Bishop v. Garretson

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 27, 2000
• Docket: 99-20833
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20833 (Summary Calendar)

LARRY MISHU BISHOP,

Plaintiff-Appellant,

versus

L.D. GARRETSON, # 61099; NORMAL TREMELL MOSLEY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Texas (H-99-CV-1789) -------------------- June 26, 2000

Before POLITZ, WIENER, and STEWART, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Larry Mishu Bishop, Texas prisoner #

826281, appeals the district court’s grant of summary judgment in

favor of defendant police officer L.D. Garretson, and the dismissal

of Bishop’s pro se 42 U.S.C. § 1983 civil rights complaint, as

being barred by the doctrine of Heck v. Humphrey, 512 U.S. 477

(1994).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. In his complaint, Bishop alleged that Garretson filed a

probable-cause affidavit that contained several false paragraphs,

resulting in his unconstitutional arrest on aggravated-assault

charges. A Texas jury ultimately convicted Bishop of the

aggravated assault of Norman Mosley, the other defendant named in

this matter, and the trial court sentenced Bishop to 40 years in

prison. In Heck, the Supreme Court directed that, “in 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 or otherwise invalidated by official

action. See Heck, 512 U.S. at 486-87.

Bishop now argues that dismissal on grounds of Heck was

erroneous because his arrest and the filing of the probable-cause

affidavit were independent of his conviction and sentence. See

Heck, 512 U.S. at 487 (if a judgment in favor of the plaintiff in

a § 1983 action would not necessarily imply the invalidity of his

criminal conviction, dismissal under Heck is inappropriate). There

is an absence of evidence that Bishop’s conviction was based on

evidence resulting from the arrest or the filing of the probable-

cause affidavit. Accordingly, the district court’s dismissal of

Bishop’s complaint under Heck was error. See Mackey v. Dickson, 47

F.3d 744, 746 (5th Cir. 1994).

We may nonetheless “affirm the district court’s judgment on

any grounds supported by the record.” Sojourner T v. Edwards, 974

2 F.2d 27, 30 (5th Cir. 1992). A review of the record on appeal

reveals that Bishop’s claims regarding his arrest are meritless.

To prevail on his claim, Bishop would be required to show that

Garretson “knowingly provided false information to secure the

arrest warrant[ ] or gave false information in reckless disregard

of the truth.” Freeman v. County of Bexar, F.3d (5th

Cir. May 4, 2000, No. 99-50608), 2000 WL 422920 at *1 (citing

Franks v. Delaware, 438 U.S. 154, 171 (1998)). The arrest may

still be constitutionally valid if, when the allegedly false or

malicious material in a probable-cause affidavit is excised,

sufficient material remains in the affidavit to support a finding

of probable cause. See Franks, 438 U.S. at 171-72. Bishop has not

denied that Officer Garretson truthfully attested that the victim,

Mosley, told him that Bishop, whom he knew as “Big Red,” was the

person who shot him. This information from a “victim eyewitness”

was sufficient to support a finding of probable cause for Bishop’s

arrest. See Hale v. Fish, 899 F.2d 390, 399 (5th Cir. 1990).

Because there is no genuine issue of material fact with respect to

whether there was probable cause to support the arrest, see Celotex

Corp. v. Catrett, 477 U.S. 317 (1986), the granting of summary

judgment was proper.

Bishop’s “abuse of process” claim is frivolous because he has

not suggested that process was used for any purpose other than

institution of a criminal complaint, which is a proper use of

process. See Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th

Cir. 1999), petition for cert. filed (U.S. Feb. 24, 2000).

3 Bishop’s contention that the district court erred in denying his

motion for additional discovery is meritless because he has failed

to show that discovery was necessary to establish any issue of

material fact that would preclude summary judgment. See King v.

Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Finally, Bishop’s

contention that the court erred in dismissing the complaint “with

prejudice” is incorrect. See Stephenson v. Reno, 28 F.3d 26, 28

(5th Cir. 1994).

The judgment of the district court is

AFFIRMED.