CARRICO v. BROWN

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

TERRE HAUTE DIVISION

MICHAEL R. CARRICO, )

)

Plaintiff, )

)

v. ) No. 2:20-cv-00472-JPH-MG

)

RICHARD BROWN Warden, WVCF, et al., )

)

Defendants. )

ORDER GRANTING MOTION TO ASSERT

PREVIOUSLY WAIVED DEFENSES AND DISMISSING ACTION

After a prison disciplinary committee found him guilty of possessing a

cell phone, possessing a weapon, and inciting a riot, Michael Carrico was

placed in segregation for two years. Dkt. 74-1 at 23–24; dkt. 32 at 4, 6. He

brought this 42 U.S.C. § 1983 action against Defendants, alleging

constitutional violations. Dkt. 18 (Amended Complaint). After screening, the

Court permitted certain claims to proceed. Dkt. 32. The Court granted

Defendants' motion for summary judgment and entered final judgment.

Dkt. 87; dkt. 88. Mr. Carrico appealed, and the Seventh Circuit affirmed as to

all claims except as to Mr. Carrico's due process claim against Sergeant

Jennifer Rinehart. Carrico v. Vanihel, No. 23-1381, 2023 WL 7015274, at *6

(7th Cir. Oct. 25, 2023).

For that claim, the Seventh Circuit concluded that issue preclusion—

which this Court relied on in granting summary judgment to Sgt. Rinehart—did

not apply. Id. at *2. Defendants argued on appeal that they were nonetheless

entitled to summary judgment on the due process claim against Sgt. Rinehart

because (1) Mr. Carrico failed to exhaust administrative remedies; and (2) it

was "barred under Heck v. Humphrey, 512 U.S. 477 (1994), because his

challenge would necessarily imply the invalidity of disciplinary sanctions." Id.

Although Defendants had waived those affirmative defenses by not raising

them before this Court, the Seventh Circuit determined that "the question

remains whether there was some ground to relieve the defendants from the

consequence of their waiver." Id. The Seventh Circuit therefore remanded "so

that the district court can evaluate whether to exercise its discretion and

forgive the defendants' waiver of either argument based on grounds rooted in

state sovereignty." Id.

On remand, the parties submitted their statements of position as to what

action the court should take. Dkts. 101; 102; 104. This Court then set a

deadline for Defendant Rinehart to file a motion to assert previously waived

defenses and a briefing schedule. Dkt. 105. Defendant filed a motion, dkt.

106, and Mr. Carrico did not file a response. In her motion, Defendant argued,

among other things, that she should be allowed to raise the Heck bar as a

defense. Dkt. 107 at 3–5.

In Heck, the Supreme Court held that:

[I]n 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. A claim for damages

bearing that relationship to a conviction or sentence that

has not been so invalidated is not cognizable under § 1983.

Heck, 512 U.S. at 486-87. In Edwards v. Balisok, 520 U.S. 641, 643 (1997),

the Supreme Court extended the Heck bar to § 1983 suits brought by prisoners

challenging the outcome of prison disciplinary proceedings in which the

plaintiff sought money damages rather than release. The Heck framework has

been "reaffirmed" by the Supreme Court several times and thereafter applied by

the Seventh Circuit. Savory v. Cannon, 947 F.3d 409, 416 (7th Cir. 2020).

Here, Defendant argues that this Court should forgive her waiver and

allow her to now raise the Heck bar as a defense. Defendant argues that her

failure to raise Heck was due to her "good-faith excuse", dkt. 107 at 4, of

interpreting the screening order to not "include a due process claim related to

the procedures of Plaintiff's disciplinary hearing", dkt. 102 at 2. Defendant

also argues that the Court should consider that Heck is "a defense rooted in

state sovereignty grounds" and that Mr. Carrico was given notice and the

opportunity to respond, dkt. 107 at 5. In his statement of position, Mr. Carrico

argues that the Court should not allow Defendant to raise the Heck bar now

because she was on notice of his due process claim against Sgt. Rinehart and

had ample time to raise Heck but didn't. Dkt. 104.

The Court finds that Defendant had plausible, good-faith reasons for not

previously raising the Heck bar before this Court. First, Mr. Carrico's Amended

Complaint, which is 51 pages long not counting exhibits, does not clearly set

forth a due process claim against Sgt. Rinehart based on her actions at the

disciplinary hearing. In the section entitled "Cause of Action," the Amended

Complaint sets forth six "grounds": Ground 1, cold cell; Ground 2, boil order;

Ground 3, SCU visitation rules; Ground 4, lack of periodic review; Ground 5,

continued segregation; and Ground 6, violation of "IS 3 status." Dkt. 18 at 9-

12. Sgt. Rinehart is only mentioned in Ground 4, lack of periodic review. Id. at

11. The gist of Ground 4 is that the named defendants sentenced Mr. Carrico

"to an excessive amount of time in disciplinary segregation or, by failing to

conduct meaningful periodic reviews and, or, classification hearings, thereby

unnecessarily prolonging Plaintiff's stay in solitary confinement" in violation of

the Fourteenth Amendment. Id. Ground 4 also alleges that Mr. Carrico's

conditions of confinement were inhumane, in violation of the Eighth

Amendment. Id.

None of the six grounds set forth in Mr. Carrico's Amended Complaint

state that Mr. Carrico is bringing a due process claim against Sgt. Rinehart for

her conduct as the hearing officer at the disciplinary hearing. While

paragraphs 91 and 92 allege that Sgt. Rinehart failed to provide detailed

factual findings at the hearing and failed to hear certain exculpatory evidence,

those are two of 238 paragraphs in the Amended Complaint. Moreover, the

crux of Mr. Carrico's Amended Complaint relates to the length and conditions

of his confinement in segregation, not what happened at his disciplinary

hearing.

Also, like the Amended Complaint, the Court's screening order does not

expressly set forth a claim for due process violations based on Sgt. Rinehart's

conduct at the disciplinary hearing. Under the section entitled, "Claims to

Proceed in this Action", the screening order says, "Mr. Carrico's claims based

on extended placement in segregation without due process SHALL PROCEED

against Sergeant Rinehart [and 9 other defendants]." Dkt. 32 at 6.

Last, a statement made by Defendants in their summary judgment brief

corroborates their argument that they didn't think there was a due process

claim based on Sgt. Rinehart's conduct at the disciplinary hearing:

Of course, there are due process implications raised during the

disciplinary proceedings that put a prisoner on disciplinary

segregation in the first instance. But in Mr. Carrico's case there is

no argument to be made that he failed to receive due process in the

disciplinary proceeding underlying the disciplinary segregation he

complains of in this case. This Court, in a habeas proceeding, has

already found that Mr. Carrico received sufficient due process in his

underlying disciplinary proceeding. Carrico v. Zatecky, S.D. Ind.

Case No. 2:19-cv-78-JMS-MJD, ECF 10 at 1 (1/8/20).

Dkt. 75 at 8-9 n.4.

In his summary judgment response, Mr. Carrico argued, among other

things, that he "did not receive sufficient due process under Wolff v. McDonnell

during his disciplinary hearing for a falsified charge of rioting. Defendant

Rinehart, acting as Disciplinary Hearing Officer (DHO), denied plaintiff his right

to introduce exculpatory evidence, and failed to provide a detailed fact-finding

statement as part of her decision." Dkt. 82 at 11-12. This argument appears

in a section of Mr. Carrico's brief entitled, "Due Process Violations Did Occur

during Plaintiff's Disciplinary Segregation and Administrative Segregation." Id.

at 7.

The Federal Rules of Civil Procedure require that "a party must

affirmatively state any avoidance or affirmative defense..." Fed. R. Civ. P. 8(c).

However, "the rule that forfeits an affirmative defense not pleaded in the

answer (or by an earlier motion) is … not to be applied rigidly." Matthews v.

Wis. Energy Corp., Inc., 642 F.3d 565, 570 (7th Cir. 2011). As relevant here,

courts may forgive a party's waiver of its Heck defense "in accordance with the

principle that treats the waiver of defenses based on grounds rooted in

considerations of state sovereignty less harshly than other waivers." Carr v.

O'Leary, 167 F.3d 1124, 1127 (7th Cir. 1999).

Here, Defendant has provided a plausible, good-faith explanation for why

she didn't raise the Heck bar earlier in the proceedings. Moreover, Mr. Carrico

has not explained how allowing Defendant to assert the Heck bar at this

juncture would prejudice him. Dkt. 105 (Court's order giving Mr. Carrico

opportunity to file a response to Defendants' motion to assert previously waived

defenses); Garofalo v. Vill. of Hazel Crest, 754 F.3d 428, 436–37 (7th Cir. 2014).

The Court has considered the facts presented here along with the comity issues

that would be implicated by precluding Defendant from asserting the Heck bar

to Mr. Carrico's claims. See Bell v. Raoul, 88 F.4th 1231, 1233 (7th Cir. 2023)

("A parallel civil suit would trigger the same considerations and concerns that

Heck sought to avoid, including respect for federal-state comity and the

preservation of habeas corpus as the sole avenue of relief for a state prisoner

seeking post-conviction relief."). The Court exercises its discretion to allow

Defendant to assert the Heck bar as a defense, despite her earlier waiver, and

proceeds to the merits of the Heck defense.

If a suit for damages would necessarily imply the invalidity of a prisoner's

disciplinary conviction, the prisoner may not bring the damages claim "unless

and until the inmate obtains favorable termination of a state, or federal habeas,

challenge to his conviction or sentence." Haywood v. Hathaway, 842 F.3d

1026, 1029 (7th Cir. 2016) (quoting Nelson v. Campbell, 541 U.S. 637, 646

(2004); applying Heck, 512 U.S. 477). Here, Mr. Carrico challenged his

conviction in a habeas petition which was ultimately denied and dismissed,

and he did not appeal that judgment. Carrico v. Zatecky, 2:19-cv-00078-JMS-

MJD (S.D. Ind. Jan. 8, 2020), dkts. 10, 11. He has therefore not obtained a

"favorable termination" of a challenge to his conviction or sentence. Given that

Mr. Carrico seeks money damages as relief, dkt. 18 at 50, a judgment in his

favor "would necessarily imply the invalidity of his disciplinary sentence",

Morgan v. Schott, 914 F.3d 1115, 1119 (7th Cir. 2019). See Savory v. Cannon,

947 F.3d 409, 415 (7th Cir. 2020). Mr. Carrico's claim that Sgt. Rinehart

violated his due process rights in the disciplinary proceeding is therefore

barred by the Heck doctrine. Accordingly, the Court concludes that Mr.

Carrico's due process claim against Sgt. Rinehart must be dismissed without

prejudice. Morgan v. Schott, 914 F.3d 1115, 1122 (7th Cir. 2019) (noting that

dismissals of claims under Heck are without prejudice).

Because the Heck claim is dispositive, the Court need not address Set.

Rinehart's alternative arguments that Mr. Carrico failed to exhaust his

administrative remedies or that the claim is barred by issue preclusion.

The defendant's motion, dkt. [106], is GRANTED. Accordingly, this action

is dismissed without prejudice. The clerk is directed to enter final

judgment.

SO ORDERED.

S) ars rk anor

Date: 5/16/2025 Pat

James Patrick Hanlon

United States District Judge

Southern District of Indiana

Distribution:

MICHAEL R. CARRICO

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