Tony Newmy, Sr. v. Trey Johnson

758 F.3d 1008, 2014 WL 3397798, 2014 U.S. App. LEXIS 13300
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 14, 2014
Docket13-2756
StatusPublished
Cited by39 cases

This text of 758 F.3d 1008 (Tony Newmy, Sr. v. Trey Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tony Newmy, Sr. v. Trey Johnson, 758 F.3d 1008, 2014 WL 3397798, 2014 U.S. App. LEXIS 13300 (8th Cir. 2014).

Opinions

COLLOTON, Circuit Judge.

Tony Quinton Newmy appeals a judgment of the district court1 dismissing his complaint brought under 42 U.S.C. § 1983 for failure to state a claim. We affirm.

Newmy sued Trey Johnson, a parole officer in Mississippi County, Arkansas, under § 1983. According to the complaint, Johnson falsely reported that Newmy failed to report to see him as required by the terms of Newmy’s parole during five months in 2012. Newmy claimed that as a result of Johnson’s allegation, his parole was revoked, and he was required to serve an additional three to five months of detention. He asserted that Johnson’s actions violated his constitutional rights under the Due Process Clause and sought damages.

The district court addressed whether Newmy’s § 1983 claim was cognizable in light of the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and this court’s application of Heck in Entzi v. Redmann, 485 F.3d 998 (8th Cir.2007). In Heck, the Supreme Court considered a claim brought by a prison inmate against a state police investigator and state prosecutors under § 1983, alleging misconduct in the investigation and prosecution of the inmate’s criminal case. The Court held 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, 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, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486-87, 114 S.Ct. 2364 (footnote omitted).

A separate opinion of Justice Souter urged that the favorable-termination rule announced in Heck should not extend to individuals who are not “in custody” for habeas purposes, because “the result [1010]*1010would be to deny any federal forum for claiming a deprivation of federal rights to those who cannot first obtain a favorable state ruling.” Id. at 500, 114 S.Ct. 2364 (Souter, J., concurring in the judgment). The Court responded directly and disagreed: “We think the principle barring collateral attacks — a longstanding and deeply rooted feature of both the common law and our own jurisprudence — is not rendered inapplicable by the fortuity that a convicted criminal is no longer incarcerated.” Id. at 490 n. 10, 114 S.Ct. 2364 (majority opinion). In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Court unanimously extended Heck to bar a § 1983 claim brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits while incarcerated.

In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Court then addressed a habeas corpus petition brought by a former inmate who sought to invalidate an order revoking his parole. Because the plaintiff had completed the entire term of imprisonment underlying the parole revocation, the Court ruled that the plaintiffs petition was moot. In a concurring opinion, Justice Souter wrote that although the habeas petition was moot, the plaintiff was free to bring an action under § 1983. He renewed his disagreement with footnote 10 in Heck, where the Court had explained that the principle barring collateral attacks is not rendered inapplicable by the fact that the plaintiff is no longer incarcerated. Id. at 19-21, 118 S.Ct. 978 (Souter, J., concurring). Justice Ginsburg, who had joined the opinion of the Court in Heck, also wrote separately. Citing Justice Frankfurter’s aphorism that “[wjisdom too often never comes, and so one ought not to reject it merely because it comes late,” Henslee v. Union Planters Nat’l Bank & Trust Co., 335 U.S. 595, 600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (Frankfurter, J., dissenting), Justice Ginsburg declared that she had “come to agree” with Justice Souter that “[ijndividuals without recourse to the habeas statute because they are not ‘in custody’ (people merely fined or whose sentences have been fully served, for example) fit within § 1983’s ‘broad reach.’ ” Spencer, 523 U.S. at 21, 118 S.Ct. 978 (Ginsburg, J., concurring).

A landscape consisting of Heck and the collection of opinions in Spencer has resulted in a conflict in the circuits about the scope of Heck’s favorable-termination rule. Several courts — counting up the five Justices who opined in concurring and dissenting opinions in Spencer — have concluded that the Heck bar does not apply to a § 1983 plaintiff who cannot bring a habeas action. See Cohen v. Longshore, 621 F.3d 1311, 1315-17 (10th Cir.2010); Wilson v. Johnson, 535 F.3d 262, 267-68 (4th Cir.2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 599-605 (6th Cir.2007); Nonnette v. Small, 316 F.3d 872, 875-78 (9th Cir.2002); Huang v. Johnson, 251 F.3d 65, 73-75 (2d Cir.2001); Carr v. O’Leary, 167 F.3d 1124, 1125-28 (7th Cir.1999). Four other circuits, including this one, have adhered to the conclusion — set forth in footnote 10 of Heck— that the favorable-termination rule still applies when a § 1983 plaintiff is not incarcerated. Entzi, 485 F.3d at 1003; Gilles v. Davis, 427 F.3d 197, 208-12 (3d Cir.2005); Randell v. Johnson, 227 F.3d 300, 301-02 (5th Cir.2000) (per curiam); Figueroa v. Rivera, 147 F.3d 77, 80-82 (1st Cir.1998).

After Spencer, the Supreme Court said in Muhammad v. Close, 540 U.S. 749, 752 n. 2, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (per curiam), that it had “no occasion to settle” whether the unavailability of habe-as may dispense with the Heck favorable-termination requirement. We concluded in Entzi that the combination of concurring and dissenting opinions in Spencer did [1011]*1011not amount to a holding that binds this court. We opted instead to follow footnote 10 in the opinion of the Court in Heck.

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Bluebook (online)
758 F.3d 1008, 2014 WL 3397798, 2014 U.S. App. LEXIS 13300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tony-newmy-sr-v-trey-johnson-ca8-2014.