Benyehudah Whitfield v. Erika Howard, et al
Filed opinion of the court by Chief Judge Wood. REVERSED and REMANDED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Daniel A. Manion, Circuit Judge. [6829293-1]  [15-2649]
United States Court of Appeals
For the Seventh Circuit
BENYEHUDAH WHITFIELD II,
ERIKA R. HOWARD, et al.,
Appeal from the United States District Court for the
Central District of Illinois.
No. 3:13-cv-03192 — Richard Mills, Judge.
ARGUED OCTOBER 27, 2016 — DECIDED MARCH 28, 2017
Before WOOD, Chief Judge, and BAUER and MANION, Circuit
WOOD, Chief Judge. Benyehudah Whitfield spent nearly 17
years in the custody of the Illinois Department of Corrections.
He contends that he would have been released earlier had it
not been for the retaliatory revocation of good-time credits; he
lost those credits in three prison disciplinary proceedings.
Whitfield filed a 42 U.S.C. § 1983 suit after his release in 2011,
alleging that his constitutional rights were violated by his improperly postponed release. The district court granted summary judgment for the defendants, reasoning that Whitfield’s
claims were barred by Heck v. Humphrey, 512 U.S. 477 (1994),
Edwards v. Balisok, 520 U.S. 641 (1997), and Burd v. Sessler, 702
F.3d 429 (7th Cir. 2012). We conclude, to the contrary, that
those cases do not bar his action, and so we reverse and remand for further proceedings.
The three prison disciplinary proceedings against Whitfield at issue here took place in 2002, 2003, and 2007. Combined, they resulted in the revocation of a total of 16 months
of good-conduct credit Whitfield had earned. While incarcerated, Whitfield diligently filed administrative grievances regarding all three disciplinary reports and actions; the Administrative Review Board denied each one. In January 2003 and
June 2004, Whitfield also filed separate section 1983 actions
challenging the 2002 and 2003 disciplinary proceedings, each
of which included a claim of retaliation in violation of the First
Amendment. The district courts dismissed the First Amendment retaliation claims in both of those actions as barred by
Heck. Such a dismissal is without prejudice. See Moore v. Burge,
771 F.3d 444, 446 (7th Cir. 2014) (if barred by Heck, plaintiff
sued too early, not too late, because statute of limitations does
not begin to run until Heck bar lifted); Polzin v. Gage, 636 F.3d
834, 839 (7th Cir. 2011) (“If the district court decides that dismissal on the Heck doctrine alone is appropriate, it should dismiss that part of [plaintiff’s] complaint without prejudice.”).
Whitfield also embarked on a spirited, if procedurally
flawed, effort to vindicate his rights in state court. In March
2004, he filed a complaint for mandamus relief in the Livingston County (Illinois) circuit court alleging due process violations in the 2003 disciplinary proceeding. The circuit court denied the claim and held that Whitfield had received whatever
process was due. He appealed that denial, but the state appellate court affirmed. Whitfield did not petition for leave to appeal that decision to the Illinois Supreme Court.
In August 2009 Whitfield attempted to challenge all three
revocations of his good-conduct credit through a state-law petition for habeas corpus filed in the Randolph County circuit
court. The circuit court dismissed the complaint without prejudice, because under Illinois law it failed to state a cognizable
theory. Whitfield moved for reconsideration and argued that
the court should recharacterize his complaint as one seeking
mandamus, but the court refused to do so. Whitfield appealed, but he failed to include a copy of the record (because
he did not have one). Claiming indigence, he requested a free
record on appeal, but the court denied his motion because
state law conferred no right to a free record in a civil action.
He moved for and was granted two extensions of time to file
the record. Although he still did not have the official record,
he sought leave to file his personal documents as the record.
The court rejected that motion and dismissed the appeal in
June 2010 for want of prosecution (meaning only for lack of a
record). Whitfield petitioned the Illinois Supreme Court for
leave to appeal, but it denied his petition in September 2010.
On March 2, 2011, Whitfield filed a federal petition for habeas corpus, in which he again tried to challenge the three disciplinary actions. The state argued that Whitfield’s petition
would be rendered moot in July 2011, when he was scheduled
for release, and that Whitfield had failed to exhaust his state
remedies. The district court dismissed the action as moot on
July 25, 2011, because by that time Whitfield was no longer in
This string of failures did not stop Whitfield, who filed the
present section 1983 action just short of two years later, on
July 8, 2013. Upon a preliminary review pursuant to 28 U.S.C.
§ 1915(e), the district court found that Whitfield stated claims
against the adjustment committee members for due process
violations and for retaliation in violation of the First Amendment. Nonetheless, it granted summary judgment for the defendants on the basis that Whitfield’s suit was barred by Heck
and Balisok, as interpreted in Burd v. Sessler. The latter case requires a plaintiff to pursue timely collateral relief while in custody, and the district court concluded that Whitfield had not
done so. Whitfield moved for reconsideration twice; the district court denied both requests. This appeal followed.
Pointing to a procedural hiccup surrounding Whitfield’s
motions for reconsideration and notices of appeal, the state
begins with a challenge to our appellate jurisdiction. That argument takes precedence, and so we address it first.
The district court issued its order granting summary judgment for the defendants on January 7, 2015. Relying on Federal Rule of Civil Procedure 59, Whitfield filed a timely motion for reconsideration of that order on January 21, 2015; the
district court denied that motion on June 5, 2015. Complicating matters, Whitfield filed a second motion for reconsideration that purported to rely on both Rule 59 and Rule 60(b) on
June 29, 2015. The district court denied that motion on July 8,
2015, and properly advised Whitfield that the June 29 motion
had not reset the clock on his time to appeal from the January
7 order. Whitfield first responded with a notice of appeal limited to the July 8 order; he filed that notice on July 22, 2015.
This notice of appeal was untimely in relation to the January
7 and June 5 orders, but it was timely for the July 8 order (construing it as a denial of relief under Rule 60(b)).
But Whitfield was not finished. On August 4, 2015, he filed
a motion pursuant to Federal Rule of Appellate Procedure
4(a)(5) for an extension of time to file a notice of appeal of the
judgment and filed an amended notice of appeal that included the January 7, June 5, and July 8 orders. That rule permits the district court to extend the time to file a notice of appeal if “a party so moves no later than 30 days after the time
prescribed by this Rule 4(a) expires.” FED. R. APP. P.
4(a)(5)(A)(i). The time prescribed by Rule 4(a) for Whitfield
would have been 30 days, see FED. R. APP. P. 4(a)(1)(A), had he
not filed a timely Rule 59 motion for reconsideration. But he
did file such a motion within the permitted 28 days, see FED.
R. CIV. P. 59(b), and that is one of the motions that extends the
time for filing an appeal until the entry of the order disposing
of the motion. See FED. R. APP. P. 4(a)(4)(A)(iv). The district
court denied Whitfield’s original Rule 59 motion on June 5,
2015. At that point, he had 30 days to file a timely notice of
appeal, or until July 5, 2015. Rule 4(a)(5)(A)(i) then gave him
an extra 30-day period in which to file a motion for an extension of time for filing his notice of appeal. That takes us to
August 4, 2015, exactly—the date when Whitfield filed his
motion to extend and his notice of appeal from all of the district court’s orders.
The district court found excusable neglect in Whitfield’s
failure to file a timely appeal of the original judgment, as required by Rule 4(a)(5)(A)(ii), and granted him an extension to
file the amended notice of appeal. In so doing, it did not abuse
its discretion or otherwise act unreasonably. The appellees
neither objected to the August 4 motion to extend the time for
appeal nor did they cross-appeal from the grant of that order.
Cf. Sherman v. Quinn, 668 F.3d 421 (7th Cir. 2012) (consolidating plaintiff’s appeal and defendant’s cross-appeal of order
granting motion for time to extend appeal). Their silence can
be taken into account for purposes of the prejudice inquiry,
even though it cannot waive a fundamental jurisdictional defect (assuming for the sake of argument that this is the proper
way to look at the provisions in the rule for extensions of
time). See Bowles v. Russell, 551 U.S. 205 (2007) (time for appeal
in civil cases is jurisdictional); see also Netzer v. Office of Lawyer
Regulation, Nos. 16-3236 & 16-3713, 2017 WL 961740 (7th Cir.
Mar. 13, 2017) (questioning whether FED. R. APP. P. 4(a)(5)(C)
sets a jurisdictional time limit but finding no need to resolve
When a district court is considering whether excusable neglect exists, it should take into account such factors as “the
danger of prejudice [to the non-moving party], the length of
the delay and its potential impact on judicial proceedings, the
reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted
in good faith.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd.
P’ship, 507 U.S. 380, 395 (1993). The district court here did just
that. It found that the delay was short, and it saw no reason to
question Whitfield’s good faith. It understood how Whitfield,
as a pro se litigant, could have misunderstood the operation of
Rule 4(a)(4), and it noted that when the court informed him of
the correct reading of the rule, he acted promptly in filing his
motion to extend.
This was a reasonable response to the situation. The federal rules are complex, and the court may find excusable neglect in a pro se litigant’s confusion about how they work. See
McCarty v. Astrue, 528 F.3d 541, 544 (7th Cir. 2008). With the
extension, Whitfield’s August 4 notice of appeal was timely,
and it sufficed to bring the full case before us. We therefore
deny the state’s motion to dismiss for want of appellate jurisdiction.
We are now ready to turn to the heart of the appeal. We
review a grant of summary judgment de novo, viewing all evidence and drawing all reasonable inferences in favor of the
non-moving party. Janusz v. City of Chicago, 832 F.3d 770, 774
(7th Cir. 2016). Summary judgment is appropriate when
“there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a). We are free to affirm a grant of summary judgment
on any basis supported by the record. Boss v. Castro, 816 F.3d
910, 916 (7th Cir. 2016).
Although Whitfield, still proceeding pro se (though supported by amici, whose help we gratefully acknowledge),
challenges the district court’s decision on a number of
grounds, we can disregard most of them. The key question
relates to the way in which Heck applies to Whitfield’s situation. We reject Whitfield’s effort to argue that the state waived
its Heck defense by asserting in its motion for summary judgment that Whitfield’s claims were barred by res judicata. Our
own review of the record satisfies us that the defendants preserved their Heck defense in the motion for summary judgment. Moreover, Heck formed the basis of the district court’s
decision and has been fully briefed on appeal.
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Supreme
Court considered the potential overlap between suits brought
under 42 U.S.C. § 1983 and those relying on the habeas corpus
statute governing state prisoners, 28 U.S.C. § 2254. In Heck, the
Court characterized Preiser as holding “that habeas corpus is
the exclusive remedy for a state prisoner who challenges the
fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983.” Heck, 512 U.S. at 481 (emphasis added).
The section 1983 plaintiffs in Preiser had challenged the administrative revocation of their good-conduct credits. The
Court, emphasizing Congress’s intent to make habeas corpus
the exclusive remedy for someone seeking a ruling from the
courts that he should be released sooner, held that “when a
state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a
writ of habeas corpus.” Preiser, 411 U.S. at 500.
Heck extended this rule to section 1983 suits that did not
directly seek immediate or speedier release, but rather
sought monetary damages that would call into question the
validity of a conviction or term of confinement. 512 U.S. at
486–87. The Court held that a prisoner has no claim under
section 1983 until he receives a favorable decision on his underlying conviction or sentence, such as through a reversal
or grant of habeas corpus relief. Id. In Balisok the Court extended this bar to section 1983 suits brought by prisoners
who wanted to challenge the outcome of prison disciplinary
proceedings in which the plaintiff sought money damages
rather than release. The concern the Court identified was
similar to the one involved in Heck: if the plaintiff established
a procedural defect in his administrative proceedings, it
would imply the invalidity of the deprivation of his goodtime credits. 520 U.S. at 646. This in turn would imply that he
was entitled to an earlier release, relief for which a grant of
habeas corpus is the exclusive remedy. See Preiser, 411 U.S. at
In Wilkinson v. Dotson, the Court considered another variation on this theme: a challenge under section 1983 to the procedures used in a prison parole hearing, after parole boards
rejected the requests of two state prisoners. 544 U.S. 74 (2005).
The section 1983 suits were not barred there because they did
not fall within the “implicit habeas exception.” Id. at 82. The
prisoner-plaintiffs’ claims would have invalidated the state
procedures used to deny parole eligibility and suitability, but
would not have necessarily meant that their confinement was
invalid or that they were entitled to either immediate release
or a shorter term. Id. A new hearing that was untainted by the
procedural flaws might just as easily result in the same substantive decision as a different one. Similarly, in Skinner v.
Switzer, the Court held that a prisoner’s post-conviction claim
for DNA testing could be pursued in a section 1983 action, because success in the suit would not necessarily invalidate the
lawfulness of the confinement. 562 U.S. 521, 525 (2011).
The Supreme Court has not yet had occasion to speak directly to the applicability of Heck when a plaintiff is no longer
in custody and thus is jurisdictionally barred from using habeas corpus. See, e.g., Maleng v. Cook, 490 U.S. 488, 490 (1989);
Stanbridge v. Scott, 791 F.3d 715, 718 (7th Cir. 2015). We did,
however, address one such situation in Burd v. Sessler. In Burd,
the plaintiff waited until he had been released from prison
and had completed his parole, and only then brought a section 1983 action alleging that prison officials had denied him
his right of access to the courts, without which he was unable
to withdraw his guilty plea or to appeal. 702 F.3d 429. We decided that “Heck applies where a § 1983 plaintiff could have
sought collateral relief at an earlier time but declined the opportunity and waited until collateral relief became unavailable before suing.” Id. at 436. We worried that it would undermine Heck—and worse, the fundamental line between habeas
corpus and civil rights actions dating back to Preiser—to allow
a plaintiff who had not been precluded by some sort of legal
impediment to skirt the Heck bar by waiting to bring his section 1983 action until habeas corpus was no longer available.
Id. We therefore held that “Heck bars a § 1983 action where: (1)
favorable judgment would necessarily call into question the
validity of the underlying conviction or sentence and (2) the
plaintiff could have pursued collateral relief but failed to do
so in a timely manner.” Id.
There are a number of significant differences between
Burd and the present case. First, the plaintiff in Burd sought no
collateral relief—either in a timely manner, as contemplated
by the prison’s rules, or otherwise—before filing his section
1983 action after his release from custody. Whitfield, in contrast, has attempted to follow through on every remedy and
more as he has tried to address what he sees as the retaliatory
motive behind the revocation of his good-time credits. Thus,
to the extent that diligence is needed, Burd failed the test and
Whitfield passes. The key point for this purpose is that someone such as Burd who bypasses an opportunity for collateral
review cannot take advantage of the portion of Heck that postpones a claim’s accrual until release. Second, the type of relief
that Burd sought was inherently not capable of being addressed by damages, as long as the underlying conviction
stood. Burd was complaining about his lack of access to the
law library and to the courts. The underlying claim for which
he sought access to the courts was an opportunity to withdraw his guilty plea. Heck, we held, forbids such an action
“until the plaintiff can demonstrate his injury by establishing
the invalidity of the underlying judgment.” Id. at 435. Whitfield, in contrast, is seeking relief on the ground that he was
kept in prison for too long.
The case that governs most directly is therefore not Heck,
but Balisok. There, the petitioner was challenging the procedures used in the prison disciplinary hearing that resulted in
his loss of good-time credits. Had he prevailed, the result of
the disciplinary proceeding would have to have been set
aside. Whitfield, in contrast, is arguing that the hearings
should never have taken place at all, because they were acts
of retaliation for his exercise of rights protected by the First
Amendment. He has no quarrel with the procedures used in
the prison disciplinary system. He could just as well be saying
that a prison official maliciously calculated an improper release date, or “lost” the order authorizing his release in retaliation for protected activity. In short, the essence of Whitfield’s
complaint is the link between retaliation and his delayed release; the fact that disciplinary proceedings were the mechanism is not essential. Balisok also took care to be precise, when
it held that the petitioner’s claim for prospective injunctive relief could go forward under section 1983, since it did not necessarily imply anything about the loss of good-time credits.
We therefore do not think that Burd provides the answer
to the question now before us: whether a plaintiff who (1) did
seek collateral relief of an administrative determination in a
timely manner, while in custody, but was told to wait (recall
that the district court’s dismissal was for mootness because of
his release), (2) is not making a procedural challenge to the
prison disciplinary hearings, and (3) never had his day in
court prior to his release, is entitled to adjudicate his case under the only statute left: section 1983?
We addressed a similar situation in Carr v. O’Leary, 167
F.3d 1124 (7th Cir. 1999). There, the plaintiff-inmate filed a section 1983 action alleging due process flaws in the prison disciplinary system that led to the revocation of his good-time
credits. He had brought his suit prior to the Supreme Court’s
decisions in Heck and Balisok. After this court held that Heck
applied to prison disciplinary proceedings in Miller v. Ind.
Dep’t. of Corr., 75 F.3d 330 (7th Cir. 1996)—a holding confirmed
the next year by the Supreme Court in Balisok—the defendants raised the Heck defense, and the district court held that
the suit was barred. We ultimately remanded on a waiver issue, but suggested in dicta that Heck likely would not have
barred the suit because the plaintiff had been released from
custody and could therefore not maintain a habeas corpus action. See Carr, 167 F.3d at 1127.
The district court here criticized Whitfield for “ignor[ing]
his chance to pursue collateral relief while in prison by not
exhausting his state court remedies.” It thought that allowing
the suit to proceed would allow a plaintiff such as Whitfield
to skirt the Heck bar by waiting to file a habeas corpus action
until shortly before release, and thereby avoid a state-court
ruling on the merits.
This fails, however, to give Whitfield credit for the timely
actions he did take. This is not a case in which the prisoner
filed something long after the events in question, at the last
minute before his release, and then urges that the Heck bar
should be lifted after he is out of custody. Moreover, the district court’s logic is at odds with the Supreme Court’s admonition in Balisok against engrafting a nonstatutory exhaustion
requirement: “We reemphasize that § 1983 contains no judicially imposed exhaustion requirement; absent some other
bar to the suit, a claim is either cognizable under § 1983 and
should immediately go forward, or it is not cognizable and
should be dismissed.” 520 U.S. at 649. Heck makes much the
same point: “ … Preiser did not create an exception to the ‘no
exhaustion’ rule of § 1983; it merely held that certain claims
by state prisoners are not cognizable under the provision, and
must be brought in habeas corpus proceedings, which do contain an exhaustion requirement.” 512 U.S. at 481.
By requiring a plaintiff who is released from custody to
have exhausted all imaginable collateral options before walking out the prison door, the district court ran afoul of this
guidance. If Heck is as strict a bar to suit as the district court
implied, then there is no reason why the Balisok Court would
have preserved the suit for prospective injunctive relief: virtually everything would have been precluded unless or until
full exoneration occurred. And, as we have said, there are important factual distinctions between Whitfield’s case and
We worried in Burd about situations in which a plaintiff
has a constitutional claim, yet (perhaps for strategic reasons)
sits it out while in custody and waits to bring her claim until
habeas corpus is jurisdictionally barred because the “custody” requirement is no longer met. See 702 F.3d at 436. Allowing section 1983 suits by plaintiffs who sleep on their
rights would undermine our interest in promoting federalstate comity: “the States have an important interest in not being bypassed in the correction of [their court and prison administration] errors.” Preiser, 411 U.S. at 492. But there is a
subtle but important difference between requiring a plaintiff
to pursue appropriate relief in a timely manner (that is, while
she is in custody and able to do so), and a requirement that
she exhaust all collateral relief. Although Whitfield may not
have pursued all of his collateral relief options in a procedurally perfect manner, he is hardly in the position of having bypassed the state options entirely or leaving them until the eve
of his release. (We pass no judgment on whether any of the
state court decisions would have res judicata effect in Whitfield’s section 1983 suit. This, as well as any other issues we
do not reach, are open for development on remand.) Whitfield
did his best to obtain relief in a timely way while he was in
custody, and Burd requires no more.
We understand that the district court may have been concerned about the incentives an inmate might have to try to file
strategically in order to skirt the strict habeas corpus requirements. But there are a number of tools that combine to block
such efforts at manipulating the system. A challenge that
would undermine a state-court conviction or sentence would
still face Rooker-Feldman jurisdictional problems or res judicata
issues in a lower federal court. Suits that challenged condi-
tions of confinement might run into statute of limitations issues, as they could have been brought as section 1983 actions
while the person was in custody. And prisoners already have
the strongest possible incentive to ensure that they do not remain behind bars a day longer than necessary, whether because of the way their sentences are calculated, or because of
the award or removal of good-time credits, or any other factor.
There is little to no incentive to postpone such a critical question until after the harm of over-long incarceration has occurred. That, too, is unlike the library- and court-access claim
involved in Burd, where the plaintiff lost little by waiting until
his release to see what litigation might bring. See Nonnette v.
Small, 316 F.3d 872, 878 n.7 (9th Cir. 2002).
We therefore find that Whitfield’s claims are not barred by
Heck or Balisok, and REVERSE and REMAND to the district court
for further proceedings consistent with this opinion.
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