Jeryme Morgan v. Minh Schott

In the

United States Court of Appeals

For the Seventh Circuit

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No. 16-2384

JERYME MORGAN,

Plaintiff-Appellant,

v.

MINH SCHOTT, TIM VEATH,

and HUDSON MAYNARD,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 13-cv-0881-SCW — Stephen C. Williams, Magistrate Judge.

____________________

ARGUED SEPTEMBER 5, 2018 — DECIDED FEBRUARY 5, 2019

____________________

Before KANNE, SYKES, and ST. EVE, Circuit Judges.

SYKES, Circuit Judge. Illinois prison officials issued a dis-

ciplinary report charging inmate Jeryme Morgan with

offenses stemming from a violent assault on fellow prison-

ers. Morgan disputed the charges and asked the authorities

to call a witness to testify at his Adjustment Committee

hearing. But the Committee never called Morgan’s witness.

He was found guilty and the Committee imposed punish-

2 No. 16-2384

ment of one year of segregation, various status and access

restrictions, and revocation of three months of good-time

credits. Morgan filed a grievance challenging his punish-

ment on due-process grounds and appealed its subsequent

denial to the Administrative Review Board (“the Board”).

The Board adjusted the revocation of good-time credits to

one month but affirmed the Committee’s due-process ruling,

concluding that Morgan’s witness request did not comply

with prison rules.

Alleging a raft of constitutional violations, Morgan sued

three officers for damages under 42 U.S.C. § 1983 claiming

that the failure to call his witness violated his right to due

process. The officers moved for summary judgment citing

the favorable-termination rule announced in Heck v.

Humphrey, 512 U.S. 477 (1994). Heck holds that “when a state

prisoner seeks damages in a § 1983 suit, the district court

must consider whether a judgment in [his] favor … would

necessarily imply the invalidity of his conviction or sen-

tence.” Id. at 487. Where a favorable judgment would have

that effect, no § 1983 claim has accrued and “the complaint

must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Id.

Morgan countered that Heck is inapplicable due to his waiv-

er of all claims relating to the revocation of his good-time

credits. A magistrate judge rejected Morgan’s attempt to skirt

Heck and ruled that his due-process claim was not cogniza-

ble under § 1983.

We affirm. Prisoners cannot make an end run around

Heck by filing an affidavit waiving challenges to the portion

of their punishment that revokes good-time credits. We

recently addressed that very tactic and found it incompatible

No. 16-2384 3

with the Heck line of cases. Haywood v. Hathaway, 842 F.3d

1026 (7th Cir. 2016). Morgan provides no reason to question

Haywood, and we reaffirm its reasoning. Morgan’s attempt to

analogize his case to Wilkinson v. Dotson, 544 U.S. 74 (2005),

and Skinner v. Switzer, 562 U.S. 521 (2011), misunderstands

those decisions. Judgment in Morgan’s favor would neces-

sarily imply the invalidity of his prison discipline. Thus, no

§ 1983 claim has accrued. This suit is premature and must be

dismissed without prejudice.

I. Background

Morgan is serving sentences for robbery, armed robbery,

and sexual assault. For most of his incarceration—and at all

times relevant to this case—he has been housed at Menard

Correctional Center (“Menard”). In January 2012 Officer

Hudson Maynard issued a disciplinary report accusing

Morgan of taking part in an assault that occurred three

months earlier in Menard’s east yard. The report charged

Morgan with conspiring to attack the victims, joining the

attack, possessing dangerous contraband, causing a disturb-

ance, interfering with prison investigations, and engaging in

unauthorized organizational activities.

Menard gives prisoners an opportunity to formally re-

quest witnesses at a disciplinary hearing; the disciplinary

report provides a space to do so. If called, those witnesses

testify at the prisoner’s Adjustment Committee hearing.

Morgan’s request was not a model of clarity. On the line

requesting a description of the subject of the witness’s testi-

mony, Morgan wrote the name “James Lewis” followed by

the words “where abouts.” On the line reserved for the

witness’s name and other identifying information, Morgan

again wrote “James Lewis” but nothing else.

4 No. 16-2384

At Morgan’s Adjustment Committee hearing on

January 31, prison officials did not call James Lewis. The

Committee, which included Lieutenant Minh Schott and

Officer Tim Veath, found Morgan guilty and recommended

revoking three months of good-time credits and adding one

year of segregation, one year of lowered status, and several

access restrictions. Morgan filed a grievance arguing that the

Committee’s failure to call Lewis violated his right to due

process. Morgan’s grievance was denied, so he appealed to

the Board. The Board ruled that Morgan’s witness request

did not meet the minimum requirements under prison rules.

Illinois regulations require that such requests “shall be in

writing on the space provided in the disciplinary report and

shall include an explanation of what the witnesses would

state.” ILL. ADMIN. CODE tit. 20, § 504.80(f)(2). Because

Morgan failed to adequately identify his witness or describe

his testimony, and because officials failed to locate a James

Lewis at Menard, the Board concluded that Morgan’s hear-

ing comported with due process.

Rather than challenge the Board’s ruling in state court,

Morgan filed a pro se complaint in the Southern District of

Illinois seeking damages under § 1983. He alleged numerous

constitutional violations ranging from excessive force to

deliberate indifference. Those claims were severed and

proceeded as a separate case. The district court did not

initially identify a due-process claim in Morgan’s complaint.

However, a magistrate judge later found that Morgan had

adequately alleged a violation of due process against

Lieutenant Schott and Officer Veath based on the Commit-

tee’s failure to call James Lewis. Schott and Veath moved for

summary judgment, arguing that Morgan’s claim was barred

No. 16-2384 5

by Heck, no reasonable jury could find a constitutional

violation, and qualified immunity applies.

As part of Morgan’s strategy to avoid the Heck bar, he

filed an affidavit purporting to “abandon any and all present

and future challenges” and “waiv[e] for all times all claims”

pertaining to the portion of his punishment that impacted

the duration of his confinement. He preserved only “claims

challenging the sanctions affecting the conditions of [his]

confinement.” Morgan argued that his affidavit rendered

Heck inapplicable, citing the Second Circuit’s decision in

Peralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006).

The magistrate judge concluded that Heck barred

Morgan’s suit and entered summary judgment for Schott

and Veath, dismissing Morgan’s due-process claim with

prejudice. The judge rejected Morgan’s attempt to use strate-

gic waiver to “dodge” Heck. He said Morgan’s due-process

claim “call[s] into question the validity of the prison disci-

pline[] because to accept that claim necessarily implie[s] that

the discipline was somehow invalid.”

II. Discussion

We review a summary judgment de novo, reading the

record in the light most favorable to Morgan and drawing all

reasonable inferences in his favor. Tolliver v. City of Chicago,

820 F.3d 237, 241 (7th Cir. 2016). Morgan renews his strate-

gic-waiver argument in an effort to avoid the Heck bar. He

also attempts to evade Heck by arguing that success on the

merits would mean at most a new hearing, not a reduction

of his term of imprisonment.

We begin with an overview of the favorable-termination

rule established in Heck v. Humphrey. Federal law affords

6 No. 16-2384

state prisoners two venerable gateways to relief: the Civil

Rights Act of 1871, codified at 42 U.S.C. § 1983, and habeas

corpus review of state adjudications under 28 U.S.C. § 2254.

They are not interchangeable. The Supreme Court made this

fact crystal clear in a line of cases barring § 1983 suits predi-

cated on claims reserved for habeas challenges. In Preiser v.

Rodriguez, 411 U.S. 475, 476 (1973), the Court evaluated a

§ 1983 claim attacking prison discipline proceedings on

constitutional grounds and seeking restoration of good-time

credits. The Court explained that habeas corpus—not

§ 1983—is the “specific instrument to obtain release” from

unlawful imprisonment. Id. at 486. Thus, when a prisoner

challenges “the fact or duration of his confinement,” he fails

to state a cognizable § 1983 claim. Id. at 489.

The Court expanded on Preiser in Heck v. Humphrey,

512 U.S. at 486–87, in which the prisoner–plaintiff sought

damages for wrongful conviction. Heck claimed that Indiana

prosecutors had destroyed exculpatory evidence and en-

gaged in an “unlawful, unreasonable, and arbitrary investi-

gation.” Id. at 479. The Court held that

in order to recover damages for [an] allegedly

unconstitutional conviction or imprisonment,

or for other harm caused by actions whose un-

lawfulness would render a conviction or sen-

tence 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.

No. 16-2384 7

Id. at 486–87. The Court distinguished Wolff v. McDonnell,

418 U.S. 539 (1974), in which there was no “reason to be-

lieve[] that using the wrong procedures necessarily vitiated

the denial of good-time credits.” Heck, 512 U.S. at 483. Con-

versely, a judgment in Heck’s favor would “necessarily

imply the invalidity of [Heck’s] conviction or sentence.” Id. at

487. When a judgment for the plaintiff would have that

effect, no § 1983 claim accrues until the plaintiff succeeds in

invalidating the underlying conviction or sentence.

The Court extended Heck to the prison-discipline context

in Edwards v. Balisok, 520 U.S. 641 (1997). Balisok alleged that

the presiding officer at his conduct hearing was biased and

deprived him of the opportunity to present exculpatory

witness testimony. Id. at 643. Some of Balisok’s good-time

credits were revoked. He did not challenge the result of the

proceeding or the punishment he received. Instead, he

claimed in a § 1983 suit that he was deprived of due process.

Id. at 645. The Court held that judgment for Balisok would

necessarily imply the invalidity of his disciplinary sentence.

Id. at 648. The Court reasoned that denial of the opportunity

to present witnesses was “an obvious procedural defect, and

state and federal courts have reinstated good-time credits

(absent a new hearing) when it is established.” Id. at 647.

Thus, Heck’s favorable-termination rule applied. Id. at 648.

A. Strategic Waiver

Morgan argues that challenges to the conditions of a pris-

oner’s confinement—as opposed to the duration of that

confinement—do not implicate Heck, so a prisoner should be

permitted to challenge a disciplinary proceeding via § 1983 if

he waives all challenges to duration-of-confinement sanc-

8 No. 16-2384

tions. Morgan’s is not a novel argument. We have rejected it

before and see no reason to change course.

When an inmate is found guilty of a disciplinary viola-

tion, prison officials can apply sanctions reducing the in-

mate’s privileges within the facility. They can also revoke

good-time credits, a sanction that has the effect of lengthen-

ing the inmate’s term of confinement. Morgan relies on

Peralta v. Vasquez, 467 F.3d 98, in which the Second Circuit

considered the mixed-sanctions scenario and chose to em-

brace strategic waiver as a means of removing the Heck bar.

The court held that a prisoner facing condition-of-

confinement sanctions and duration-of-confinement sanc-

tions could challenge the former under § 1983 without

complying with Heck’s favorable-termination requirement.

Id. at 104. All the prisoner must do is “abandon, not just now,

but also in any future proceeding, any claims he may have

with respect to the duration of his confinement that arise out

of the proceeding he is attacking.” Id.

We rejected Peralta in Haywood v. Hathaway, 842 F.3d 1026.

The approach Morgan urges us to adopt rests on a misun-

derstanding of Heck. The favorable-termination rule is more

than a procedural hurdle that plaintiffs can skirt with artful

complaint drafting or opportunistic affidavits. Rather, it is

grounded in substantive concerns about allowing conflicting

judgments. As we explained in Haywood, the Heck rule is “a

version of issue preclusion (collateral estoppel), under which

the outstanding criminal judgment or disciplinary sanction,

as long as it stands, blocks any inconsistent civil judgment.”

842 F.3d at 1029. Neither Peralta nor Morgan can account for

this aspect of Heck.

No. 16-2384 9

Endorsing Morgan’s arguments would undercut another

feature of the Court’s favorable-termination jurisprudence.

Heck held that “a § 1983 cause of action for damages at-

tributable to an unconstitutional conviction or sentence does

not accrue until the conviction or sentence has been invali-

dated.” 512 U.S. at 489–90 (emphasis added). Morgan’s

argument is incompatible with that holding. If a prisoner’s

challenge to a disciplinary hearing implies the invalidity of

the resulting sanctions, no § 1983 claim has accrued. And

“[i]f the claim has not accrued, it cannot matter what relief a

prisoner seeks.” Haywood, 842 F.3d at 1028. Selective waiver

simply doesn’t alter the analysis.

Morgan concedes that Haywood controls his case and asks

us to overrule it. But we do not reverse our precedents

lightly; we need “compelling reasons” to do so. Russ v.

Watts, 414 F.3d 783, 788 (7th Cir. 2005). The Supreme Court

has not cast doubt on Haywood, and it does not represent a

minority approach among our sister circuits. See Glaser v.

Wound Care Consultants, Inc., 570 F.3d 907, 915 (7th Cir. 2009)

(discussing circumstances in which we reconsider our

precedents). Moreover, we remain convinced that “Peralta is

incompatible with Heck and its successors.” Haywood,

842 F.3d at 1030. State prisoners cannot avoid the favorable-

termination rule by engaging in strategic waiver. If judgment

for a § 1983 plaintiff would necessarily imply the invalidity

of his punishment, the Heck rule applies and favorable

termination of the underlying proceeding is a prerequisite to

relief. See Nelson v. Campbell, 541 U.S. 637, 646 (2004).

B. Dotson and Skinner

Morgan also compares his case to Wilkinson v. Dotson,

544 U.S. 74 (2005), and Skinner v. Switzer, 562 U.S. 521 (2011),

10 No. 16-2384

but the analogy is inapt. In Dotson the Court dealt with two

§ 1983 suits challenging the retroactivity of certain state

parole-hearing procedures on due-process grounds. The

plaintiffs sought declaratory relief and an injunction order-

ing parole hearings under a different set of rules. Dotson,

544 U.S. at 76–77. The Court held that the plaintiffs’ claims

were cognizable under § 1983 because success would mean

“new [parole] eligibility review” for one plaintiff and “a new

parole hearing” for the other, neither of which would “nec-

essarily spell immediate or speedier release” or imply the

invalidity of their sentences. Id. at 81 (emphasis omitted). In

Skinner the Court allowed a Texas prisoner to seek postcon-

viction DNA testing using a § 1983 suit because “[s]uccess …

gains for the prisoner only access to the DNA evidence,

which may prove exculpatory, inculpatory, or inconclusive.”

562 U.S. at 525. Thus, judgment for the plaintiff wouldn’t

necessarily imply unlawful confinement by the State.

It’s not clear that Morgan made this argument below. But

in the interest of completeness, we address it here. Morgan

misses a key distinction between his case and Dotson and

Skinner—a distinction we’ve discussed before. See Burd v.

Sessler, 702 F.3d 429, 432–34 (7th Cir. 2012). The plaintiffs in

Dotson and Skinner sought purely prospective relief: parole

hearings under different rules in Dotson; DNA testing in

Skinner. As we explained in Burd, the Dotson and Skinner

plaintiffs sought entirely forward-looking relief: access to

“procedural pathways that, if successfully employed, might

[have led] to the overturning of the underlying conviction.”

Burd, 702 F.3d at 433 (emphasis added). Judgment for those

plaintiffs would not have implied the invalidity of their

convictions or sentences.

No. 16-2384 11

Morgan’s claim, in contrast, is entirely backward looking.

He alleges a due-process violation at the hearing that gener-

ated his disciplinary sanctions. A damages judgment for

Morgan would amount to a judicial determination that

prison officials infringed Morgan’s constitutional rights by

failing to call a witness in his defense, rendering the pro-

ceeding unfair. Such a judgment would straightforwardly

imply the invalidity of his punishment, triggering Heck’s

favorable-termination rule. Balisok, 520 U.S. at 648; see also

Lusz v. Scott, 126 F.3d 1018, 1022 (7th Cir. 1997) (applying the

Heck bar where the plaintiff argued “that he was denied the

opportunity to call requested witnesses in his favor”). We’ve

clarified before that “‘[i]mply’ is not synonymous with

‘invalidate.’” Hill v. Murphy, 785 F.3d 242, 248 (7th Cir. 2015).

Judgment in Morgan’s favor would allow him “to argue that

he had been determined by a court to have been unjustly”

punished—an outcome that “Heck forbids.” Id.

Morgan argues that Illinois regulations make all the dif-

ference. By rule, “[t]he Director, Deputy Director or Chief

Administrative Officer shall remand the decision to the

Adjustment Committee for new proceedings if the proceed-

ings are found to be defective due to[] … [i]mproper exclu-

sion of witnesses.” ILL. ADMIN. CODE tit. 20, § 504.90(a)(3). In

Morgan’s view this provision makes his case like Dotson and

Skinner, where success merely meant access to new proceed-

ings. Morgan claims that a judgment in his favor would

bring “a new hearing that appropriately considers previous-

ly excluded evidence.” The hearing could go either way—

like the parole hearings in Dotson or the testing in Skinner—

so Heck poses no problem for Morgan’s suit.

12 No. 16-2384

We disagree. Heck is not inapplicable merely because

state prison regulations call for replacement proceedings in

certain situations. Heck prevents the entry of any judgment

that would cast doubt on the validity of the plaintiff’s pun-

ishment or conviction. Burd, 702 F.3d at 433. To repeat, in

Dotson the plaintiffs sought entirely forward-looking relief in

the form of new hearings under a different set of rules.

Judgment granting that relief wouldn’t impugn their sen-

tences. Morgan seeks money damages—a classic retrospec-

tive remedy. That Morgan might receive additional

administrative proceedings as a collateral consequence of

receiving a damages judgment does not render that hypo-

thetical judgment any more consistent with the validity of

his disciplinary punishment.

It’s worth noting that Morgan could have challenged the

Board’s ruling in other ways. Id. at 436 (holding that “Heck

applies where a § 1983 plaintiff could have sought collateral

relief … but declined the opportunity”). Under Illinois law

the writ of certiorari empowers circuit courts to review

administrative determinations “when the act conferring

power on the agency does not expressly adopt the Adminis-

trative Review Law and provides for no other form of re-

view.” Hanrahan v. Williams, 673 N.E.2d 251, 253 (Ill. 1996).

Illinois statutes governing prison discipline do not provide

for judicial review, so “prison disciplinary proceedings are

reviewable in an action for certiorari.” Fillmore v. Taylor,

80 N.E.3d 835, 849 (Ill. App. Ct. 2017). Alternatively, Morgan

could have asked a state court to issue a writ of mandamus

ordering Menard officials to conduct a new hearing. Dye v.

Pierce, 868 N.E.2d 293, 296 (Ill. App. Ct. 2006) (“An allegation

of a due-process-rights violation … states a cause of action in

mandamus.”). And after exhausting state review, he could

No. 16-2384 13

have sought relief under the federal habeas corpus statute.

Instead he immediately sued for money damages under

§ 1983—and ran directly into Heck.

Although Morgan does not currently have a cognizable

§ 1983 claim, it is at least possible that he could convince a

state court to provide the favorable termination required by

Heck. Illinois courts apply a six-month limitations period to

certiorari actions, but a court might hear a late certiorari

action if no “public detriment or inconvenience would result

from [the] delay.” Alicea v. Snyder, 748 N.E.2d 285, 290 (Ill.

App. Ct. 2001).

Heck-barred claims must be dismissed. Johnson v.

Winstead, 900 F.3d 428, 436 (7th Cir. 2018). But given the

possibility of future state-court proceedings, Morgan’s claim

should have been dismissed without prejudice. See Moore v.

Burge, 771 F.3d 444, 446 (7th Cir. 2014); Polzin v. Gage,

636 F.3d 834, 839 (7th Cir. 2011). We modify the judgment to

reflect a dismissal without prejudice. As modified, the

judgment is affirmed.

AFFIRMED AS MODIFIED.