law is appropriate if

"the facts and inferences point so strongly and overwhelmingly in

favor of the moving party [that] no reasonable jurors could have

arrived at a contrary verdict." See McCoy v. Hernandez,

(5th Cir. 2000).

Watson argues on appeal that because her plea and sentence

were not admitted into evidence, the court should not have

considered them in ruling on the Rule 50(b) motion. She also

5 contends that Officer Garrett waived her argument that Watson is

estopped from bringing her cause of action because estoppel is an

affirmative defense, and Officer Garrett failed to preserve it.

Finally, she asserts that Heck should not apply because Officer

Garrett used excessive force after she had placed Watson under

arrest, and that no conflict therefore exists between her

conviction and her § 1983 claim.

Officer Garrett contends that Heck bars the excessive force

claim because it necessarily calls into question Watson’s

convictions. She points out that the pretrial order included

stipulations regarding Watson’s conviction and sentence. Moreover,

Officer Garrett argues that she did not waive her Heck defense

because the district court granted the defendants’ motion in limine

dismissing Watson’s false arrest claim and at the close of the

defense’s case, Officer Garrett moved for judgment as a matter of

law. Finally, she notes that the district court, in agreeing with

Officer Garrett’s Heck argument, did not hold that Watson’s claims

were estopped.

A. Waiver

Watson contends that the district court erred in granting

judgment as a matter of law because Officer Garrett waived her Heck

defense. Specifically, she notes that estoppel is an affirmative

defense, which is waived if not properly plead. Although Officer

Garrett’s argument that Heck bars Watson’s claim as a matter of law

6 is not technically an estoppel argument, see Heck,

,

480 n.2 (1994) (distinguishing between Heck doctrine and res

judicata), Watson’s failure to use the correct terminology has not

caused Officer Garrett any prejudice. Officer Garrett’s brief

identifies all the points in the litigation during which she claims

to have raised the Heck issue. Although these references are

insufficient to put Watson on notice that Officer Garrett intended

to rely on Heck as a bar to the excessive force claim, we note that

waivers of defenses based on grounds rooted in considerations of

state sovereignty are applied less harshly than other waivers. See

Graham v. Johnson,

(5th Cir. 1996)(per curiam)

(holding that federal court has discretion whether to accept a

state’s waiver of exhaustion requirement in habeas action); see

also Carr v. O’Leary,

(7th Cir. 1999)

(recognizing applicability of doctrine to Heck defenses). Although

the district court did not explicitly indicate its reliance on this

doctrine, this omission does not prohibit us from acknowledging it.

See Mulberry Square Prods., Inc. v. State Farm Fire & Cas. Co.,

(5th Cir. 1996). Accordingly, we hold that Officer

Garrett did not waive her Heck defense.

B. Heck

We now consider whether Heck operates to bar Watson’s

excessive force claim under § 1983. Heck holds that a § 1983 claim

7 “that effectively attacks the constitutionality of a conviction or

imprisonment does not accrue until that 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 issue

of a writ of habeas corpus.” Hudson v. Hughes,

(5th Cir. 1996) (quoting Heck,

). In Hudson, this

Court concluded that a § 1983 plaintiff’s claim for excessive force

was barred in light of the plaintiff’s conviction for battery of an

officer. Id. The Court reasoned:

In Louisiana, self-defense is a justification defense to the crime of battery of an officer. To make out a justification defense, the criminal defendant charged with battery of an officer must show that his use of force against an officer was both reasonable and necessary to prevent a forcible offense against himself. Because self-defense is a justification defense to the crime of battery of an officer, [plaintiff’s] claim that [defendants] used excessive force while apprehending him, if proved, would necessarily imply the invalidity of his arrest and conviction for battery of an officer.

Watson contends that Hudson does not control the present case

because her claim is based on abuse that she suffered after she was arrested. The district court, having reviewed the record, rejected this argument. It stated that “the alleged excessive force involving Officer Garrett, according to plaintiff’s own testimony, occurred during the NOPD officers’ attempts to cuff, subdue, and keep the plaintiff under arrest until the van picked up detainees at the parade site and hauled the plaintiff off to Charity

8 Hospital.” Watson disagrees with this conclusion, but she does not provide any citations to record evidence substantiating her claim that Officer Garrett used excessive force after her arrest. Under Fed. R. App. P. 28(a)(9)(A), appellant’s brief must contain the “appellant’s contentions and reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]” Failure to comply with Rule 28 results in abandonment of

the issue. U.S. v. Miranda,

(5th Cir. 2001). In light of Watson’s inability to provide any support for her conclusory assertion that her excessive force claim does not call into question the validity of her battery conviction, we hold that Heck bars her § 1983 excessive force claim against Officer Garrett. Finally, Watson’s argument that there was no evidence of her conviction need not detain us long, as it is totally without merit. Both parties stipulated to the conviction, and it was therefore

entirely proper for the district court to consider it. See U.S. v.

Branch,

(5th Cir. 1995)(per curiam) (holding that a party’s entry into a stipulation relieves the opposing party of its burden to prove the fact that has been stipulated).

Accordingly, the district court did not err when it held that Heck barred Watson’s § 1983 claim for excessive force.

III. Conclusion

The district court correctly granted judgment as a matter of law on Officer Garrett’s Heck defense to Watson’s excessive force

claim. Nevertheless, because Heck operates merely to bar a claim

9 under § 1983 until such time as a plaintiff’s conviction is 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 issue of a writ of habeas corpus, we reform the judgment by dismissing the case with prejudice until such time as Watson satisfies the conditions of Heck. JUDGMENT OF DISMISSAL AFFIRMED AS MODIFIED

10