Kerry Cook v. City of Tyler, Texas ( 2020 )

Case: 19-40144 Document: 00515553422 Page: 1 Date Filed: 09/04/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 4, 2020
No. 19-40144
Lyle W. Cayce
Clerk
Kerry Max Cook,
Plaintiff—Appellee Cross-Appellant,
versus
City of Tyler, Texas; Eddie Clark; Eric Liptak;
Robert Bond; Gerald Hayden; Nelson Downing;
Fred Mayo; Kenneth Findley; Ronald Scott,
Defendants—Appellants Cross-Appellees,
Smith County, Texas; Robert Wickham; J. B. Smith,
Defendants—Cross-Appellees.
Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 6:17-CV-333
Before Davis, Jones, and Willett, Circuit Judges.
Per Curiam:
This appeal and cross-appeal stem from a judgment dismissing
Plaintiff Kerry Cook’s 42 U.S.C. § 1983 claims unless and until Cook
satisfies the conditions of Heck v. Humphrey, 512 U.S. 477 (1986). In an
Case: 19-40144 Document: 00515553422 Page: 2 Date Filed: 09/04/2020
No. 19-40144
unusual turn of events, Defendants appeal a district court’s order that
preceded the district court’s dismissal and denied, in part, their motions for
summary judgment. Even more unusual—these Defendants sought the
dismissal from which they now appeal. Appellee Cook contends that the
district court did not issue a final decision, and therefore this court lacks
subject-matter jurisdiction. We agree with Cook and DISMISS the appeal. 1
Plaintiff filed this § 1983 claim to recover damages suffered from a
series of alleged wrongful prosecutions, convictions, and imprisonment. But
because Cook’s conviction has yet to be formally terminated in his favor, his
causes of action concerning serious official misconduct have not yet accrued
and will not begin to accrue until the Texas Court of Criminal Appeals
(“TCCA”) vacates his conviction and the State dismisses the indictment
against him. 2 Heck, 512 U.S. at 489–90. Accordingly, the district court
dismissed Cook’s suit using the following language: “the above-styled civil
action is DISMISSED WITH PREJUDICE to the claims being asserted again
until the Heck conditions are met, per Johnson, 101 F.3d at 424.” As relevant
here, our jurisdiction under 28 U.S.C. § 1291 extends only to “final
decisions” of the district courts. The first question we must answer is
whether the district court’s order dismissed the case with or without
prejudice.
In Johnson v. McElveen, we explained that this kind of dismissal
“do[es] not preclude a later claim meeting the preconditions for suit.”
101 F.3d 423, 424 (5th Cir. 1996). That is, a Heck dismissal is a dismissal
without prejudice. See, e.g., Clarke v. Stalder, 154 F.3d 186, 191 (5th Cir.
1
Dismissing this appeal necessarily disposes of the issues raised by the
Defendants in their opening brief.
2
Our holding is on narrow, jurisdictional grounds only and should not be
construed as ruling on the statute of limitations or other issues raised by the Appellants.
2
Case: 19-40144 Document: 00515553422 Page: 3 Date Filed: 09/04/2020
No. 19-40144
1998) (en banc). In Johnson, we “modified” a district court’s order
dismissing the case with prejudice “to be without prejudice.” 101 F.3d at
424. In doing so, we explained that “[a] preferred order of dismissal would
read: Plaintiffs claims are dismissed with prejudice to their being asserted
again until the Heck conditions are met.” Id. This language appears nearly
verbatim in the district court’s order. Following these authorities, this court
has repeatedly modified orders dismissing with prejudice cases that implicate
a plaintiff’s conviction to become dismissals without prejudice using
Johnson’s preferred language. See, e.g., DeLeon v. City of Corpus Christi,
488 F.3d 649, 657 (5th Cir. 2007). District courts have likewise employed
Johnson-style dismissals to non-prejudicially dispose of cases. See, e.g., Moore
v. Fite, 2012 WL 37601, at *4 (E.D. Tex. Jan. 6, 2012). Johnson’s language
suffices because it offers the caveat that plaintiffs may reassert their claims
upon satisfying the Heck conditions but may not otherwise develop the claims
“until” those conditions are met. The caveat qualifies the finality of the
dismissal. Understanding this point, the district court acknowledged that its
order “does not prevent Cook from bringing these claims once the ‘Heck
conditions are met.’”
We next consider whether the dismissal constitutes a final decision
and conclude that it does not. “For purposes of Section 1291 a decision is
final only if it ‘ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.’” Sealed Appellant 1 v. Sealed Appellee,
199 F.3d 276, 278 (5th Cir. 2000) citing Cunningham v. Hamilton County,
527 U.S. 198, 119 S. Ct. 1915, 1920 (1999). Courts have held that certain
dismissals without prejudice on the basis of conditions that can be corrected
are not final. See e.g., Vargo v. Stumacher, 125 F.3d 846 (2d Cir. 1997) (“It is
well settled in this Circuit that an order dismissing a complaint with leave to
replead is not a final order within the meaning of 28 U.S.C. § 1291.”);
Gacho v. Butler, 792 F.3d 732, 735-36 (7th Cir. 2015) (holding that a dismissal
3
Case: 19-40144 Document: 00515553422 Page: 4 Date Filed: 09/04/2020
No. 19-40144
without prejudice that “expressly left the door open to reviving the federal
case when the state proceedings concluded” was “nonfinal and thus not
appealable under § 1291 because it explicitly contemplates the court’s
continuing involvement in the case”)(internal citations omitted). The
Johnson dismissal here is of that sort.
Distinguishable from such cases are Heck dismissals that have been
deemed final and appealable because the issue was whether, in fact, the
plaintiff’s pleadings implicated Heck. See, e.g., Young v. Nickols, 413 F.3d 416
(4th Cir. 2005). In Young, the plaintiff had not challenged his underlying
revocation of probation, and the district court dismissed his claim based on
Heck. The court of appeals found finality, however, to decide the question
whether “Heck requires a state prisoner to have his criminal judgment or
sentence set aside before he is allowed to bring a Section 1983 action seeking
damages . . . for illegal extradition.” Id. at 418. Other Heck dismissals are
considered final because the appeal seeks review of the threshold question
whether Heck even applies. DeLeon is one such example, in which this court
was asked to determine “whether a deferred adjudication in Texas is a
‘sentence or conviction’ for the purposes of Heck.” 488 F.3d at 652.
No uncertainty plagues the dismissal here, which the defendants
themselves predicated on Heck. The district court noted that Cook is
awaiting vacatur of his conviction by the TCCA and stated that Cook was
free to bring his claims once the Heck conditions are met. That is, litigation
on the merits is not over because Cook expects to satisfy the Heck conditions
soon and may resubmit his claims thereafter. Because the dismissal of
plaintiff’s claims does not prevent him from re-filing the same or similar
claims at a later date, the district court’s judgment was not a final decision.
We lack jurisdiction to hear the appeal or cross-appeal. DISMISSED.
4