Alejo, Urbano v. Heller, Gary

In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-1573

URBANO C. ALEJO,

Plaintiff-Appellant,

v.

GARY E. HELLER and KEITH HECKLER,1

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 94-CV-682-JPG—J. Phil Gilbert, Judge.

____________

ARGUED FEBRUARY 19, 2003—DECIDED MAY 13, 2003

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Before FLAUM, Chief Judge, COFFEY and KANNE, Circuit

Judges.

KANNE, Circuit Judge. Prisoner-detainee Urbano C.

Alejo was disciplined for failing to obey a federal correction

officer’s order that was issued in English. Alejo, a Spanish-

speaking Cuban national, brought this Bivens-style action,

1

The docket sheet for this appeal also lists as defendants-

appellees K. Murphy, Fernando Castillo, and M.L. Batts. At no

time in this appeal has Alejo made an argument that the dis-

missal of these defendants was in error. These defendants are

therefore dismissed with prejudice from this appeal. See also infra

note 2.

2 No. 01-1573

alleging various denials of due process based on his na-

tionality and ethnicity. All but one of these claims—that

Alejo was unconstitutionally disciplined for his failure to

obey an order he could not understand—were dismissed

for want of prosecution, a ruling that is not challenged

here. What is challenged is (i) the district court’s sua

sponte dismissal without prejudice, at the threshold stage,

of all but one of the prison-personnel defendants on ac-

count of Alejo’s failure to allege their personal involve-

ment, and (ii) the district court’s subsequent dismissal of

the remaining claim against defendant Lieutenant Gary

Heller, because that claim necessarily asserted the in-

validity of a disciplinary determination that had not

previously been challenged. We affirm in part, reverse in

part, and remand for proceedings consistent with this

opinion.

I. HISTORY

Alejo’s Background

Alejo fled Cuba for the United States in 1980. Shortly

after his arrival, the Immigration and Naturalization

Service detained him and placed him in federal custody.

Three years later, while in detention, Alejo was convicted

and sentenced for conveying a weapon at a federal facility.

Thereafter, in 1986, Alejo was convicted and sentenced

for killing his cellmate.

During his sentence for murder, Alejo served time at

various federal prisons, including the United States Peni-

tentiary at Marion, Illinois (“USP Marion”), where the

events giving rise to this action occurred. Alejo has com-

pleted his criminal sentence, but remains confined as an

INS detainee.

No. 01-1573 3

The Incident

While at USP Marion, Alejo was housed in the prison’s

“B Unit” and was placed in the prison’s “pretransfer” pro-

gram, a unit and program designated for those prisoners

and detainees who had maintained “clear conduct” during

their recent history of incarceration and as a reward

received special privileges, such as relaxed rules and the

ability to work at a cable factory. As a condition for re-

ceiving these privileges, however, B-Unit inmates were

subject to random strip searches.

In the afternoon of August 12, 1994, Alejo was stopped

as he was leaving the dinner hall by USP Correction Offi-

cer Keith Heckler and ordered to strip. Alejo complied.

Heckler then ordered Alejo in English to hand Heckler his

clothes as he removed them. Heckler contends that Alejo

refused this order, placing his clothes instead on a near-

by wooden bench and telling Heckler also in English to pick

them up himself.

Alejo denies this, and contends that although he under-

stood Heckler’s order to strip—having complied with

such orders on occasions too numerous to list—he did

not understand what Heckler was ordering him to do with

his discarded clothes. It is undisputed that Alejo has

difficulty understanding English. In fact, this was ap-

parently known to prison officials at the time of the strip-

search incident. A November 1993 prisoner report on

Alejo described the extent of his grasp of the English

language: “Caberra-Alejo does not speak English in any

substantial manner and effective communication is only

accomplished by use of an interpreter.”

Nonetheless, Heckler reported Alejo’s noncompliance

to his superior, USP Lieutenant Gary Heller. Heller in-

structed Heckler to write him up for refusal to obey an

order. Heckler did so, and after another lieutenant con-

ducted a short investigation into the incident, which

4 No. 01-1573

revealed Alejo’s defense that he had not understood the

order, the report was referred to the prison disciplinary

committee.

Three days later, the disciplinary committee convened

to consider the incident report and determined that

Alejo had willfully disobeyed Heckler’s order. As a result,

Alejo was removed from the B Unit and the pretrans-

fer program.

On September 12, 1994, Alejo appealed the disciplinary-

committee decision to the prison warden, who denied re-

lief. Alejo then submitted an administrative appeal of the

warden’s decision to the regional director. But that ap-

peal did not challenge the disciplinary committee’s deci-

sion regarding the strip-search incident; instead, it chal-

lenged an unrelated disciplinary determination arising from

a separate incident involving Alejo’s possession of a razor

blade, which had resulted in Alejo being placed in dis-

ciplinary segregation.

The Lawsuit

Rather than further pursuing his administrative ap-

peal of the strip-search incident, on September 14, 1994,

Alejo initiated this action by filing a pro se complaint

written entirely in Spanish. The district court struck

the complaint for noncompliance with Federal Rule of

Civil Procedure 8(a), granting Alejo leave to refile. On

March 27, 1995, Alejo filed his amended pro se complaint,

written in English.

The amended complaint named Heller and Heckler, as

well as various other prison officials, as defendants. But

in Alejo’s statement of his claim, only Heller is referred

to by name. He described the defendants as “Gary E. Heller,

and other John Does of the Bureau of Prisons,” and accused

them of violating his constitutional rights by (i) harassing

No. 01-1573 5

him on account of his Cuban ancestry and in retaliation

for prior complaints about his custodial conditions, (ii)

inflicting disproportionate punishment upon him also on

account of his Cuban ancestry, and (iii) denying him

Spanish-speaking interpreters when issuing orders and

preventing him from meaningful access to the courts by

refusing to address his administrative appeals written

in Spanish.

On May 17, 1995, the district court granted Alejo per-

mission to proceed in forma pauperis, but sua sponte

dismissed Heckler and every other defendant except for

Heller from the suit, finding that in his statement of

claim, Alejo made no allegation that any of them were

personally involved in the events giving rise to the suit.

The dismissal regarding the other defendants was granted

without prejudice, and the case against Heller was referred

to a magistrate judge for further proceedings.

Heller moved for a more definite statement on July 24,

1995, a motion which the district court summarily denied

a month later. On January 30, 1996, the district court

appointed counsel for Alejo.

A year later, Heller filed a motion seeking dismissal or,

alternatively, summary judgment on Alejo’s claims, argu-

ing that he was not personally involved in the events

at issue and that even if he was, he did not violate any

of Alejo’s clearly established constitutional rights by

advising Heckler to pursue disciplinary charges against

Alejo and was therefore entitled to qualified immunity.

Because Heller had relied on materials outside of the

pleadings, the motion was treated as one for summary

judgment.

In his report and recommendation issued June 17, 1997,

the magistrate judge recommended rejection of Alejo’s

First Amendment access-to-the-courts claim and reten-

tion of the remaining claims. On August 19, 1997, the

6 No. 01-1573

district court adopted the report and recommendation in

full, granting summary judgment in favor of Heller on

the access-to-the-courts claim and denying relief as to

the balance of the claims.

For the next three years, the case meandered through

discovery and pretrial motions. On July 14, 2000, Heller

filed his second motion for summary judgment, claiming

that because success on Alejo’s claims arising out of the

strip-search incident would necessarily invalidate the

disciplinary determination resulting from that incident, he

was precluded from collaterally seeking damages relief

without having first invalidated that determination di-

rectly. Heller noted that Alejo had not exhausted his

administrative remedies to expunge that incident report

or the decision of the disciplinary committee. Heller

also reasserted his lack-of-personal-involvement and

qualified-immunity arguments. On August 7, 2000, Alejo

filed his response to the motion.

The magistrate judge agreed with Heller’s position

that this Circuit’s precedent interpreting the Supreme

Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994),

required Alejo to invalidate the disciplinary determina-

tion before collaterally attacking it in a Bivens-style suit.

On September 9, 2000, he recommended the complaint

be dismissed. Alejo filed his objections to the magistrate

judge’s report and recommendation on September 25, 2000.

On November 13, 2000, the district judge adopted

the report and recommendation and dismissed without

prejudice Alejo’s claims relating to the strip-search incident.

The district judge recognized that in a decision issued

August 11, 2000, we overruled our prior precedent apply-

ing Heck to prisoners who challenge only the conditions

of their confinement, DeWalt v. Carter, 224 F.3d 607, 617-

18 (7th Cir. 2000); however, he concluded that the invalid-

ity of that prior precedent was “unrelated to the principles

at issue in this case.”

No. 01-1573 7

Further, the court ordered Alejo to show cause why

it should not dismiss for want of prosecution any remain-

ing claims that did not arise out of the strip-search inci-

dent. On February 22, 2001, the district court ruled on

the show-cause order, finding that for several years

Alejo had not mentioned any specific event other than

the proceedings relating to the strip-search incident,

and therefore the court dismissed without prejudice all

remaining claims for want of prosecution. Having then

dispensed with all of Alejo’s claims, the district court

entered final judgment pursuant to Federal Rule of

Civil Procedure 58, and Alejo filed a timely notice of appeal.

Alejo’s appeal challenges only the dismissal of Heckler

for lack of personal involvement2 and the dismissal of

the claim arising out of the strip-search incident against

Heller. Neither the grant of summary judgment on the

First Amendment claim nor the want-of-prosecution

dismissal of any remaining claims not arising from the

August 12, 1994 strip-search incident are at issue here.

We restrict our discussion accordingly.

II. ANALYSIS

Heckler’s Dismissal

Alejo attacks the district court’s sua sponte decision—

made at the threshold, in forma pauperis determina-

tion stage—to dismiss the claim against Heckler with-

out prejudice because of Alejo’s failure to allege facts

2

Although this order also dismissed prison-official defendants

“K. Murphy, Fernando Castillo, Mr. Miranda, Lt. Miliacia, M.L.

Batts, Mr. Koillow, and Jesus Navarro,” (R. 12) Alejo does not

challenge the dismissal of these defendants. Our discussion is

therefore restricted to the district court’s ruling as applied to

Heckler alone.

8 No. 01-1573

sufficient to establish Heckler’s personal involvement in

the allegedly unconstitutional conduct.

As an initial matter, Heckler argues that Alejo has

waived any argument contesting Heckler’s dismissal.

Heckler’s argument is that because he was dismissed

without prejudice, a ruling which invited Alejo to amend

his complaint to add allegations of Heckler’s personal

involvement, and because Alejo never amended his com-

plaint to include these allegations, we should not now

entertain his objections to the district court’s prior dis-

missal.

We have squarely rejected this type of “waiver” argu-

ment previously and do so again here. See Bastian v.

Petren Res. Corp., 892 F.2d 680, 682 (7th Cir. 1990). Alejo

argues that the dismissal of Heckler was erroneous—that

his amended pro se complaint was sufficient to place

Heckler on notice of his personal involvement and to

state a claim against him, and as a result the complaint

against him should not have been dismissed sua sponte.

Alejo could not have challenged this dismissal on appeal

at the time the decision was rendered, because the dis-

missal of a complaint without prejudice is generally not

considered a final, appealable decision. See id.; see also

Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003);

Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001);

Furnace v. Bd. of Trustees of S. Ill. Univ., 218 F.3d 666, 669

(7th Cir. 2000). A final order was not rendered in this case

until the court entered judgment pursuant to Rule 58. And

“[w]hen a final decision is appealed, the appeal brings up

all previous rulings of the district judge adverse to the

appellant.” Bastian, 892 F.2d at 682 (citing Asset Alloca-

tions & Mgmt. Co. v. W. Employers Ins. Co., 892 F.2d 566,

569 (7th Cir. 1989)). Thus, this appeal presents Alejo with

the opportunity to challenge all of the district court’s prior

adverse rulings. But if before this appeal Alejo would

have amended his complaint in accordance with what he

No. 01-1573 9

now asserts was an erroneous ruling, he would have

abandoned the principal arguments he raises here. Cf. id.

at 683. Rather than signifying his surrender of the ar-

gument raised here, his refusal to amend reflects, if any-

thing, his resolute adherence to it. We now turn to the

merits.

This case was filed before the enactment of the Prison

Litigation Reform Act of 1996 (“PLRA”). Therefore—pre-

PLRA—the court could have dismissed the claim against

Heckler only if the court found Alejo’s claim to be frivolous

or malicious. See 28 U.S.C. § 1915(d) (1994); Walker v.

Taylorville Corr. Ctr., 129 F.3d 410, 412 (7th Cir. 1997)

(“[B]ecause [the petitioner’s] appeal was filed before April

24, 1996, the effective date of the PLRA, we look to the

former version of § 1915(d) to see if the claim was ‘frivolous

or malicious,’ rather than asking in addition whether

the proposed complaint failed to state a claim upon which

relief can be granted, as the amended § 1915(e)(2)(B)

requires.”). Which is to say, it must have found that

Alejo could “make no rational argument in law or fact to

support his . . . claim for relief” against Heckler. Williams

v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988), affirmed sub

nom., Neitzke v. Williams, 490 U.S. 319 (1989).

A plaintiff bringing a civil rights action must prove that

the defendant personally participated in or caused the

unconstitutional actions. Duncan v. Duckworth, 644 F.2d

653, 655 (7th Cir. 1981). Thus, even under the pre-PLRA

standard of § 1915(d), we have upheld sua sponte dismissals

by the district court when the plaintiff did not allege

personal involvement on the part of the defendant. See,

e.g., Walker, 129 F.3d at 413 (citing Whitford v. Boglino, 63

F.3d 527, 530-31 (7th Cir. 1995)).

Here, Alejo’s complaint does not allege that Heckler

personally participated in or caused any allegedly unconsti-

10 No. 01-1573

tutional action.3 Although he named nine defendants in

his complaint, Alejo specifically accused only defendant

Heller of violating his constitutional rights. Rather than

make any personal allegations against Heckler, Alejo

accused groups of unknown “John Does” of participating

in the allegedly unconstitutional conduct.

Because of the factual circumstances in this case, that

phrase is insufficient to allege Heckler’s personal involve-

ment. The phrase “John Does” is fatally overbroad in

suggesting that an uncertain number of Bureau of Pris-

ons officials, potentially from every level, participated in

denying Alejo his constitutional rights. At the same time,

“John Does” is fatally underinclusive, because it indi-

cates that those defendants—other than Heller—who vio-

lated Alejo’s constitutional rights were unknown to him.

In fact, Alejo included Heckler as a named defendant at

USP Marion, thus plainly indicating that Heckler was

known to Alejo. Because only unknown John Does and

Heller were alleged to be personally involved, it follows

that Heckler was excluded from the claim.

To the extent that Alejo alleged unconstitutional con-

duct on behalf of USP officials that he knew and with whom

he had personally interacted, he had the burden to

name them specifically in his complaint. Absent this, the

district court could not infer that Heckler was an unknown

John Doe and was personally involved in the allegedly

unconstitutional conduct. For this reason, the sua sponte

dismissal of Heckler was proper.

3

We have learned about Heckler’s alleged interaction with Alejo

during the strip-search incident at issue only by virtue of Heller’s

substantive motions, which included as exhibits Alejo’s disciplin-

ary records, the contemporaneous incident report that Heckler

submitted, and Heller’s declaration regarding the events. The

amended complaint is silent regarding this specific incident

and the actors involved.

No. 01-1573 11

Heller’s Dismissal

In his report and recommendation on Heller’s second

motion for summary judgment issued September 9, 2000,

the magistrate judge found that Alejo’s claims arising

out of the strip-search incident necessarily implied the

invalidity of the disciplinary proceedings resulting from

that incident. Citing Heck and Miller v. Ind. Dept. of Corr.,

75 F.3d 330 (7th Cir. 1996), the magistrate judge con-

cluded that Alejo’s civil-rights claim would not accrue

until the decision to impose discipline had been reversed,

expunged, declared invalid, or otherwise called into ques-

tion. Citing our holding in Stone-Bey v. Barnes, 120 F.3d

718 (7th Cir. 1997), he then concluded that rather than

staying the case until Alejo successfully challenged the

validity of the underlying disciplinary proceedings (a

decision that could cause the case to remain on the court’s

docket in perpetuity should Alejo’s subsequent attempts

never prove successful), the case should be dismissed

without prejudice to allow Alejo to refile the claim at a

later date should the disciplinary proceedings be invali-

dated. See id. at 721 (applying Heck’s favorable-termina-

tion requirement to all decisions by prison disciplinary

boards that entail some finding of guilt in adjudicating

a disciplinary charge).

The district judge adopted the report and recommenda-

tion, holding that Heck barred Alejo’s Bivens-style claim.

The district court held that dismissal without prej-

udice, rather than a stay, was the proper way to dispose

of Alejo’s suit. In reaching this position, the district

court acknowledged that we had recently overruled Stone-

Bey, see Dewalt, 224 F.3d at 618, but noted that the invalid-

ity of the holding in Stone-Bey was “unrelated to the

principles at issue in this case.”

We disagree with that assessment. In DeWalt, this

court recognized that “a prisoner may bring a § 1983

12 No. 01-1573

claim ‘challenging the conditions of [his] confinement

where [he] is unable to challenge the conditions through

a petition for federal habeas corpus.’ ” Id. at 613 (quoting

Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir. 1999)). In other

words, our opinion in DeWalt holds that where a prisoner-

litigant challenges only the conditions of confinement,

rather than the fact or duration of his confinement, Heck’s

favorable-termination requirement does not apply, be-

cause federal habeas corpus relief is not available. See id.

at 617 (citing Pischke v. Litscher, 178 F.3d 497, 500 (7th

Cir. 1999) (holding that habeas relief is restricted to

claims for which the prisoner “is seeking to ‘get out’ of

custody in some meaningful sense”), and Graham v.

Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (stating that if

a prisoner is challenging “merely the conditions of his

confinement his proper remedy is under civil rights law”

and not federal habeas)).

Under DeWalt, Alejo’s claim against Heller, which arose

out of the strip-search disciplinary proceedings that re-

sulted in his removal from the B-Unit and pretrans-

fer programs, challenges the conditions of his confinement

and cannot be barred by Heck. The district court’s holding

to the contrary was therefore erroneous.

Nevertheless, Heller argues that we should affirm the

district court’s dismissal on other grounds; namely, his

summary-judgment arguments that he was not per-

sonally involved in the August 12, 1994 strip-search

incident and that even if he was, he is entitled to qualified

immunity. This Court has unequivocally stated that with-

out cross-appeal, an appellee may not “attack the decree

with a view either to enlarging his own rights there

under or of lessening the rights of his adversary, whether

what he seeks is to correct an error or to supplement

the decree with respect to a matter not dealt with be-

low.” United States ex rel. Stachulak v. Coughlin, 520 F.2d

931, 937 (7th Cir. 1975) (quotations omitted). The district

No. 01-1573 13

court’s dismissal without prejudice pursuant to its belief

that Heck barred Alejo’s claim was not a ruling on the

merits, see Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d

486, 494 (7th Cir. 2001), cert. denied, 535 U.S. 1034 (2002),

whereas a grant of summary judgment on the basis of

either of Heller’s arguments would be. Accordingly, Heller

seeks to enlarge his rights and supplement the district

court’s decree with a ruling on the merits that was not

reached below. He cannot do this without filing a cross-

appeal.

III. CONCLUSION

Because Alejo’s complaint did not allege (and in fact

precluded) Heckler’s personal involvement in the alleged

deprivation of Alejo’s constitutional rights, the district

court’s sua sponte dismissal of Heckler at the in forma

pauperis stage was proper. The district court, however,

incorrectly decided that Alejo’s Bivens-style claim against

Heller was barred by Heck’s favorable-termination re-

quirement. For these reasons, the dismissal of Keith

Heckler is AFFIRMED, and the dismissal of the suit against

Gary E. Heller is REVERSED and the case is REMANDED

for further proceedings.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—5-13-03