Whitfield v. Althoff et al

Filing 126

OPINION BY RICHARD MILLS, U.S. DISTRICT JUDGE: It is ordered that Plaintiff's motion to consolidate is DENIED. [122.] This case is DISMISSED without prejudice. The clerk is directed to close this case and enter judgment. SEE WRITTEN OPINION. Entered on 7/24/2020. (MJC, ilcd)

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E-FILED

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Friday, 24 July, 2020 12:24:25 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
BENYEHUDAH WHITFIELD,
Plaintiff,

v.
ERIC ALTHOFF, et al.,
Defendants.

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13-CV-3192

OPINION
RICHARD MILLS, U.S. DISTRICT JUDGE.
This case illustrates the complexity of determining whether a
42 U.S.C. § 1983 action lies to challenge the revocation of good time
credits in prison if habeas is unavailable.
That complexity no longer exists.
Under the Seventh Circuit’s recent opinion in Savory v.
Cannon, 947 F.3d 409 (7th Cir. 2020)(en banc)(Easterbrook, J.,
dissenting), no § 1983 action lies for that challenge regardless of the
availability of habeas relief.
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Savory requires dismissal of this case without prejudice.
Analysis
Plaintiff alleges that he lost 16 months of good conduct credit
as a result of three false disciplinary tickets he received in prison,
issued in retaliation for his protected First Amendment activities.
He filed this case after his release from prison and after trying to
pursue collateral remedies challenging the discipline while in
prison.
On January 7, 2015, this Court granted summary judgment to
Defendants. Relying on Heck v. Humphrey, 512 U.S. 477 (1994)
and progeny, this Court held that Plaintiff’s claims were barred
because Plaintiff’s attempts to pursue collateral relief while he was
incarcerated were insufficient to allow him to proceed on a civil
rights claim for damages. [1/7/2015 Order.] An inmate cannot
pursue a 42 U.S.C. § 1983 action challenging the loss of good time
credits unless and until those credits are restored through other
means, such as a state court order or a federal habeas corpus
action. The purpose of this “favorable termination” requirement is
to avoid conflicting judgments, promote finality, and respect comity.
Savory v. Cannon, 947 F.3d 409, 431 (7th Cir. 2020)(“Concerns
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about comity, finality, conflicting judgments, and ‘the hoary
principle that civil tort actions are not appropriate vehicles for
challenging the validity of outstanding criminal judgments’ all
underpin Heck’s favorable termination rule.”).
At the time this Court entered summary judgment, the door
appeared open a crack for § 1983 relief if habeas was unavailable.
This Court, however, concluded that Plaintiff had not done enough
to keep his foot in that door. This Court found that Plaintiff was
barred from pursuing a § 1983 claim, even though the habeas route
was also closed.
On March 28, 2017, the Seventh Circuit reversed this Court,
reasoning that Heck’s bar, as applied in Edwards v. Balisok, 520
U.S. 641 (1997), was not so strict as to preclude Plaintiff from
pursing a § 1983 action after his release. The Seventh Circuit
found that Plaintiff had diligently tried to pursue collateral relief to
restore his good time during his incarceration, pointing out that
enforcing the bar would leave Plaintiff without a federal remedy to
pursue through no fault of his own. Whitfield v. Howard, 852 F.3d
656 (7th Cir. 2017).

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On remand to this Court, discovery ensued, and, while
Defendants’ motion for summary judgment was pending, the
Seventh Circuit reversed its reversal of this case. In Savory v.
Cannon, 947 F.3d 409 (7th Cir. 2020), the Seventh Circuit dealt
with the claims of a former prisoner whose sentence had been
commuted while on parole and who was later pardoned. The
question in Savory was when Mr. Savory’s claims arising from his
conviction accrued in light of the Heck doctrine.
The Seventh Circuit held that Mr. Savory’s claims accrued
when he was pardoned, not when his sentence was commuted. The
Seventh Circuit established a bright line rule: A 42 U.S.C. § 1983
claim which implies the invalidity of a conviction or sentence cannot
proceed until Heck’s favorable termination requirement is satisfied,
regardless of the availability of collateral relief or the diligence in
pursuing that relief. Savory disavowed dicta in prior Seventh
Circuit cases suggesting that § 1983 relief might be available if
habeas is not. Savory also specifically overruled Whitfield v.
Howard, 852 F.3d 656 (7th Cir. 2017):
A plaintiff’s good-faith but unsuccessful pursuit of
collateral relief does not relieve him of Heck’s favorable
termination requirement. Because Whitfield had not yet
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obtained a favorable termination of the disciplinary
proceedings that led to a loss of good time credit, he had
no cognizable claim under section 1983. We must
therefore overrule our decision in Whitfield.
947 F.3d at 426.
Savory shut the door for those who cannot pursue
habeas relief, like Plaintiff. The Seventh Circuit acknowledged
that “[i]n requiring favorable termination before allowing a
section 1983 claim to proceed, Heck sets a high standard.
Undoubtedly, as the dissent asserts, some valid claims will
never make it past the courthouse door.” 947 F.3d at 428.
Savory also noted, “[t]he Supreme Court may revisit the need
for the favorable termination rule in cases where habeas relief
is unavailable, but it has not yet done so.” Id. at 431. A
petition for certiorari in Savory was filed with the U.S.
Supreme Court in June 2020 and is in the briefing stage.
On January 27, 2020, the Court notified the parties of
Savory and stated that summary judgment appeared
mandated for Defendants based on Savory and the overruling
of Whitfield v. Howard, 852 F.3d 656 (7th Cir. 2017). The

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Court stated its intention to do so and gave the parties time to
file objections.
Plaintiff does not offer a way around Savory nor does the
Court see one. Under Savory, Plaintiff’s § 1983 action has not
accrued because Plaintiff has not satisfied the favorable
termination requirement. This case must be dismissed
without prejudice. See Copus v. City of Edgerton, 96 F.3d
1038, 1039 (7th Cir. 1996)(dismissal of claim barred by Heck is
without prejudice).
Plaintiff objects on the grounds that Defendants have not filed
a motion for summary judgment based on Savory. However, a
court is permitted to raise Heck sua sponte. See Knowlin v.
Thompson, 207 F.3d 907 (7th Cir. 2000)(affirming sua sponte
dismissal on Heck grounds); Williams v. Maroney, 113 Fed.Appx.
709, 2004 WL 2348261 (7th Cir. 2004)(not reported in
Fed.Rptr.)(noting that district court should have sua sponte
dismissed claim as Heck barred); Bridgeforth v. City of Glenwood,
2020 WL 1922907 (N.D. Ill. 2020)(not reported in Fed. Rptr.)(raising
sua sponte whether claim was Heck-barred based on Savory).

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Plaintiff also expresses concern that, under the doctrines of
res judicata and collateral estoppel, dismissal will prevent him from
pursuing other actions arising from the same allegations. The
Court cannot opine on the viability of future actions. The Court
does note that a dismissal based on Heck is not based on the merits
of the underlying claim. Brzowski v. Sigler, 2020 WL 3489484 (N.D.
Ill.)(not reported in Fed. Rptr.)(“A dismissal based on Heck is not a
judgment on the merits. Rather, it means the suit ‘is premature and
must be dismissed without prejudice, because Heck holds that the
claim does not accrue until the underlying judgment has been
overturned.’”)(quoting Johnson v. Rogers, 944 F.3d 966, 968 (7th
Cir. 2019)).
Plaintiff also moves to consolidate this case with his habeas
action, 11-cv-3061, which was dismissed as moot on July 25, 2013.
However, there is no action in this case because of Savory, so there
is nothing to consolidate. The Court will rule on the pending
motions in 11-cv-3061 in a separate order in that case.
It is ordered that Plaintiff’s motion to consolidate is
DENIED. [122.]
This case is DISMISSED without prejudice.
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The clerk is directed to close this case and enter
judgment.
ENTERED: July 24, 2020
FOR THE COURT:
/s/ Richard Mills
RICHARD MILLS
UNITED STATES DISTRICT JUDGE

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