Reply Brief — Edwards v. Balisok

(< Supreme Court, U.S.

b

FILED

NO. 95-1352 SEP 8 1996

IN THE SUPREME COURT OF =

OCTOBER TERM, 1995

GARY EDWARDS and TANA WOOD,

Petitioners,

vS.

JERRY B. BALISOK,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NiNTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

KATHLEEN D. MIX*

TALIS MERLE ABOLINS

WILLIAM BERGGREN COLLINS

MARY E. FAIRHURST

DANIEL J. JUDGE

Assistant Attorneys General

PO Box 40116

Olympia, WA 98504-0116

(360) 586-1445

*Counsel of Record

Counsel for Petitioner

PETITION FOR CERTIORARI FILED FEB. 20, 1996

CERTIORARI GRANTED APRIL 29, 1996

TABLE OF CONTENTS

BALISOK’S § 1983 CLAIM SHOULD BE

DE 6656-060 bee Ob OHS Rede Oe

B. The Interrelationship Between Habeas

Corpus and § 1983 Should Be Resolved

Through the Application of the Bright-Line

a ee, 7 eee eee eee

1. Comity Dictates That State Courts Have

the First Opportunity to Review Claims

Involving Unlawful Confinement.

2. The Only Reason Prisoners Have Due

Process Rights in a Disciplinary Hearing

is to Prevent an Arbitrary Loss of

ETS 66. bk dio BAMA Dd o0.0.0 0

3. The Relief Section of a Prisoner’s

Complaint is an Unreliable Guide For

Assessing the Nature of the Prisoner’s

Ditrrehestetddkac*ataes

4. The Bright-Line Rule Is Based on Fed.

R. Civ. P. 12(6)(6) and Easily Identifies

the Nature of the Prisoner’s Claim. . .

5. The Bright-Line Rule Does Not Impede

Federal Review of Constitutional

Violations Under § 1983. ........

5

6. The Bright-line Rule is Consistent With

Heck Because it Addresses a Question TABLE OF AUTHORITIES

Not Resolved by Heck’s Tort Analysis. 11

C. Heck Bars Balisok’s § 1983 Claim. ..... 13 Cases Page

D. Dismissal of Balisok’s § 1983 Claim is Allen v. McCurry,

Consistent With Wolf. ............ 15 DE Suc bcescceccceccccceces 10

B. CONCERGIIM. . 600 e594. ee eee 17 | Conley v. Gibson,

| hee ee ecces cee ece cc 8

Dog Essence Saladin Amin v. Pruett,

___ F. Supp. ___, 1996 WL 341522

| i a) ee 5, 15

|

| Ex Parte Royall,

| Ee ee 4

Fair Assessment in Real Estate

Ass'n v. McNary,

SE eee 2

| H.J. Inc. v. Northwestern Bell Tel. Co..,

rE hc oc odie Hes ber nese. 8

Heck v. Humphrey,

512 U.S. __, 114. S. Ct. 2364 (1994) . . 1, 3, passim

In re Burton,

80 Wn. App. 573,910 P.2d _,

review denied, __ Wn.2d_ (1996)... ...... 14

In re Johnston,

109 Wn.2d 493, 745 P.2d 864 (1987) ......... 14

iv

Leonard v. Mississippi State

Probation & Parole Bd.,

509 F.2d 820 (Sth Cir.),

cert. denied, 423 U.S. 998 (1975) ......-++++: 16

Preiser v. Rodriguez,

411 U.S. 475 (1973)... 22 eee eee eens 2-6, 12

Project Release v. Prevost,

463 F. Supp. 1033 (E.D.N.Y. 1978) .......-. 16

Rose v. Lundy,

455 U.S. 509 (1982) ..... 2. ee eee eee ees 2-4

Sandin v. Conner,

___ U.S. __, 15 S. Ce. T3293 CIGRS) owe cee: 4

Superintendent, Mass. Corr.

Institution v. Hill,

472 U.S. 445 (1985S) 2... eee eee eee eee 14

Tucker v. Montgomery Bd. of Comm'rs,

410 F. Supp. 494 (M.D. Ala. 1976)....-...--- 17

Wolff v. McDonnell,

418 U.S. 539 (1974) .... 2-2 ee ee eee 1, 13-16

Wood v. Gotcher,

Supreme Court No. 95-1385 ....------++5+> 5

<

Statutes & Regulations

errr 1-3, 5, 6, 11, 12

NN ce es 10

is cieeiiue éu'sied 1-4, 6, 7, 9-17

Prison Litigation Reform Act of 1995,

Pub. L. No. 104-134, § 805(a) (1996 .......... 8

oo

ee ee 7-9

Re BR 5 vcniéw'e of oe ee bows 16

ee 9

2 gage

it

i

|i

i iil

| Tate Latin

| PH Bath

2

B. The Interrelationship Between Habeas Corpus

and § 1983 Should Be Resolved Through the

Application of the Bright-Line Rule.

The interrelationship of § 2254 and § 1983 has been

a continuing source of conflict and confusion for the

federal courts. Pet. 13-21; Pet. Reply 1-6. We propose a

briight-lime rule which clarifies the application of these two

statutes when they overlap. Pet. Br. 12-26. In their

responses, Balisok and the American Civil Liberties Union

and other amici (ACLU) argue that adoption of the bright-

line rule would constitute judicial rule making, and that this

question should be left to Congress. Res. Br. 41-44;

ACLU Br. 14-16.

Application of the bright-line rule is not improper

judicial rule making. It is the proper role of this Court to

construe the operation of two overlapping statutes. Preiser

v. Rodriguez, 411 U.S. 475, 482-83, 489 (1973). Rather

than engraft an exhaustion requirement onto § 1983, the

bright-line rule merely defines the appropriate scope and

application of an exhaustion requirement that has already

been legislatively expressed in § 2254(b).'

Under § 2254(b), a prisoner is required to exhaust

state habeas corpus remedies before pursuing a “writ of

habeas corpus”. Congress did not define “writ of habeas

corpus”. As a result, this Court requires exhaustion of any

'This Court also looks to the policies of comity in order to define

the scope of the exhaustion requirement of § 2254(b). Preiser v.

Rodriguez, 411 U.S. 475, 490-92 (1973); Rose v. Lundy, 455 U.S.

509, 516-18 (1982). The fundamental importance of comity was

illustrated in Fair Assessment in Real Estate Ass'n v. McNary, 454

U.S. 100, 111-116 (1981), where this Court did judicially create a new

rule of exhaustion based upon comity principles without any direct

statutory basis. Although prison officials do not directly rely on Fair

Assessment, its analysis illustrates that even without the statutory basis

of § 2254(b), comity alone may require the same result.

3

claim which is properly categorized as an attack on the fact

or duration of confinement. Preiser, 411 U.S. at 490, 500.

Pet. Br. 13-14, 17-19. The bright-line rule properly

identifies claims which attack the fact or duration of a

prisoner’s confinement by focusing on the nature of the

Claiee tenet, ‘sather Gian the relist sought inthe prisoner's

In our opening brief we set out four reasons why

this Court should adopt the bright-line rule to reconcile §

2254 and § 1983. Balisok has little response to some of

~ ehoyg. ater ueon geomet eeteammrnetgnlaams

1. Comity Dictates That State Courts Have

the First Opportunity to Review Claims

Involving Unlawful Confinement.

In our brief we explained why the bright-line rule

was necessary to preserve the fundamental principles of

federal-state comity which underlie exhaustion. Pet. Br.

13-17. Balisok does not disagree that comity is a

fundamental principle of federal-state relations. Instead,

Balisok attempts to minimize the role of comity in this case

by arguing that a favorable ruling under § 1983 will not

have a res judicata effect in a subsequent state habeas

corpus action. Res. Br. 26-27. This argument misses the

point.

The need to judicially harmonize the mespeatiwe scope of § 2254

and § 1983 is also made necessary by theme thar applicatuon of both

statutes has been expanded beyond the marm=» scopesomginally intended

by the drafters. See Heck, 114 S$. Ci. 2374-75. (Thomas, |.,

concurring); Rose, 455 U.S. at 548 m. 18\(Gtevens, ).. dissenting). To

relies on a principled analysis of ‘the gemerv! polices that underlie the

statutes in order to resolve conflicts.

4

The fact that a state court may not be bound by a

prior federal court ruling under § 1983 does not address the

principles of comity that exhaustion is designed to protect.

For over a century, this Court has recognized that federal

courts should not consider a habeas claim “until after the

state courts have had an opportunity to act". Rose v.

Lundy, 455 U.S. 509, 515, (1982), citing Ex Parte Royall,

117 U.S. 241, 251 (1886). Contrary to Balisok’s

suggestion, comity is not satisfied by giving state courts a

second, independent opportunity to address claims. The

purposes of exhaustion and federal-state comity are only

satisfied by giving state courts “the first opportunity to

correct the errors made in the internal administration of

their prisons." Preiser, 411 U.S. at 492.

Comity and the public good require that federal-

state relations “be not disturbed by unnecessary conflict

between courts equally bound to guard and protect rights

secured by the Constitution." Rose, 455 U.S. at 515,

quoting Royall, 117 U.S. at 251. With or without res

judicata, the principle of comity is frustrated if a state

court is confronted with a federal court judgment thai has

already resolved the same issues against the same state

officials. Where, as here, the prisoner’s claim is by its

very nature an attack on loss of liberty, Congress intended

that state courts be given the first opportunity to consider

the claim.’

*Balisok also argues that allowing his claims to proceed without

exhaustion will not interfere with prison administration because a

federal ruling on prison disciplinary procedures will not prevent prison

officials from holding hearings and imposing appropriate sanctions.

Res. Br. at 40. This also misses the point. Allowing Balisok to

proceed without exhaustion will lead to greater federal intrusion in the

area of state prison administration and deprive state courts of the first

opportunity to correct any errors in the internal administration of a state

prison disciplinary system. Preiser, 411 U.S. at 492; Sandin v.

Conner, _ U.S. ___, 115 S. Ct. 2293, 2299-2300 (1995).

5

2. The € y Reason Prisoners Have Due

Process Rights in a Disciplinary Hearing

is to Prevent an Arbitrary Loss of

Liberty.

The bright-line rule recognizes the primacy of the

liberty interest which lies at the heart of a due process

claim. Pet. Br. 17-19. The very purpose of due process

at a disciplinary hearing is to prevent an arbitrary loss of

good-time credits. Balisok agrees with this point and the

ACLU does not debate it. Res. Br. 12-13 and n.9.

Without a deprivation of the good-time credits, Balisok

would have no procedural rights at all.‘ Pet. Br. 17-19.

By its very nature, Balisok’s procedural due process claim

is an attack on the deprivation of liberty itself. As such it

must first be addressed in a habeas corpus action.

3. The Relief Section of a Prisoner’s

Complaint is an Unreliable Guide For

Assessing the Nature oi the Prisoner’s

Claim.

Our brief also explained why application of §

2254(b) should not depend on the relief section of a

prisoner’s complaint.’ Pet. Br. 19-23. As examples, we

“Balisok also contends that we have conceded the existence of a

state created liberty interest in early release based on good-time credits.

Res. Br. 1, n.1, 12, n.8. Balisok is incorrect. For purposes of our

motion to dismiss, we assumed Balisok had a liberty interest in good-

time credits. However, we do not concede this point. That question

is disputed in Wood v. Gotcher, Supreme Court No. 95-1385, pending

before this Court. Pet. Br. 5, n.2.

‘Under Preiser and Heck, a prisoner would never be able to

request good-time credits in the relief section of his civil rights

complaint. Heck, 114 S. Ct. at 2369, citing Preiser, 411 U.S. at 488-

6

noted that Balisok temporarily dropped his request for

good-time credits in order to avoid exhaustion, and that

Gotcher unintentionally failed to request his good-time

credits, thereby frustrating his ability to seek habeas relief.

Id. \

Rather than explain his strategic amendment or

address the problems of a relief-based approach, Balisok

argues that his original request for good-time credits

"cannot be considered by the Court.” Res. Br. 31.

Although Balisok’s original complaint has been superseded,

it remains a relevant part of the course of these

proceedings. In another part of his brief, Balisok expresses

concern that exhaustion may preclude a federal court from

reviewing a subsequent § 1983 claim. Res. Br. 26-27.°

attempt to circumvent exhaustion. See Pet. Br. 20-21,

n.12.

The brief of the ACLU also confirms the need for

a bright-line rule when it argues that Gotcher must now be

allowed to seek damages for allegedly unlawful

confinement because, having been released from prison, he

can no longer seek habeas relief. ACLU Br. 19-23. The

ACLU’s concern with Gotcher’s predicament is best

addressed through application of the bright-line rule. The

90; see also Dog Essence Saladin Amin v. Pruett, __ F. Supp. __,

1996 WL 341522 at 3 (E.D. Va., June 12, 1996) ("even before Heck,

it was unlikely that prisoners would ordinarily seek restoration of good-

time credits in a § 1983 action, because it is clear under Preiser that

they could not. ”). The bright-line rule recognizes that if a prisoner has

affirmatively alleged all elements necessary to legally support a claim

for a shorter duration of confinement, the claim is in “essence” an

attack on the duration of confinement. There is no need to look to the

subjective motivations of the inmate or to explore the theoretical

question of whether success on the claim might not lead to a restoration

of the lost good-time credits.

“This issue is addressed more fully infra, p.10 below.

7

bright-line rule would have prevented this strategic blunder

and given Gotcher an opportunity to seek good-time credits

before it was too late to do so. See Pet. Br. 22-23, n.14.

Under the bright-line rule, a district court would have

directed Gotcher to pursue habeas relief because his due

process allegations stated a claim for restoration of good-

time credits. Under the expedited procedures for habeas

review, Gotcher had an opportunity to achieve release from

the allegedly unlawful confinement.’ The bright-line rule

will ensure that prisoners like Gotcher will receive a

federal forum and remedy before it is too late for the

inmate, or the State, to correct the asserted error.

4. The Bright-Line Rule Is Based on Fed. R.

Civ. P. 12(b)(6) and Easily Identifies the

Nature of the Prisoner’s Claim.

Federal Rule of Civil Procedure 12(b)(6) provides

an appropriate and easily applied standard for determining

whether a prisoner’s claim should be categorized as an

attack on his or her duration of confinement. Pet. Br. 24-

26. Under the bright-line rule, a prisoner should be

required to exhaust habeas corpus remedies if the

allegations in the § 1983 complaint could support a claim

for good-time credits under Fed. R. Civ. P. 12(b)(6),

regardless of the relief requested. The standard is

appropriate because it focuses on the nature of the claim

itself, rather than on the relief specified in a prisoner’s

pleading. Pet. Br. 17-23.

Balisok and the ACLU argue that the bright-line

’Gotcher's cause of action appears to be barred under Heck.

because he seeks damages for allegedly unconstitutional imprisonment.

Heck, 114 S. Ct. at 2372. Heck’s bar to such an attack is not rendered

inapplicable by the fortuity that Gotcher is no longer incarcerated.

Heck, 114 S. Ct. at 2374.n.10. See also Res. Br. 28.

rule is impossible to apply because the words "could" and

“would” have slightly different definitions. See Res. Br.

35; ACLU Br. 11 n. 6.'

The standard of Fed. R. Civ. P. 12(b)(6) is clear

and has been consistently applied by district courts on a

daily basis. Under Fed. R. Civ. P. 12(0)(6), the courts

“read the facts alleged in the complaint in the light most

favorable” to the plaintiff to determine if any “relief could

be granted". H.J. Inc. v. Northwestern Bell Tel. Co., 492

U.S. 229, 249-50 (1989) (citation omitted). An action

should not be dismissed for failure to state a claim “unless

it appears beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

Because Fed. R. Civ. P. 12(b)(6) is the standard, it makes

no difference if the question is framed as whether the

complaint “would” state a claim, or “could” state a claim.

In applying this standard, federal courts have used "would"

and “could” interchangeably. Compare H.J. Inc., 492

U.S. at 249 (whether no relief “could” be granted) with

Haines v. Kerner, 404 U.S. 519, 521 (1972); Conley, 355

U.S. at 45-46 (whether the plaintiff “would” be entitled to

relief). The complaint will always state a claim whenever

a plaintiff alleges the elements necessary to support a

request for restoration of good-time credits.

Because the bright-line rule is premised on the well-

defined standard of Fed. R. Civ. P. 12(b)(6), courts will

have no difficulty determining whether the plaintiff's

allegations, if successfully proven, support a claim for

‘In making this semantic challenge to the bright-line rule, Balisok

and the ACLU do not cite to Fed. R. Civ. P. 12(b)(6) or address its

appropriateness for evaluating the nature of a prisoner's claim.

*The Prison Litigation Reform Act now requires district courts to

apply this standard before the complaint is even served. Prison

Litigation Reform Act of 1995, Pub. L. No. 104-134, § 805(a) (1996).

9

restoration of lost good-time credits. When restoration of

good-time credits is a recognized remedy for the alleged

violations, then the nature of the claim is in essence an

attack on the plaintiff's duration of confinement. Such a

claim should not be allowed to proceed under § 1983

merely because the plaintiff has momentarily omitted the

request for relief from unlawful confinement that his own

allegations support.'°

The ACLU argues that the bright-line rule would

require district courts to embark on a “speculative voyage”

to determine whether a prisoner's allegations could support

a claim for restoration of good-time credits "in some future

state proceeding". ACLU Br. 11-12. The bright-line rule

is based on the easily applied standard of Fed. R. Civ. P.

12(b)(6), which focuses on the allegations set forth in the

present complaint, not in some future proceeding. A

district court is not required to speculate about the outcome

of future proceedings, or the application of state law, res

judicata, or defenses like harmless error. The bright-line

rule is easily applied to any prisoner complaint and asks

whether the prisoner’s allegations state a claim for relief

from unlawful confinement.

In addition to its ease of application, the bright-line

rule may also further judicial economy. By refusing to

allow prisoners to split a § 1983 claim into two, the bright-

line rule eliminates the need to convene two separate juries

to address the related claims of damages resulting from the

disciplinary procedures, and damages resulting from the

disciplinary sanction. The district court will be able to

review all of the prisoner’s claims in a single proceeding,

thus providing for a more focused and thorough review.

1 ,

"The federal courts are already required to look beyond the relief

set forth in the complaint. Pet. Br. 24, citing Fed. R. Civ. P. 54(d);

Conley, 355 U.S. at 45-46. (the question is whether the plaintiff is

entitled to any relief under the allegations).

10

5. The Bright-Line Rule Does Not Impede

Federal Review of Constitutional

Violations Under § 1983.

Balisok and the ACLU argue that the bright-line

rule should be rejected because it may impede federal

review of constitutional violations under § 1983. Res. Br.

36-40, 46-48. Balisok suggests that the rule will bar relief

for prisoners who run “the risk of being brutally beaten",

and who are subject to “dehumanizing treatment",

“senseless suffering", oi “wretched misery". Res. Br. 46-

47 (citations omitted). ACLU Br. 1’-18. This argument

misconstrues the bright-line rule. The bright-line rule

requires prisoners to exhaust habeas corpus remedies if

their allegations state a claim for relief from unlawful

confinement. By its terms, the bright-line rule does not

apply to allegations of prison brutality or inhumane

conditions, which do not implicate the fact or duration of

confinement.

Balisok also argues that exhaustion will bar federal

review of his procedural due process claim because a

federal court must accord preclusive effect to issues

decided by the state courts during his exhaustion of state

habeas remedies. Res. Br. 36-38. Preclusion of a § 1983

claim does not result from exhaustion, but from Congress’

enactment of 28 U.S.C. § 1738, which requires the federal

courts to give the same full faith and credit to state court

judgments as is afforded within the state itself. Allen v.

McCurry, 449 U.S. 90, 96 (1980).

The possibility that federal review under § 1983

may be limited does not justify any exception to the

Statutory requirements of state court exhaustion and full

faith and credit to state court judgments. Because Balisok’s

claim is properly classified as an attack on his loss of good-

time credits, Balisok must exhaust state remedies, subject

to the same statutory provisions as any other litigant.

1]

6. The Bright-line Rule is Consistent With

Heck Because it Addresses a Question Not

Resolved by Heck’s Tort Analysis.

Balisok and the ACLU argue that the bright-line

tule is foreclosed by Heck. Balisok reads Heck’s tort law

analysis beyond its context. Because the prisoner in Heck

sought relief premised on unlawful confinement itself, tort

law provided an obvious and easy answer -- damages

claims must not be used to challenge the validity of an

Outstanding basis for confinemeni. Heck, 114 S. Ct. at

2371-72. Balisok assumes the* under Heck, exhaustion is

not required for any claim that does not necessarily

invalidate the basis of confinement. Res. Br. 11-16;

ACLU Br. 6-12.

Balisok is wrong because Heck left open the

question of whether a prisoner may bypass exhaustion

under § 2254(b) by limiting his request for relief to

damages that are not premised on unlawful confinement.

In Heck, this Court specifically refused to address this

different question. Much like Balisok, Heck tried to argue

that the relief he sought did not include damages premised

on unlawful confinement; Heck argued that success on “his

damages claims would not invalidate his conviction."

Heck, 114 S. Ct. at 2368-69 n. 2. This Court refused to

address this argument because Heck had not raised it until

his reply brief. Jd. This Court also refused to answer a

question raised by Humphrey: whether “exhaustion of state

remedies should be required . . . whenever ‘judgment in a

§ 1983 action would resolve a necessary element to a likely

challenge to a conviction, even if the § 1983 court [need]

not determine that the conviction is invalid."" Heck, 114

S. Ct. at 2373 (citation omitted).

Thus, Heck expressly refused to decide the result

12

for claims that relate to the prisoner’s confinement, but do

not necessarily invalidate that confinement." The

question before the Court in Heck was “whether money

damages premised on an unlawful conviction could be

pursued under § 1983." Heck, 114 S. Ct. at 2368-69 n. 2.

This Court’s holding was confined to claims for “damages

for allegedly unconstitutional conviction or imprisonment,

or for other harm caused by actions whose unlawfulness

would render a conviction or sentence invalid". Heck, 114

S. Ct. at 2372. This Court did not abandon the statutory

and comity-based analysis that must be relied upon for

claims that fall within the intersection of § 2254(b) and §

1983. As discussed above, the bright-line rule provides the

appropriate way to address those claims. Supra, p. 2-10.

A prisoner who narrows his claim by only

requesting relief from procedural violations will not be

subject to the tort analysis of Heck unless his claim would

necessarily invalidate the resulting loss of good-time

credits. The bright-line rule provides an appropriate way

to assess claims that might invalidate a resulting loss of

good-time credits. The bright-line rule is consistent with

Preiser and Heck, and properly focuses on the nature of the

plaintiff's claim itself. Regardless of the relief actually

sought by a prisoner, the underlying claim is the proper

focal point for evaluating the implication of a lawsuit to the

prisoner’s duration of confinement.

'lThat issue is presented in this case. Balisok argues that his due

process claim will not necessarily invalidate his loss of good-time

credits. Res. Br. 11-16. If Balisok is correct, and we contend he is

not (see infra, p. 13-14), his § 1983 claim should be dismissed under

the bright-line rule and Balisok should be directed to pursue his habeas

corpus remedy.

13

C. Heck Bars Balisok’s § 1983 Claim.

Heck provides a second and independent reason why

Balisok cannot proceed with his § 1983 action. In Heck

this Court applied principles of tort law to bar a prisoner's

§ 1983 action for damages for unlawful confinement

because the § 1983 claim would necessarily imply the

invalidity of his conviction. The § 1983 cause of action

would not accrue unless the prisoner successfully

challenged his conviction in a habeas corpus action.

Balisok agrees that Heck applies to cases involving

the loss of good-time credits, but argues that the rule in

Heck does not bar his § 1983 claim. This argument is

based on Balisok’s contention that his due process claim

would not necessarily imply the invalidity of his loss of

good-time. Res. Br. 11-16, 21-25. This contention is

wrong.

. _ In his complaint , Balisok alleges that prison officials

intentionally violated the due process requirements of

Wolff. Under Wolff “the inmate facing disciplinary

proceedings should be allowed to call witnesses and present

documentary evidence in his defense”. 418 U.S. at 566.

Balisok’s due process claim is that the prison official s’

Practice is to deprive jail house lawyers of the ability to

present witness statements. Res. Br. 11, Pet. App. I-4 to

I-6. This is not a mere procedural technicality, but a clear

and serious claim that prison officials violated Wolff's

The only reason offered by Balisok that such a

invalidate the loss of good-time credits if there is some

evidence to support the conclusion reached by the prison

officials. Res. Br. 21-25. This argument is not well taken

14

for two reasons.

First, Balisok misinterprets the some evidence rule.

This rule only governs the evidentiary requirement of due

process. Superintendent, Mass. Corr. Institution v. Hill,

472 U.S. 445, 455-56 (1985); In re Johnston 109 Wn.2d

493, 497, 745 P.2d 864 (1987) ("[t}he evidentiary

requirements of due process are satisfied if there is some

evidence’ in the record to support a prison disciplinary

decision revoking good time credits."); Jn re Burton, 80

Wn. App. 573, 910 P.2d __, review denied, __ Wn.2d

___ (1996). The some evidence standard does not apply to

the Wolff requirement that prisoner’s have the right to

present witnesses. °

Second, Balisok’s argument about the some

evidence standard cannot be correct because it would

render Wolff's due process requirements meaningless.

Wolff requires that a prisoner (1) receive notice of the

alleged violation; (2) have the opportunity to present

witnesses and documentary evidence when not unduly

hazardous to institutional safety and correctional goals, and

(3) receive a written statement of evidence relied on and

the reasons for the disciplinary action. Wolff, 418 U.S. at

563-66. According to Balisok, prison officials could

violate all three of these due process requirements and a

loss of good-time credits would always be sustained if there

was some evidence of violations. It would be illogical if

violations of Wolff's due process requirements, which are

specifically designed to prevent arbitrary deprivation of

good-time credits, would never justify restoration of the

good-time credits arbitrarily taken.

Balisok’s § 1983 claim is barred by Heck because

it necessarily implies the invalidity of his loss of good-time

credits.

15

D. Dismissal of Balisok’s § 1983 Claim is

Consistent With Wolff.

We have set forth two independent bases why

Balisok’s § 1983 claim should be dismissed. Both are

consistent with this Court's decision in Wolff, where a class

Balisok relies heavily on dicta in Heck where the

Court suggested, without deciding, that the “passage [in

Wolff] recognized a § 1983 claim for using the wrong

procedures, not for reaching the wrong result.” Heck, 114

S. Ct. at 2370; Res. Br. 14. However, Heck qualified this

Statement by observing that “the claim at issue in Wolff did

not call into question the lawfulness of the Plaintiff's

continuing confinement." Heck, 114 S. Ct. at 2370. As

we have shown in this case, the serious procedural

violations alleged by Balisok do call into question the

lawfulness of his confinement.” See supra, p. 13-14.

We have also explained why Wolff is distinguishable

as a Class action challenge to established and undisputed

"?Balisok and the ACLU also argue that Heck has been uniformly

and consistently applied to allow claims that seek only relief from

procedures. Res. Br. 34-36, ACLU Br. 9-10. We established that this

contention is not true in our petition and its reply. Pet. 12-21; Pet.

Reply 1-6. Even authority cited by Balisok refutes this claim. Balisok

cites Dog Essence Saladin Amin v. Pruen, _ F.Supp. __, 1996 WL

341522 (E.D. Va. June 12, 1996); Res. Br 35, n.22. In Dog Essence

the district court appli.d Heck to dismiss a claim that a prison

disciplinary proceeding violated due process. The court also noted that

the circuits have failed to apply Heck uniformly.

"Moreover, if Wolff had resolved the question presented in this

case, the Court would not have reserved it in footnote 2 of Heck, when

it refused to address Heck’s argument that he was only seeking

damages for harm other than that stemming from his conviction.

16

state procedures. Pet. Br. 32-34. Unlike the broad-based

challenge addressed in Wolff, Balisok’s challenge is to

alleged procedures of his own disciplinary proceeding.

Balisok argues that the existence of class

certification is not relevant to the question of exhaustion

because a court will apply the same test to decide whether

the litigants will be entitled to prospective relief. Res. Br.

17 n. 11. Similarly, the ACLU argues that class

certification is an irrelevant distinction because the number

of prisoners in a case does not change the nature of the

relief sought. ACLU Br. 24 n. 20.

Both Balisok and the ACLU miss the point of the

class action distinction. Class certification is relevant

because it does alter the nature of the claims that will be

reviewed by the court. Through the process of class

certification, a federal court can make a principled decision

as to whether there may be a legitimate need for institution-

wide relief from established state procedures. If there is,

then the litigation will not merely involve the claims of

individuals who have suffered a loss of liberty. The class

will also include prisoners who have not yet lost good-time

credits, are not attacking their duration of confinement, and

whose claims are cognizable under § 1983.

Although some class members may have lost good-

time credits, exhaustion is largely futile if identical claims

are already being litigated on behalf of class members

whose confinement is not called into question. In such a

case, the court has the discretion to decide whether a class

action is “superior to other available methods for the fair

and efficient adjudication” of the procedural claims. Fed.

R. Civ. P. 23(b)(3); see Leonard v. Mississippi State

Probation & Parole Bd. , 509 F.2d 820, 823-24 (Sth Cir.),

cert. denied, 423 U.S. 998 (1975); Project Release v.

Prevost, 463 F. Supp. 1033, 1039 (E.D.N.Y. 1978)

(because habeas corpus was not available to those class

members who may be confined in the future, suit under §

17

1983 was found proper); Tucker v. Montgomery Bd. of

Comm'rs, 410 F. Supp. 494, 501 (M.D. Ala. 1976) ("Even

if Tucker’s suit is viewed as more in the nature of a habeas

corpus claim, his status as class representative permits him

to proceed under § 1983 on behalf of the class.").

Il. CONCLUSION

For the foregoing reasons and those stated in the

opening brief, the prison officials respectfully request that

the decision of the United States Court of Appeals for the

Ninth Circuit be reversed, and that Balisok be required to

successfully exhaust his habeas corpus remedies before

proceeding against state prison officials under § 1983.

RESPECTFULLY SUBMITTED

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

Kathleen D. Mix*

Talis Merle Abolins

William Berggren Collins

Mary E. Fairhurst

Daniel J. Judge

Assistant Attorneys General

Counsel of Record*

Counsel for Petitioners

PO Box 40116

Olympia, Washington 98504-0116

(360)586-1445

September 1996