Amicus Curiae Brief — James LeBlanc, Petitioner v. Brian McNeal

No. 24-19

In the Supreme Court of the United States

JAMES LEBLANC, PETITIONER

v.

BRIAN MCNEAL, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR TEXAS, ALABAMA, ALASKA, GEORGIA,

INDIANA, IOWA, KANSAS, MISSISSIPPI, MISSOURI,

MONTANA, NORTH DAKOTA, OHIO, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE, AND

VIRGINIA AS AMICI CURIAE IN SUPPORT OF

PETITIONER

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

JOSHUA C. FIVESON

Assistant Solicitor General

T ABL E OF C O NT ENT S

Page(s)

Table of Authorities ......................................................... II

Interest of Amici Curiae .................................................... 1

Summary of Argument ...................................................... 1

Argument ............................................................................ 4

I. The Fifth Circuit Misunderstood This Court’s

Precedent. ............................................................... 4

A. The Court’s three lines of cases. ..................... 4

1. The Preiser line of cases. ........................... 5

2. The Heck line of cases. ............................... 8

3. Permissible §1983 claims. ........................ 11

B. The Preiser line of cases controls here. ....... 13

C. The Fifth Circuit misapplied Preiser. .......... 17

II. The Fifth Circuit’s Rule Invites

Gamesmanship. ..................................................... 18

III. The Question is Important and Recurring. ....... 20

Conclusion ......................................................................... 22

(I)

II

T ABL E OF AU T HORI T IE S

Page(s)

Cases:

Alexander v. Sandoval,

532 U.S. 275 (2001) ........................................................ 15

Booth v. Churner,

532 U.S. 731 (2001) ...................................................19-20

Braden v. 30th Jud. Cir. Ct. of Ky.,

410 U.S. 484 (1973) ........................................................ 16

Bucklew v. Precythe,

587 U.S. 119 (2019) ........................................................ 19

Carey v. Piphus,

435 U.S. 247 (1978) .......................................................... 9

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 (2005) ........................................................ 15

Cooper v. Pate,

378 U.S. 546 (1964) (per curiam) ................................. 12

Crittindon v. LeBlanc,

37 F.4th 177 (5th Cir. 2022), cert. denied, 144

S. Ct. 90 (2023) ............................................................... 14

DeVillier v. Texas,

601 U.S. 285 (2024) ........................................................ 21

Dist. Att’y’s Off. for Third Jud. Dist. v. Osborne,

557 U.S. 52 (2009) .......................................................... 19

Edwards v. Balisok,

520 U.S. 641 (1997) ........................................................ 11

Ford Motor Co. v. EEOC,

458 U.S. 219 (1982) ........................................................ 17

Haines v. Kerner,

404 U.S. 519 (1972) (per curiam) ................................. 12

III

(Cases Ctd.)

Heck v. Humphrey,

512 U.S. 477 (1994) ........................... 1-2, 8-11, 13, 16, 20

Hicks v. LeBlanc,

81 F.4th 497 (5th Cir. 2023) .................................... 17, 20

Hill v. McDonough,

547 U.S. 573 (2006) ........................................................ 13

Houghton v. Shafer,

392 U.S. 639 (1968) (per curiam) ................................. 12

Hudson v. McMillian,

503 U.S. 1 (1992) .............................................................. 2

Manuel v. City of Joliet,

580 U.S. 357 (2017) .......................................................... 9

McCarthy v. Bronson,

500 U.S. 136 (1991) ........................................................ 12

McDonough v. Smith,

588 U.S. 109 (2019) .......................................... 2, 9, 11, 13

Nance v. Ward,

597 U.S. 159 (2022) .................................................... 1, 13

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ........................................................ 16

Owens v. Okure,

488 U.S. 235 (1989) ........................................................ 18

Preiser v. Rodriguez,

411 U.S. 475 (1973) .................... 1-8, 10-15, 17-18, 20-21

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639 (2012) ........................................................ 14

Randell v. Johnson,

227 F.3d 300 (5th Cir. 2000) (per curiam) .................... 2

Rose v. Lundy,

455 U.S. 509 (1982) ........................................................ 16

IV

(Cases Ctd.)

Savory v. Cannon,

947 F.3d 409 (7th Cir. 2020) (en banc) ........................ 10

United States v. Bormes,

568 U.S. 6 (2012) ............................................................ 15

Varity Corp. v. Howe,

516 U.S. 489 (1996) ........................................................ 14

Wallace v. Kato,

549 U.S. 384 (2007) ........................................................ 18

Wilkinson v. Dotson,

544 U.S. 74 (2005) ............................................ 1, 7, 12, 17

Wolff v. McDonnell,

418 U.S. 539 (1974) .......................................................... 7

Woodford v. Ngo,

548 U.S. 81 (2006) .................................................... 16, 19

Statutory Provisions:

28 U.S.C.

§2254 .............................................................................. 5, 7

42 U.S.C.:

§1983 .............................................................................1-21

§1997e(a) ......................................................................... 19

Other Authorities:

RESTATEMENT (FIRST) OF TORTS

§918 (1939) ..................................................................... 17

CHARLES T. MCCORMICK, LAW OF

DAMAGES 127 (1935)...................................................... 17

I NT EREST OF AM IC I CU RIAE

Amici curiae are the States of Texas, Alabama,

Alaska, Georgia, Indiana, Iowa, Kansas, Mississippi,

Missouri, Montana, North Dakota, Ohio, South Carolina,

South Dakota, Tennessee, and Virginia. Officials within

these States are regularly defendants in cases brought

under 42 U.S.C. §1983 and the federal habeas statutory

scheme. Furthermore, all States have a fundamental interest in the administration of prisons. Because this petition concerns an important and unsettled question

about the proper interpretation of these federal statutes,

it implicates Amici’s interests.*

S UMMARY O F A RGUME NT

The Court has drawn a sharp line between three situations. In Preiser v. Rodriguez, 411 U.S. 475 (1973), the

Court held that §1983 does not apply to “actions that lie

‘within the core of habeas corpus.’” Nance v. Ward, 597

U.S. 159, 167 (2022) (quoting Wilkinson v. Dotson, 544

U.S. 74, 79 (2005)). Thus, under the Preiser line of cases,

a prisoner cannot use §1983 to get out of prison early. By

enacting a more specific scheme for challenges to “the

fact or duration of [a prisoner’s] confinement,” Preiser,

411 U.S. at 489, Congress displaced the more general

§1983 cause of action. Not only is that conclusion compelled by the familiar rule that the specific governs the

general, but giving primacy to the federal habeas scheme

also better respects federalism. See id. at 491.

By contrast, in Heck v. Humphrey, 512 U.S. 477

(1994), the Court held that if “a judgment in favor of the

* No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily

to its preparation or submission. On July 29, 2024, counsel of record

for all parties received notice of amici’s intention to file this brief.

(1)

2

plaintiff would necessarily imply the invalidity of his conviction or sentence,” there is no §1983 cause of action,

even if the plaintiff is only seeking damages—which are

not available under federal habeas. Id. at 487. Heck thus

imposes a “favorable[-]termination requirement.” Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) (per curiam). Importantly, as Heck explains, this line of cases is

about how to interpret §1983 itself given the statute’s

common law backdrop and so has nothing to do with reconciliation between §1983 and federal habeas. That is

why the Court could explain that “the principle barring

collateral attacks—a longstanding and deeply rooted

feature of both the common law and our own jurisprudence—is not rendered inapplicable by the fortuity that

a convicted criminal is no longer incarcerated.” Heck, 512

U.S. at 490 n.10. It is also why Heck’s favorable-termination requirement applies even where a §1983 plaintiff

was acquitted and so never incarcerated in the first

place. See, e.g., McDonough v. Smith, 588 U.S. 109, 117

n.4 (2019).

The Court also has a third line of cases holding that

suits that both do not seek early release (which are

barred by Preiser) and do not imply the invalidity of a

conviction or sentence (which are barred by Heck) can

proceed under §1983, so long as the other requirements

for such a suit are met. Thus, for example, a plaintiff can

challenge his conditions of confinement under §1983 because such a suit neither seeks release from prison nor

implies that the plaintiff was not properly convicted. See,

e.g., Hudson v. McMillian, 503 U.S. 1, 4 (1992).

The petition presents an important question that this

Court has never addressed and that has divided the

lower courts: What framework applies when a plaintiff

alleges he was detained too long but waited to bring a

3

§1983 suit rather than availing himself of federal habeas

during the period of allegedly overlong incarceration?

When this Court’s three lines of cases are disentangled, the answer to that question is straightforward: For

the same reason the Preiser line of cases holds that a

plaintiff cannot use §1983 to seek earlier release from

prison, a plaintiff also cannot use §1983 to challenge the

duration of confinement merely by waiting until incarceration ends. Just as Preiser recognizes that it is unreasonable to presume that Congress intended to nullify its

specific federal habeas scheme by allowing prisoners to

evade that scheme’s requirements by suing under the

more general §1983 cause of action, it is also unreasonable to presume that Congress intended to nullify that

same habeas scheme by allowing prisoners to sleep on

their rights and then bring suit under that same more

general cause of action. And just as Preiser gives primacy to federalism, courts should do the same here—especially because exhausting state remedies furthers important benefits for the entire criminal justice system.

Furthermore, the Fifth Circuit’s rule invites gamesmanship. As Judge Oldham explained, under the Fifth

Circuit’s approach, “a clever prisoner can challenge all

manner of things related to his conviction and sentence

through § 1983 instead of habeas” simply by “sleep[ing]

on his rights until his (ostensible) release date passes.

And voila—the prisoner is no longer forced to choose the

specific habeas remedy over the general § 1983 remedy.”

App.101 (Oldham, J., dissenting from denial of rehearing

en banc). Congress and this Court have both soundly rejected analogous gamesmanship.

Finally, as explained in the petition, the question here

is important and recurring, and courts are divided about

how to address alleged overdetention. Such confusion

4

harms the States and State officials—the defendants in

such cases—but there is nothing the States can do to escape the confusion because it is the product of federal

courts construing federal statutes. Federalism thus

again counsels in favor of this Court’s review.

A RGUMENT

I. The Fifth Circuit Misunderstood This Court’s

Precedent.

Amici agree with Louisiana that this case merits certiorari. Not only is the issue identified by the petition significant, but it implicates broader misunderstanding in

the lower courts about the conceptual bases for and relationships between several of this Court’s bodies of law.

The Court should grant review and clean up this confusion.

Specifically, the Court has three lines of precedent

addressing the interplay, if any, between the federal habeas scheme and §1983. The logic of one of those lines of

cases—the Preiser line—compels the conclusion that a

prisoner alleging overly prolonged detention cannot

sleep on his rights under federal habeas. The Fifth Circuit disagreed because it misunderstood the relationship

between the Court’s lines of precedent. The Court therefore should grant review to correct the Fifth Circuit’s

misunderstanding—one shared by other courts.

A. The Court’s three lines of cases.

To understand the Fifth Circuit’s error, it is

important to distinguish between three analytically

distinct lines of cases. Although lower courts sometimes

conflate these lines and misunderstand their conceptual

distinctions, each has its own logic and scope.

5

1. The Preiser line of cases.

Congress has enacted many statutes that may be relevant to prisoners, but two are particularly important. In

1871, Congress enacted §1983, which sometimes allows a

prisoner to sue government officials for damages or injunctive relief. 42 U.S.C. §1983. Congress also has enacted and revised from time to time a comprehensive federal habeas scheme that, so long as its requirements are

met, sometimes allows prisoners to be released from

state incarceration. See, e.g., 28 U.S.C. §2254.

In Preiser, the Court addressed how to reconcile

these statutes and concluded that federal habeas is the

only available path where a prisoner seeks earlier

release. There, certain “state prisoners” alleged they

“were deprived of good-conduct-time credits … as a

result of” allegedly unlawful proceedings and “sought

injunctive relief to compel restoration of the credits,

which in each case would result in their immediate

release from confinement in prison.” 411 U.S. at 476-77.

The Court framed the issue thusly: “The question before

us is whether state prisoners seeking such redress may

obtain equitable relief under the Civil Rights Act, even

though the federal habeas corpus statute … clearly

provides a specific federal remedy.” Id. at 477.

To answer that question, the Court reasoned that

where Congress enacts a specific scheme with distinct

requirements, it makes no sense to allow a prisoner to

avoid that scheme and those requirements by falling

back on the more general §1983. Drawing on precedent,

the Court explained that where the alleged “grievance is

that [the plaintiff] is being unlawfully subjected to

physical restraint,” “habeas corpus has been accepted as

the specific instrument to obtain release from such

confinement.” Id. at 486. The Court thus concluded that

6

the suits in Preiser “fell squarely within this traditional

scope of habeas corpus” because “[t]hey alleged that the

deprivation of their good-conduct-time credits was

causing or would cause them to be in illegal physical

confinement, i.e., that once their conditional-release date

had passed, any further detention of them in prison was

unlawful,” and “restoration of those good-time credits …

meant their immediate release from physical custody.”

Id. at 487.

Because the plaintiffs in Preiser sought relief within

the “traditional scope of habeas,” the Court held that the

more general §1983 cause of action was not available.

After all, §1983 “is a general [statute], and, despite the

literal applicability of its terms,” it cannot nullify “the

specific federal habeas corpus statute, explicitly and

historically designed to provide the means for a state

prisoner to attack the validity of his confinement.” Id. at

489. “It would wholly frustrate explicit congressional

intent to hold that the respondents in the present case

could evade [the habeas scheme’s exhaustion]

requirement by the simple expedient of putting a

different label on their pleadings.” Id. at 489-90. Instead,

“Congress has determined that habeas corpus is the

appropriate remedy for state prisoners attacking the

validity of the fact or length of their confinement, and

that specific determination must override the general

terms of § 1983.” Id. at 490.

If there were any doubt, moreover, the Court

explained that principles of federalism support applying

the more specific habeas scheme. The Court observed

that “[i]t is difficult to imagine an activity in which a

State has a stronger interest, or one that is more

intricately bound up with state laws, regulations, and

procedures, than the administration of its prisons.” Id. at

7

491-92. Thus, combining the familiar principle that the

specific governs the general with the rule that Congress

does not lightly intrude on state prison administration—

a principle protected by the federal habeas scheme’s

exhaustion requirements—the Court held that the “sole

federal remedy” for the prisoners in Preiser was a “writ

of habeas corpus.” Id. at 500; see also id. at 492 n.10

(“Congress has made the specific determination in

§ 2254(b) that requiring the exhaustion of adequate state

remedies in such cases will best serve the policies of

federalism.”).

Following Preiser’s reconciliation of the more

general §1983 with the more specific habeas scheme, the

Court has repeatedly held that challenges to the duration

of a plaintiff’s incarceration can only be pursued in

habeas. In Wolff v. McDonnell, 418 U.S. 539 (1974), for

example, the Court again confronted whether prisoners

can challenge the revocation of good-time credits under

§1983. The Court held that they cannot because suits

challenging “the fact or length of custody” cannot be

brought under §1983. Id. at 554. But, applying Preiser’s

logic, the Court also reasoned that a claim seeking

damages for invalid disciplinary procedures could be

brought under §1983. Such suits attack a State’s

procedures, not criminal judgments, and “victory for the

prisoners” does not necessarily mean “immediate

release or a shorter period of incarceration.” Wilkinson,

544 U.S. at 80 (discussing Wolff, 418 U.S. at 554).

The Court explained these points again in Wilkinson,

where state prisoners sued under §1983 for injunctive

and declaratory relief regarding parole procedures. See

id. at 76. The Court explained that Preiser holds that

because “the language of the habeas statute is more

specific” than §1983, and because “habeas corpus actions

8

require a petitioner fully to exhaust state remedies,

which § 1983 does not,” there is “an implicit exception

from § 1983’s otherwise broad scope for actions that lie

‘within the core of habeas corpus.’” Id. at 79 (quoting

Preiser, 411 U.S. at 487).

The Court further explained that §1983 can be used

to challenge parole procedures because “habeas

remedies do not displace § 1983 actions where success in

the civil rights suit would not necessarily vitiate the

legality of (not previously invalidated) state

confinement.” Id. at 82; see also id. (“Neither respondent

seeks an injunction ordering his immediate or speedier

release into the community.”). Although Justice

Kennedy disagreed that a challenge to parole procedures

is not an attack on confinement, he fully agreed with the

Court that while “[t]he language of § 1983 … is capacious

enough to include a challenge to the fact or duration of

confinement,” “Preiser, nonetheless, established that

because habeas is the most specific applicable remedy it

should be the exclusive means for raising the challenge.”

Id. at 90 (Kennedy, J., dissenting).

2. The Heck line of cases.

Heck’s favorable-termination requirement, by

contrast, is not the product of a reconciliation between

§1983 and federal habeas. Instead, Heck is a product of

this Court’s interpretation of §1983 alone.

In Heck, a prisoner brought a damages action under

§1983 that sought to “challenge the constitutionality of

his conviction” rather than immediate release. Heck, 512

U.S. at 478. The Court did not allow that suit, but not

because of overlap between the more general §1983 and

more specific federal habeas scheme.

Instead, the Court explained in Heck that §1983 must

be read against the common-law backdrop of its

9

enactment, which requires identifying the correct

common-law analog of the claim being pursued. See id.

at 484. The Court reasoned that in determining whether

a case is cognizable under §1983, courts focus on “the

common law of torts.” Id. at 483 (quoting Carey v.

Piphus, 435 U.S. 247, 257-58 (1978)); see also Manuel v.

City of Joliet, 580 U.S. 357, 370 (2017) (“In defining the

contours and prerequisites of a § 1983 claim, including its

rule of accrual, courts are to look first to the common law

of torts. Sometimes, that review of common law will lead

a court to adopt wholesale the rules that would apply in

a suit involving the most analogous tort.”) (citing, inter

alia, Heck, 512 U.S. at 483-87).

Focusing on the common law of torts demonstrated

that for centuries, malicious prosecution has stood alone

in allowing damages from a defective criminal process.

See Heck, 512 U.S. at 484. 1 Yet “[o]ne element that must

be alleged and proved in a malicious prosecution action

is termination of the prior criminal proceeding in favor

of the accused.” Id. (citations omitted).

Thus, a suit under §1983 that would necessarily

challenge the validity of a criminal judgment must fail

not because federal habeas exists, but because a §1983

cause of action does not exist until the favorabletermination rule is satisfied. Id. at 486-87, 489. As the

Court explained, “the hoary principle that civil tort

actions are not appropriate vehicles for challenging the

validity of outstanding criminal judgments applies to

§ 1983 damages actions that necessarily require the

plaintiff to prove the unlawfulness of his conviction or

1

This fact explains why the Court consistently invokes

malicious prosecution not as an analog, but rather the analog, in

§1983 cases that would impugn prior criminal proceedings. See, e.g.,

McDonough, 588 U.S. at 116; Heck, 512 U.S. at 484.

10

confinement, just as it has always applied to actions for

malicious prosecution.” Id. at 486.

Because Heck’s rule is not a product of reconciliation

between §1983 and federal habeas, the Court further

held that the favorable-termination requirement applies

even when habeas is not available. “We think the

principle barring collateral attacks—a longstanding and

deeply rooted feature of both the common law and our

own jurisprudence—is not rendered inapplicable by the

fortuity that a convicted criminal is no longer

incarcerated.” Id. at 490 n.10; see also Savory v. Cannon,

947 F.3d 409, 421-22 (7th Cir. 2020) (en banc) (explaining

why footnote 10 is not dicta but rather illustrates the

scope of the Court’s reasoning).

Furthermore, Heck goes out of its way to emphasize

that its analysis is about how to understand §1983—not

the interaction between §1983 and federal habeas. Heck

thus states that the plaintiff claimed damages that “could

not ‘have [been] sought … through federal habeas corpus

proceedings.’” 512 U.S. at 481 (citation omitted). That

reality “clearly” distinguished cases like Preiser, in

which §1983 and habeas facially provided overlapping

relief. 411 U.S. at 500. And Heck’s concurring Justices

disagreed with the Court’s “position that the statutes”—

i.e., federal habeas and §1983—“were never on a collision

course in the first place” with respect to the favorabletermination requirement. 512 U.S. at 492 (Souter, J.,

concurring).

The rule from Heck is thus clear. Under Heck’s

interpretation of §1983, courts do not reconcile §1983

with federal habeas in order to recognize a favorabletermination requirement because §1983 would not allow

such a suit even if federal habeas didn’t exist. The

11

favorable-termination requirement thus “is clearly not

covered by the holding of Preiser.” Id. at 481.

The Court’s cases reconfirm this understanding of

Heck. In Edwards v. Balisok, 520 U.S. 641 (1997), for

example, the Court held that a state prisoner’s claim for

damages with respect to the validity of procedures used

to deprive him of good-time credits was not cognizable

under §1983. While the plaintiff challenged only the

procedure (not the outcome of the procedure), “[t]he

principal procedural defect complained of by respondent

would, if established, necessarily imply the invalidity of

the deprivation of his good-time credits.” Id. at 646.

Furthermore, in McDonough, the Court applied Heck to

ascertain when a claim about criminal proceedings

accrues, even though the §1983 plaintiff was not

convicted at all—and so never had access to habeas. 588

U.S. at 117 & n.4. That holding makes perfect sense

because,

again,

Heck’s

favorable-termination

requirement is not a product of reconciliation.

3. Permissible §1983 claims.

Finally, precedent also recognizes that some cases

properly fall within the scope of §1983. These are cases

that satisfy all the ordinary requirements of §1983, and

both seek relief outside the scope of the federal habeas

scheme (and thus are not barred by Preiser) and do not

challenge the legal process culminating in the conviction

until the plaintiff has first obtained favorable

termination (and thus are not barred by Heck).

The most obvious examples from this line of cases are

those addressing prison conditions. In such cases, the

plaintiff does not claim he should be released or claim

that he was wrongly convicted; the plaintiff instead

claims the conditions of confinement are constitutionally

deficient and should be improved.

12

In McCarthy v. Bronson, 500 U.S. 136 (1991), the

Court—drawing from Preiser—collected cases in which

prisoners challenged the conditions of confinement but

not the validity of their sentences. See id. at 141-42.

Cooper v. Pate, 378 U.S. 546 (1964) (per curiam), for

example, involved a prisoner who alleged that he was

denied certain privileges solely because of his religion.

Houghton v. Shafer, 392 U.S. 639 (1968) (per curiam),

concerned allegations that a prisoner’s legal materials

had been unconstitutionally confiscated. And Haines v.

Kerner, 404 U.S. 519 (1972) (per curiam), addressed a

prisoner’s challenge to solitary confinement. McCarthy

describes these suits as “challenges to specific instances

of unconstitutional conduct” or “challenges to ‘conditions

of confinement’” that are cognizable under §1983

because they do not involve a plaintiff “seeking

immediate release or a speedier release from that

confinement,” which is “the heart of habeas corpus.” 500

U.S. at 141-42 (quoting Preiser, 411 U.S. at 498).

Wilkinson also holds that “Section 1983 remains

available for procedural challenges where success would

not necessarily spell immediate or speedier release for

the prisoner.” 544 U.S. at 74. The plaintiffs there

challenged not the duration of their confinement but

rather sought relief that would “render invalid the state

procedures used to deny parole eligibility.” Id. at 75. The

Court explained that if the plaintiffs succeeded on their

claims, they would not automatically be entitled to

earlier release or parole; rather, they would receive new

hearings or reviews of their release or parole. Id. Over

Justice Kennedy’s dissent, the Court thus concluded that

§1983 was available for them as well. Relevant here, no

one disagreed about the correct framework itself.

13

More recently, the Court in Nance differentiated

between a challenge to an execution itself, which would

be a habeas claim, and a challenge to the method of

execution. There, the Court concluded that the plaintiff’s

challenge did not implicate habeas because he accepted

the validity of his sentence. 597 U.S. at 169. In other

words, he agreed that “the State really [could] put him

to death, though in a different way than it plan[ned].” Id.

He also did not contest the validity of his conviction. Id.

The Court thus concluded he could bring a §1983 claim.

Although that conclusion is also debatable, no one

disputed the key point for purposes here: “An inmate

must bring a method-of-execution challenge in a federal

habeas application, rather than under 42 U.S.C. § 1983,

if ‘a grant of relief to the inmate would necessarily bar

the execution.’” Id. at 175 (Barrett, J., dissenting)

(quoting Hill v. McDonough, 547 U.S. 573, 583 (2006)).

B. The Preiser line of cases controls here.

As the Court’s cases illustrate, prisoners often prefer

to bring suit under §1983 rather than seeking relief

under federal habeas or satisfying Heck’s favorabletermination requirement. This is because §1983—which

is a broad provision not specifically targeted at prisons—

carries with it special benefits, including potential

punitive damages and attorneys’ fees. Furthermore,

Congress has placed specific restrictions and limitations

on the federal habeas scheme that can be challenging for

prisoners to satisfy. Yet to give effect to Congress’s

creation of federal habeas, the Court must be vigilant to

ensure that §1983 stays within its proper scope.

Here, the petition raises a scenario this Court has not

yet addressed—allegations that a State has detained

someone beyond the terms of the person’s sentence. Although the Court has not addressed this precise scenario,

14

it has indicated how courts should approach the question.

Logically, the correct line of cases is Preiser.

Congress has created a specific scheme for those who

allege they should not be in prison: Habeas. It would nullify Congress’s choice to allow a plaintiff to evade that

scheme simply by waiting until incarceration ends and

then suing for damages under §1983. This is so because

“if a prisoner could simply choose which statute to use

for his constitutional claims, every prisoner in his right

mind would choose § 1983; he could use it to get out of

jail, get money damages, and get attorney’s fees—all

without having to confront … the numerous common-law

restrictions on habeas.” Crittindon v. LeBlanc, 37 F.4th

177, 193 (5th Cir. 2022) (Oldham, J., dissenting), cert. denied, 144 S. Ct. 90 (2023).

On one hand, §1983 is a general statute that does not

expressly address incarceration at all. On the other hand,

federal habeas is a specific scheme that is all about incarceration. Where, as here, Congress creates a specific

scheme, the plaintiff must use that scheme rather than

any general cause of action. “[I]t is a commonplace of

statutory construction that the specific governs the general. That is particularly true where … ‘Congress has enacted a comprehensive scheme and has deliberately targeted specific problems with specific solutions.’”

RadLAX Gateway Hotel, LLC v. Amalgamated Bank,

566 U.S. 639, 645 (2012). Thus, as in Preiser, where a

court must reconcile §1983 and federal habeas, the more

specific scheme controls.

Indeed, the Court has “warn[ed] against applying a

general provision when doing so would undermine limitations created by a more specific provision.” Varity

Corp. v. Howe, 516 U.S. 489, 511 (1996). Thus, “[t]he provision of an express, private means of redress in” a

15

separate statute “is ordinarily an indication that Congress did not intend to leave open a more expansive remedy under § 1983.” City of Rancho Palos Verdes v.

Abrams, 544 U.S. 113, 121 (2005). In City of Rancho Palos Verdes, the plaintiff alleged damages under both the

Telecommunications Act (TCA) and §1983. Id. at 118.

The Court reasoned that because the TCA provided “a

judicial remedy different from § 1983,” the TCA “precluded resort to § 1983.” Id. at 127. After all, the Court

reasoned, “[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Id. at 121 (quoting Alexander v. Sandoval, 532 U.S. 275, 290 (2001)). Furthermore,

in United States v. Bormes, 568 U.S. 6, 14 (2012), the

Court held that because the Fair Credit Reporting Act

created a “detailed remedial scheme,” it precluded recourse to the Little Tucker Act. Id. at 15. To allow plaintiffs to choose their own adventure would “transform”

the landscape. Id.

Given that familiar principle of statutory interpretation, Judge Jones is correct that “court[s] should not enable overdetained prisoners to neglect their obligation to

seek habeas relief and instead bypass that remedy in order to pursue Section 1983 damages by filing for the

wrong type of relief in the wrong court at the wrong

time.” App.16 (Jones, J., concurring). Congress would

not have created a detailed, specific scheme if plaintiffs

could evade its restrictions by waiting until incarceration

ends.

Furthermore, in reconciling §1983 with federal habeas, the Court in Preiser emphasized “[t]he strong considerations of comity that require giving a state court

system that has convicted a defendant the first opportunity to correct its own errors.” 411 U.S. at 492.

16

Allowing the States an opportunity to address a plaintiff’s concerns through state habeas proceedings or some

state procedure avoids “unseemliness” and “friction” between federal and state courts, O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999), and “minimizes federal interference and disruption of state judicial proceedings. Rose v.

Lundy, 455 U.S. 509, 514 (1982). Yet permitting a plaintiff to ignore federal habeas and sue in the first instance

under §1983 is the antithesis of comity.

Indeed, one of the central features of federal habeas

is that prisoners must exhaust state remedies before

turning to federal ones. See, e.g., Woodford v. Ngo, 548

U.S. 81, 92 (2006). This requirement serves important

values that benefit everyone involved in the criminal justice system—litigants and courts alike. For example,

“federal claims that have been fully exhausted in state

courts will more often be accompanied by a complete factual record to aid the federal courts in their review.”

Rose, 455 U.S. at 519. And “state appellate courts[] …

can [d]evelop and correct errors of state and federal law

and most effectively supervise and impose uniformity on

trial courts.” Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S.

484, 490-91 (1973). Accordingly, to prevent a prisoner

from “evad[ing] the exhaustion requirement” and “the

values that it serves,” a prisoner must “properly exhaust[] [his state] remedies” by “present[ing] his claims

to the state courts.” O’Sullivan, 526 U.S. at 848.

Finally, even if the federal habeas scheme does not

displace §1983 in situations like this one, the commonlaw analogizing required by Heck also cuts against the

Fifth Circuit’s decision. As Judge Jones explained, “[i]t

is well established in civil cases that litigants have a duty

to mitigate their damages after an injury occurs.” App.16

(Jones, J., concurring). This is not a new principle. See,

17

e.g., RESTATEMENT (FIRST) OF TORTS §918 (1939);

CHARLES T. MCCORMICK, LAW OF DAMAGES 127 (1935).

Congress surely did not overlook “[t]his duty, rooted in

an ancient principle of law,” Ford Motor Co. v. EEOC,

458 U.S. 219, 231 (1982), when it enacted §1983.

C. The Fifth Circuit misapplied Preiser.

Despite Preiser’s reasoning, the Fifth Circuit has

now effectively held “that the federal habeas statute and

§1983 offer prisoners like McNeal an election of remedies.” App.93 (Oldham, J., dissenting from the denial of

rehearing en banc). Yet under the comprehensive habeas

scheme enacted by Congress, a prisoner cannot “sleep on

his rights until his (ostensible) release date passes” and

then ignore “the specific habeas remedy” in favor of “the

general § 1983 remedy.” App.101 (Oldham, J., dissenting

from the denial of rehearing en banc).

The Fifth Circuit declined to apply Preiser because

“McNeal does not challenge his conviction or attendant

sentence, but rather the 41 days he was imprisoned beyond his release date.” App.7. And in Hicks v. LeBlanc,

81 F.4th 497 (5th Cir. 2023), it stated—correctly—that

this Court’s cases hold that “constitutional claims that

merely challenge the conditions of prisoner’s confinement … fall outside of that core and may be brought pursuant to § 1983 in the first instance,” id. at 509 (quotation

omitted), but then concluded—incorrectly—that overdetention claims are also beyond the “core” of habeas because they do “not implicate the fact or duration of …

confinement.” Id.

Under Preiser, however, a challenge to the “duration

of [] physical confinement … lies at ‘the core of habeas

corpus.’” Wilkinson, 544 U.S. at 79 (quoting Preiser, 411

U.S. at 487). Alleged overdetention implicates the fact of

confinement or detention. By definition, plaintiffs

18

alleging such a theory contend they are confined but

shouldn’t be, or, as here, that they were confined but

shouldn’t have been. Under Preiser, it matters that

plaintiffs who believe that their sentence of lawful detention has ended have a means to challenge that detention

through habeas proceedings. There is no reason to think

that Congress intended to allow plaintiffs to forgo habeas—which is specifically designed to provide relief to

those who are wrongfully detained—but then sue later

under the general auspices of §1983.

At the same time, the Fifth Circuit’s rule also contravenes Preiser’s federalism concerns. Allowing plaintiffs

to sleep on their rights undermines a State’s interests in

“timely notice of alleged misconduct,” Wallace v. Kato,

549 U.S. 384, 396-97 (2007), and nullifies rules that advance “uniformity, certainty, and the minimization of unnecessary litigation,” Owens v. Okure, 488 U.S. 235, 23940 (1989). None of this is consistent with Preiser, especially because enforcing federal habeas’s exhaustion requirement in this context would allow state courts that

are more familiar with how to calculate sentence length

under state law to more quickly remedy errors.

II. The Fifth Circuit’s Rule Invites Gamesmanship.

Not only does the Fifth Circuit’s rule misunderstand

precedent, but it also invites gamesmanship.

The Court has warned against allowing §1983

plaintiffs to evade habeas by artful pleading. As Preiser

explains, for example, “[i]t would wholly frustrate

explicit congressional intent to hold that the respondents

… could evade [federal habeas’s exhaustion]

requirement by the simple expedient of putting a

different label on their pleadings.” Preiser, 411 U.S. at

489-90. Or as Justice Alito has explained, “[t]he rules set

forth in [the Court’s] cases … would mean very little if

19

state prisoners could simply evade them through artful

pleading.” Dist. Att’y’s Off. for Third Jud. Dist. v.

Osborne, 557 U.S. 52, 77 (2009) (Alito, J., concurring). In

short, “[c]ourts should police carefully against” abuses of

§1983. Bucklew v. Precythe, 587 U.S. 119, 150 (2019).

Nothing suggests that Congress intended to enable

gamesmanship. Rather, Congress has gone out of its way

to prevent it. For example, Congress enacted the Prison

Litigation Reform Act (PLRA), which imposes an

exhaustion requirement on prisoners attempting to use

§1983 to sue for damages. See 42 U.S.C. §1997e(a).

Reviewing that requirement, the Court has concluded

that “Congress’s imposition of an obviously broader

exhaustion requirement makes it highly implausible that

it meant to give prisoners a strong inducement to skip

the administrative process simply by limiting prayers for

relief to money damages not offered through

administrative grievance mechanisms.” Booth v.

Churner, 532 U.S. 731, 740-41 (2001).

The Court has also explained that “if state-court

remedies are no longer available because [a] prisoner

failed to comply with the deadline for seeking state-court

review or for taking an appeal, those remedies are

technically exhausted … but exhaustion in this sense

does not automatically entitle the habeas petitioner to

litigate his or her claims in federal court.” Woodford, 548

U.S. at 93. Rather, “if [a] petitioner procedurally

defaulted those claims, the prisoner generally is barred

from asserting those claims in a federal habeas

proceeding.” Id. Prisoners therefore cannot refrain from

filing grievances. See id. at 95.

Here, the Court faces a similar question: Can

Respondent refrain from filing for habeas relief and

instead seek damages under the more general §1983? As

20

the Court’s PLRA precedent confirms, the answer is no.

Preiser does not apply to him, he claims, because he is

not seeking release, and Heck does not apply to him

because damages would not necessarily impugn the

validity of his conviction. Yet Congress’s enactment of a

specific habeas scheme “makes it highly implausible that

it meant to give prisoners a strong inducement,” Booth,

532 U.S. at 741, to bypass that scheme.

III. The Question is Important and Recurring.

Finally, Amici agree with Louisiana that the question

presented here is important and recurring. As Judge

Duncan observed below, the Fifth Circuit is deluged by

a “rising tide of suits by overdetained prisoners against

Louisiana officials.” App.92 (Duncan, J., dissenting from

denial of rehearing en banc). In fact, Louisiana is subject

to two separate class actions. Yet the Fifth Circuit is divided and lacks a clear path forward.

Nor is the issue limited to the Fifth Circuit. As the

petition explains (at 16-25), courts are divided. This confusion persists because not all courts understand the distinct reasoning of each line of the Court’s cases. The

Fifth Circuit in Hicks, for example, recognized that

Preiser does not bar all prison-related litigation but then

misidentified which types of claims are permitted under

§1983. See supra pp. 17-18. Certiorari is warranted so

the Court can reiterate the correct framework.

This Court’s review is particularly important, moreover, because of federalism. As Preiser explains, “[i]t is

difficult to imagine an activity in which a State has a

stronger interest, or one that is more intricately bound

up with state laws, regulations, and procedures, than the

administration of its prisons.” 411 U.S. at 491-92. Indeed,

“[t]he relationship of state prisoners and the state officers who supervise their confinement is far more intimate

21

than that of a State and a private citizen,” and “[w]hat

for a private citizen would be a dispute with his landlord,

with his employer, with his tailor, with his neighbor, or

with his banker becomes, for the prisoner, a dispute with

the State.” Id. at 492. Given that “the possibilities for litigation under the Fourteenth Amendment are boundless,” the States “have an important interest in not being

bypassed in the correction of those problems.” Id. at 492.

Amici do not condone overdetention. States should

promptly release prisoners, and when they do not, courts

should promptly order their release. States have “a coordinate responsibility to enforce the Constitution” and

federal courts “should not assume the States will refuse

to honor the Constitution.” DeVillier v. Texas, 601 U.S.

285, 292-93 (2024) (cleaned up). Yet how to calculate the

correct detention period and ensure timely release are

important questions of prison administration. As Preiser

explains, the States have a strong interest in ensuring

that federal courts properly apply federal statutes touching on these issues. Here, the confusion in the lower

courts is not one of State law. Both the federal habeas

scheme and §1983 are federal statutes, and it is federal

courts that disagree about how and when to apply them.

This Court’s review is particularly warranted where the

States bear the burden of such federal confusion.

22

C O NCL USI O N

The Court should grant the petition.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Aaron.Nielson@oag.texas.gov

(512) 936-1700

AUGUST 2024

AARON L. NIELSON

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

JOSHUA C. FIVESON

Assistant Solicitor General

23

Counsel for Additional Amici:

STEVE MARSHALL

Alabama Attorney General

TREG TAYLOR

Alaska Attorney General

CHRIS CARR

Georgia Attorney General

THEODORE E. ROKITA

Indiana Attorney General

BRENNA BIRD

Iowa Attorney General

KRIS KOBACH

Kansas Attorney General

LYNN FITCH

Mississippi Attorney General

ANDREW BAILEY

Missouri Attorney General

AUSTIN KNUDSEN

Montana Attorney General

DREW WRIGLEY

North Dakota Attorney General

DAVE YOST

Ohio Attorney General

ALAN WILSON

South Carolina Attorney General

24

MARTY JACKLEY

South Dakota Attorney General

JONATHAN SKRMETTI

Tennessee Attorney General

JASON MIYARES

Virginia Attorney General