Officers’ and City’s appeal dismissed by U.S. 5th Circuit because their dismissal “with prejudice” argument inapplicable when inmate could still get conviction reversed
Kerry Max Cook v. City of Tyler, Texas, et al., 19-40144, 2020 WL 5268509 (5th Cir. Sept. 4, 2020)
This is an appeal and cross-appeal from a dismissal of Cook’s §1983 claim seeking damages suffered from a series of wrongful prosecutions, convictions, and imprisonment, which the U.S. 5th Circuit affirmed.
Kerry Cook filed a §1983 claim, alleging official misconduct via a series of wrongful prosecutions, convictions, and imprisonment. However, the district court, citing Heck v. Humphrey (512 U.S. 477 (1986)), found that a malicious prosecution §1983 claim does not accrue until his conviction is formally terminated in his favor, the Texas Court of Criminal Appeals vacates his conviction, and the State dismisses the indictment against him. The district court dismissed Cook’s suit “with prejudice to the claims being asserted again until the Heck conditions are met…” The City and officer Defendants appealed the dismissal as being without prejudice, insisting the dismissal must be with prejudice. Cook asserted the dismissal was not final, not appealable, and therefore the 5th Circuit lacked subject matter jurisdiction.
The 5th Circuit analyzed two questions: 1) whether the dismissal was with or without prejudice, and 2) whether the dismissal was final and appealable. To the first question, the 5th Circuit found that the dismissal language is taken near verbatim from non-prejudicial language recommended in Johnson v. McElveen (101 F.3d 423 (5th Cir. 1996)), when a trial court is dismissing a case under the condition that it may be reasserted if the Heck conditions are met. To the second question, the 5th Circuit held the dismissal was not final, and thus not appealable because the district court contemplated Cook satisfying the Heck conditions at a later date. The 5th Circuit contrasted this court’s Heck dismissal with other, appealable, dismissals where the issue to be determined was whether Heck was even applicable.
If you would like to read this per curiam opinion, click here. The panel consists of Justices Davis, Jones, and Willett.
