Ferrara v. Wallace

Case: 22-51099 Document: 00516731020 Page: 1 Date Filed: 04/28/2023
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-51099 April 28, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
John D. Ferrara,
Plaintiff—Appellant,
versus
Terry Jay Wallace, Sr., Veterans Affairs Police Chief; Jeffrey B.
Barnett, Police Chief - City of Kyle; Edward Sandoval, Cameron
County District Attorney’s Office; Pete Sepulveda, Jr., County
Administrator; City of Kyle; Et al.,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-1128
______________________________
Before King, Higginson, and Willett, Circuit Judges.
Per Curiam: *
Ferrara brings a § 1983 action alleging a variety of claims. The district
court dismissed the case and denied Ferrara’s subsequent Rule 60(b) motion.
Ferrara appeals this denial. We AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-51099 Document: 00516731020 Page: 2 Date Filed: 04/28/2023
No. 22-51099
On September 22, 2020, Plaintiff-Appellant John Ferrara, proceeding
pro se and in forma pauperis, filed an action under 42 U.S.C. § 1983 alleging
various constitutional claims against Defendants-Appellees. He
subsequently amended this complaint. Although his live complaint is difficult
to follow, Ferrara’s claims appear to stem from his January 2019 arrest, his
subsequent prosecution, his December 2019 “no contest” plea, and his
September 2020 motion in Cameron County Court to change his plea.
On January 7, 2021, the magistrate judge recommended dismissal of
Ferrara’s case, in part because his claims were barred by Heck v. Humphrey,
512 U.S. 477 (1994). The district court adopted the magistrate judge’s
recommendation in full on January 29, 2021. Ferrara then filed three
additional cases against various Defendants-Appellees; two of these cases
were dismissed as frivolous, and the magistrate judge in the last (fourth) case
recommended dismissal on res judicata grounds on October 28, 2022. To
avoid dismissal of his fourth case, Ferrara filed a motion in the instant (first)
case requesting modification of the January 29, 2021 judgement under Rule
60(b) as to claims related to the City of Kyle. In this motion, he asserted that
Heck no longer barred his claims due to various events in 2022:
On or about January 28, 2022, a matter tied to the claims
presented in this venue has ended in [Ferrara’s] favor. Further
on or about May 23, 2022, an agreed order was signed to grant
the Pro Tem assigned to the cause to remove said office from
any further proceedings related to [Ferrara]. In the agreed
order, the Pro Tem stated the office met the obligations of the
State and the duty to perform any further actions was
concluded. On or about May 31, 2022, the bail bond [Ferrara]
was subjected too [sic] was removed and dissolved.
The district court denied this motion, holding that “Plaintiff does not argue
or establish that his 2019 conviction has been invalidated and does not
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No. 22-51099
present facts or arguments that would show that the underlying conclusion
that this case is barred by Heck was incorrect.” Ferrara timely appeals.
Ferrara appeals the district court’s denial of this motion to modify the
judgment under Rule 60(b)(5) and (6). “We review Rule 60(b) decisions for
abuse of discretion.” Roberts v. Wal-Mart La., L.L.C., 54 F.4th 852, 854 (5th
Cir. 2022). Rule 60(b)(5) allows the court to relieve a party from a final
judgment when “the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). And
Rule 60(b)(6) is a “a residual or catch-all provision,” Edwin H. Bohlin Co. v.
Banning Co., 6 F.3d 350, 357 (5th Cir. 1993), where relief “will be granted
only if extraordinary circumstances are present,” Hess v. Cockrell, 281 F.3d
212, 216 (5th Cir. 2002).
Ferrara has not shown circumstances evincing an abuse of discretion
under either Rule 60(b) provision, even under the more liberal standard
afforded to pro se litigants. On appeal, he first mischaracterizes the district
court’s order denying his motion as “agree[ing] that facts have changed and
remov[ing] language previously listed in the initial [January 29, 2021]
judgement.” The order reveals no such agreement or removal. Instead, the
district court held that Ferrara had not shown that the underlying 2019
conviction had been invalidated as required to prevent dismissal of the
underlying case under Heck. 512 U.S. at 486–87. On appeal, Ferrara concedes
that his claims arising out of the January 2019 matter are barred by Heck.
Ferrara’s other arguments fare no better. His unsubstantiated
assertions concerning various events in 2022 are insufficient to show that the
underlying 2019 conviction has been “reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make
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such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Id. at 487.
We also do not credit Ferrara’s argument that the 2022 events that
preceded his Rule 60(b) motion involved the validity of a separate May 2020
arrest for felony stalking (i.e., not the 2019 events he concedes are subject to
the Heck bar). Construing his arguments liberally, Ferrara seems to aver that
the claims in this case relevant to the City of Kyle are not barred by Heck
because they stem from this May 2020 arrest, which he alleges was
invalidated in 2022. It is not clear that he made these arguments in the
district court, but regardless, his argument is unavailing on the merits.
Ferrara has not presented any evidence indicating that his May 2020 arrest
was in fact invalidated. Even assuming that it was, Ferrara’s May 2020 arrest
does not form the basis for his claims in this case. The live complaint lists
only his 2019 arrest, his 2019 prosecution, and his 2019 plea as events that
gave rise to his claims; other filings also treat the 2019 events as the primary
events that underlie his § 1983 claims.
Thus, we are not persuaded that the complaint or any subsequent
pleadings evince § 1983 claims arising out of the May 2020 arrest. Even if
they did, Ferrara has not shown that the May 2020 arrest was invalidated to
preclude the application of Heck. Instead, as the district court correctly
determined, this § 1983 suit arises out of Ferrara’s January 2019 conviction,
which Ferrara has not shown was invalidated. Accordingly, the district court
correctly applied Heck to dismiss Ferrara’s underlying § 1983 litigation and
acted within its discretion in denying his Rule 60(b) motion arguing for a
contrary result.
For the foregoing reasons, we AFFIRM.
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