Sammy Moore v. Sylvia Mahone, et al

Filing

Filed opinion of the court by Judge Posner. REVERSED and REMANDED. Richard A. Posner, Circuit Judge; John L. Coffey, Circuit Judge and Joel M. Flaum, Circuit Judge. [6322666-3] [6322666] [09-3515]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 09-3515
S AMMY J. M OORE,
Plaintiff-Appellant,
v.
S YLVIA M AHONE, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 07-1173—Harold A. Baker, Judge.

S UBMITTED M AY 25, 2011—D ECIDED JULY 15, 2011

Before P OSNER, C OFFEY, and F LAUM, Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, an inmate of an
Illinois state prison, brought suit against two guards
under 42 U.S.C. § 1983 claiming that they had used excessive force against him in an altercation in the prison
cafeteria, in violation of his constitutional right to be
free from cruel and unusual punishments. The district
judge dismissed the claim, without waiting for any response by the defendants, on the authority of Heck v.

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Humphrey, 512 U.S. 477 (1994). With that claim the plaintiff had joined a claim against medical personnel at a
different prison (to which he had been transferred immediately after the altercation) for willful disregard of
the injuries that he’d sustained from the alleged use
of excessive force against him. The district judge
granted summary judgment for the medical personnel.
That ruling was clearly correct, so we say no more about
it. The dismissal of the excessive-force claim presents
a closer question.
After the altercation a prison disciplinary board
(called an Administrative Review Board) had found the
plaintiff guilty of “Assaulting Any Person, Dangerous
Disturbances, Insolence, and Disobeying a Direct Order.”
The board credited the officers’ statements that the
plaintiff had become belligerent and argumentative and
had punched one of the officers repeatedly in the face
and head before being handcuffed by another officer.
The plaintiff was punished by being placed in segregation and deprived of certain privileges and some goodtime credits. He did not challenge the board’s ruling,
which was made in May 2007 and has long been final.
Under the rule of the Heck case, a civil rights suit cannot
be maintained by a prisoner if a judgment in his favor
would “necessarily imply” that his conviction had been
invalid, id. at 487, and for this purpose the ruling in a
prison disciplinary proceeding is a conviction. Edwards
v. Balisok, 520 U.S. 641 (1997); Gilbert v. Cook, 512 F.3d
899, 900 (7th Cir. 2008). The Heck rule is analogous to
collateral estoppel: an issue determined with finality in

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a full and fair adjudicative proceeding (and essential to
the decision in that proceeding) cannot be reopened in
a subsequent case. Id. at 901; Ballard v. Burton, 444 F.3d
391, 397 (5th Cir. 2006). The reason for requiring that the
issue have been essential is that if resolving the issue
was irrelevant to the outcome of the case, there was
neither incentive to challenge that resolution on appeal
nor reason for the appellate court to consider such
a challenge.
So Heck forbids a prisoner in his civil rights case to
challenge a finding in his criminal or prison-discipline
case that was essential to the decision in that case; if
he insists on doing that, the civil rights case must be
dismissed. Okoro v. Callaghan, 324 F.3d 488, 490 (7th Cir.
2003).
But we said in the Gilbert case that the prisoner can
remain “agnostic” in his civil rights case about the
findings in the criminal (or disciplinary) proceeding;
he doesn’t have to confess. “Instead of insisting that
Gilbert confess in open court to striking a guard,
the [district] judge should have implemented Heck . . .
through instructions to the jury at the start of trial, as
necessary during the evidence, and at the close of the
evidence. It would have sufficed to tell the jurors that
Gilbert struck the first blow during the fracas at the
chuckhole, that any statements to the contrary by
Gilbert (as his own lawyer) or a witness must be
ignored, and that what the jurors needed to determine
was whether the guards used more force than was reasonably necessary to protect themselves from an unruly
prisoner.” 512 F.3d at 902.

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Evans v. Poskon, 603 F.3d 362, 364 (7th Cir. 2010), extended the holding of Gilbert to a case in which
the plaintiff’s civil rights complaint, en route to alleging
excessive force, denied that he had resisted arrest, though
he had been convicted of that crime. We said that the
court should simply disregard that allegation, but we
added that although “a plaintiff is master of his claim
and can, if he insists, stick to a position that forecloses
relief . . . . [W]e do not understand Evans to assert that he
is advancing propositions (2) and (3) [(2) was that
the police used excessive force to effect custody and
(3) that the police beat him severely even after reducing
him to custody] if and only if the district court accepts
proposition (1) [that he did not resist being taken
into custody]. His appellate briefs tell us that he is
willing to proceed on proposition (3) alone [that the
police beat him severely even after reducing him to
custody].” Proof of just proposition (3) would avoid the
Heck bar. See also Hardrick v. City of Bolingbrook, 522
F.3d 758, 764 (7th Cir. 2008); Coble v. City of White
House, 634 F.3d 865, 867 (6th Cir. 2011); Bush v. Strain,
513 F.3d 492, 498 n. 13 (5th Cir. 2008).
This case is in between Okoro and the other cases
we’ve cited. The plaintiff was not agnostic about
whether he had engaged in misconduct, but neither did
he totally and explicitly deny it. Yet in contrast to
Evans, who made clear to us that he would not insist
on denying that he had resisted arrest (for if he did
insist, his suit would be barred by Heck), our plaintiff
came close to doing so—close enough to create real
doubt concerning his intentions. In Hardrick v. City of

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Bolingbrook, supra, where the plaintiff had pleaded guilty
to resisting a police officer by “struggl[ing] while being
handcuffed,” 522 F.3d at 760, we drew a distinction
between the officers’ use of force before and after the
handcuffing: “the fact that Hardrick ‘struggled while
being handcuffed’ at one point in time does not
preclude the possibility that at another point in time
[he] was ‘peaceably waiting to be handcuffed.’ ” Id. at 764.
So far as appears, Hardrick had not denied that he
had struggled while being handcuffed, and the state had
not contended that the struggle had begun earlier; apparently he had started to struggle when they started
to handcuff him.
The amended complaint in the present case alleges
that before any physical contact, the plaintiff and the
officer who shortly afterwards allegedly struck him with
a walkie-talkie had “had a short discussion in regards
to [the officer’s] talking to plaintiff in a disrespectful and
unprofessional manner after plaintiff asked [the officer]
where he was suppose[d] to sit” in the cafeteria. After
the plaintiff sat down at the table to which the officer
had directed him, the officer “approached plaintiff and
began to make comments in an attempt to provoke plaintiff into engaging in a physical altercation with him.”
According to the complaint, the officer failed to provoke
the plaintiff. “[A] short time later, while plaintiff was
eating, he noticed a hand reach over his right shoulder,
which he slapped away with his left hand. [He] then
jumped up out of his seat and turned around to see
who had reached over his shoulder, at which time he
seen [the officer] was the only person standing behind

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him. A short time thereafter plaintiff was tackled from
behind, placed on the floor and told to put his hands
behind his back and ‘cuff up’ [meaning, allow handcuffs
to be placed on him, by the other officer]. Plaintiff complied with [that officer’s] order and did not make any
attempt to resist. [The officer] then held plaintiff down
long enough to allow [the other officer] to bash him on
the top of his head two times with his walkie-talkie . . . .
At the time [the officer] bashed plaintiff in the head
with his walkie-talkie, plaintiff was subdued with handcuffs, was not posing an immediate threat, or a threat
in general, to himself, another, or [the officers] that
would require such force to be used.” After the bashing,
the other officer told the officer who had bashed the
plaintiff “that’s enough.”
These allegations are in tension with the disciplinary
board’s findings. Slapping away a hand that was placed
on one’s shoulder without express or implied authorization to do so would not be an assault (more precisely,
in the language of tort law, a battery—an assault is a
threatening gesture, not an impermissible physical contact), but instead, if as the plaintiff claims he didn’t
know it was an officer’s hand, a lawful response to an
unpermitted touching, and would not justify discipline.
The plaintiff’s narrative implicitly (and remember that
Heck requires only, to bar the subsequent suit, that the
complaint in it “necessarily imply” the invalidity of the
prior judgment), and in places explicitly, denies that
he created a disturbance, dangerous or otherwise, was
insolent, or was disobedient, as found by the disciplinary board. According to his narrative he was tackled

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from behind shortly after standing up to see who had
placed a hand on his shoulder. In his statement to the
disciplinary board—which the board didn’t credit—he
said that the officer told “me he was not going to hit
me today. Before I know it I get tackled . . . . I didn’t hit
[him] and my head was busted.” In light of that statement, the allegation that he was tackled from behind
shortly after standing up is most naturally understood
as a denial that he struck the officer repeatedly, or for
that matter at all, in the face and head.
The narrative leading up to the allegation of bashing
with a walkie-talkie cannot be dismissed as irrelevant to
the claim of excessive force. The narrative depicts
the plaintiff as a lamb—the victim of a gratuitous, brutal
attack. Suppose instead that he was a raging bull, that
the second officer had to struggle to handcuff him and
in the mêlée the first officer struck him with his walkietalkie in the reasonable belief that he was defending
himself or the other officer or both; prison guards ordinarily are not armed, and a walkie-talkie might have
been the nearest thing the officer had to a weapon. The
complaint denies that the plaintiff was violent. The
denial not only is inconsistent with the disciplinary
board’s finding but serves to strengthen the plaintiff’s
claim of excessive force.
The judge could, perhaps should, have disregarded, as
mere surplusage, the portions of the complaint in which
the plaintiff denies the board’s findings. See, e.g., United
States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374,
378 (7th Cir. 2003). In a system of notice pleading, the

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function of the complaint is to alert the defendant to the
nature of the plaintiff’s claim. Submissions seeking (or
opposing) summary judgment, and final pretrial orders,
contain the parties’ final contentions. E.g., Bennett v.
Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). But in
the wake of Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009), complaints must be dismissed if they fail to state
a “plausible” basis for relief. The basis for relief stated
in our plaintiff’s complaint is, given Heck, implausible,
for it is that the plaintiff was the victim of an utterly
unprovoked assault, and while that conceivably is true,
it is barred by Heck. The judge could have retained the
case (minus the deliberate-indifference claim) on the
authority of Evans, and just have forbidden the plaintiff
to embroider his claim with the rejection of the
disciplinary board’s findings. But likewise he could do
what he did—dismiss it.
But not with prejudice. The plaintiff was proceeding
pro se. He may not have heard of Heck v. Humphrey
when he filed his complaint. All the judge said in dismissing the claim was that “as plaintiff lost good time
regarding the March 2, 2007, altercation with [the two
officers], his claim that they used excessive force against
the plaintiff is barred by Heck v. Humphrey.” This was
too terse, and in fact was erroneous. That the plaintiff
was disciplined didn’t trigger the application of Heck, as
the judge implied; what triggered it was the fact that
the plaintiff was challenging the findings of the disciplinary board. The judge should have said that, and rather
than dismissing the case with prejudice should either
have retained it but warned the plaintiff that he could

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not challenge the findings made by the disciplinary board
or have permitted him to file a second amended complaint
that would delete all allegations inconsistent with those
findings. McCann v. Neilsen, 466 F.3d 619, 622 (7th Cir.
2006). That might have been a preferable alternative to
letting the existing complaint stand and ignoring the
challenges in it to the disciplinary findings, since those
challenges permeate the complaint and the plaintiff may
be unwilling to abandon them.
The case must be returned to the district court to
decide whether to dismiss the complaint without prejudice or not dismiss but warn the plaintiff that he
cannot challenge the disciplinary board’s findings. If the
judge decides to dismiss it and the plaintiff then files a
new complaint, the judge should advise him of a possible
problem with venue. The plaintiff filed this case in the
Central District of Illinois, which was the proper venue
because his deliberate-indifference claim arose from
events at a prison in that district. But the incident from
which the excessive-force claim arose took place in a
prison in the Southern District of Illinois. If Moore files
a second amended complaint in the Central District
(which is where he continues to be imprisoned), he
should also file a motion to transfer the case to the Southern District, 28 U.S.C. § 1404(b), lest he be met with a
defense of improper venue. Fed. R. Civ. P. 12(b)(3). If the
judge decides not to require the plaintiff to file a
second amended complaint, he can still transfer the
excessive-force claim to the Southern District if that
would be a more convenient venue. 28 U.S.C. § 1404(a).

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There will be a further complication should the judge
decide to dismiss the complaint: the two-year limitations
period applicable to the plaintiff’s claim of excessive
force has expired. 735 ILCS 5/13-202; Wilson v. Garcia, 471
U.S. 261, 275 (1985). In light of the complexity of the
Heck rule in application, and the plaintiff’s pro se status,
the district judge if he dismisses the complaint should
give serious consideration to allowing a plea of equitable
tolling, provided the long interval between the filing of
the complaint and the dismissal of the suit was not the
result of inexcusable delay by the plaintiff.
The judgment is reversed and the case remanded
for further proceedings consistent with this opinion.
R EVERSED AND R EMANDED.

7-15-11