Nelson Carver v. Joshua Nelson

Filing

Opinion issued by court as to Appellant Nelson Fain Carver. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13323

Date Filed: 01/13/2017

Page: 1 of 4

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13323
Non-Argument Calendar
________________________
D.C. Docket No. 4:14-cv-00090-HLM
NELSON FAIN CARVER,
Plaintiff-Appellant,
versus
DEPUTY JOSHUA NELSON,
Defendant-Appellee,
SHERIFF CLARK MILLSAP, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 13, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

Case: 15-13323

Date Filed: 01/13/2017

Page: 2 of 4

Nelson Carver, a prisoner proceeding pro se, appeals the district court’s
grant of summary judgment to Bartow County Sheriff’s Deputy Joshua Nelson on
his claim of excessive force in violation of the Fourth Amendment. On appeal,
Carver argues that: (1) the district court erred when it determined that his claim
was barred under Heck v. Humphrey, 512 U.S. 477 (1994); and (2) the district
court erred when it determined that there were no genuine issues of material fact
and determined, in the alternative, that Deputy Nelson was entitled to qualified
immunity as to the claims against him in his individual capacity. After thorough
review, we affirm.
We review the district court’s grant of summary judgment de novo, using the
same legal standards as the district court. Smith v. Fla. Dep’t of Corr., 713 F.3d
1059, 1063 (11th Cir. 2013). At summary judgment, the court must draw all
reasonable inferences in favor of the nonmovant, should not weigh the evidence,
and should refrain from making credibility determinations about competing
affidavits. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51
(2000). The court can credit uncontradicted and unimpeached evidence supporting
the movant if that evidence comes from disinterested witnesses. Hinson v. Clinch
County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).
To state a claim for relief under § 1983, a plaintiff must show that he was
deprived of a federal right by a person acting under color of state law. Griffin v.
2

Case: 15-13323

Date Filed: 01/13/2017

Page: 3 of 4

City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). In Heck v. Humphrey,
the Supreme Court held that a § 1983 suit for damages must be dismissed if “a
judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence,” unless 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. 512 U.S. 477, 487 (1994). The damages
action should not be dismissed, however, if the action (even if successful) would
not demonstrate the invalidity of any outstanding criminal judgment. Id. As long
as it is possible that a § 1983 suit would not negate the underlying conviction, then
the suit is not Heck-barred. Dyer v. Lee, 488 F.3d 876, 879-80 (11th Cir. 2007).
For Heck to apply, it must be the case that a successful § 1983 suit and the
underlying conviction would be logically contradictory. Id. at 884. It is possible
for an excessive-force claim and a conviction involving assault to coexist because
resisting law enforcement does not invite the police to “inflict any reaction or
retribution they choose.” Id. (quotation omitted).
In this case, the district court did not err when it determined that Carver’s
claim was barred by Heck because the claim necessarily implies the invalidity of
his aggravated assault conviction. Although it is possible for an assault conviction
and an excessive-force claim to coexist, that is not the case here. In his § 1983
3

Case: 15-13323

Date Filed: 01/13/2017

Page: 4 of 4

damages action, Carver alleged that Deputy Nelson shot at him first and attempted
to murder him, even though he was completely non-threatening and compliant. As
for the underlying conviction, however, Carver pleaded guilty to aggravated
assault on Nelson by firing a rifle and handgun in his immediate presence while he
was engaged in the performance of his official duties. If Carver was completely
non-threatening and compliant when Deputy Nelson shot at him first, as alleged in
his § 1983 complaint, he could not have also committed an aggravated assault on
Nelson by firing at him, as he admitted in his plea. Thus, if Carver’s § 1983 claim
was successful, it would logically contradict the underlying conviction and would
necessarily imply the invalidity of his conviction. See Heck, 512 U.S. at 487;
Dyer, 488 F.3d at 884. And while Carver says that he has an ongoing state habeas
corpus proceeding related to his guilty plea, he has not shown that his conviction
has been invalidated to the extent that his § 1983 claim would not be contradictory.
See Heck, 512 U.S. at 487.
Because we conclude that the district court correctly determined that
Carver’s claims were barred under Heck, we decline to consider whether the
district court erred in concluding that Deputy Nelson was entitled to qualified
immunity as to the claims against him in his individual capacity.
AFFIRMED.

4