IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60251 Summary Calendar

CAROLYN T. ALLEN,

Plaintiff-Appellee,

versus

CITY OF CLARKSDALE; ET AL.,

Defendants,

RUSSELL SHAW, JR., in his Individual and Official Capacity as a Police Officer for the City of Clarksdale,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 2:00-CV-232 -------------------- November 20, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Russell Shaw, Jr., appeals the district court’s order

denying his motion for summary judgment in which he sought the

dismissal of Carolyn Allen’s

suit based on

qualified immunity and immunity under Mississippi law. Shaw

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-60251 -2-

argues that (1) Allen’s illegal confinement and imprisonment

claims are not cognizable under Heck v. Humphrey,

(1994), (2) he is entitled to qualified immunity on

Allen’s denial of prompt medical attention and excessive force

claims, and (3) he is entitled to state law immunity on Allen’s

state law tort claims.

Allen’s illegal confinement and imprisonment claims call

into question her underlying criminal convictions. Thus, in

order for those claims to be cognizable under § 1983, Allen was

required to prove that her conviction had been reversed,

expunged, or otherwise declared invalid. See Heck,

-

87. The record reveals that Allen’s convictions have not been

invalidated. Therefore, her illegal confinement and imprisonment

claims are barred by Heck. Accordingly, summary judgment is

reversed as to these issues.

The district court did not err in denying Shaw’s motion for

summary judgment based on qualified immunity as to Allen’s claim

based on the denial of prompt medical care. If Allen’s factual

allegations are accepted as true, as required by Behrens v.

Pelletier,

(1996), a question remains

concerning whether Shaw acted with “deliberate indifference to a

substantial risk of serious medical harm.” See Wagner v. Bay

City, Tex.,

(5th Cir. 2000). Because it is not

apparent that Shaw is entitled to qualified immunity as a matter No. 02-60251 -3-

of law, the district court’s denial of summary judgment as to

this issue is affirmed. See Behrens,

.

Allen’s excessive force claim is not barred by Heck. See

Delaney v. Giarrusso,

(5th Cir. 1981). If

Allen’s factual allegations are accepted as true, as required by

Behrens, a question remains concerning whether the force used by

Shaw was objectively unreasonable. See Williams v. Bramer,

, clarified on reh’g,

(5th Cir.

1999). Because it is not apparent that Shaw is entitled to

qualified immunity as a matter of law, the district court’s

denial of summary judgment as to this issue is affirmed.

See Behrens,

.

Finally, Allen has alleged that Shaw is not entitled to

state law immunity because his actions were malicious, thereby

taking him outside the course and scope of his employment and

depriving him of immunity. See Bridges v. Pearl River Valley

Water Supply Dist.,

(Miss. 2001). Allen’s

factual allegations concerning malice, when viewed in the light

most favorable to her, demonstrate the existence of a genuine

issue of material fact. See FED. R. CIV. P. 56(e). Accordingly

the district court did not err in denying Shaw’s motion for

summary judgment as to this issue. See

Shaw’s alternative argument based on the statute of

limitations will not be considered by this court because he

raises it for the first time on appeal. See Lifemark Hospitals, No. 02-60251 -4-

Inc. v. Liljeberg Enterprises, Inc., No. 00-30645,

,

(5th Cir. Aug. 28, 2002), n.29. (arguments not

raised in the district court cannot be asserted for the first

time on appeal).

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.