Whitfield v. Althoff et al

Filing 51

OPINION: Plaintiff's motion to supplement his response is granted 39 . Plaintiff's motion for leave to file a motion for reconsideration of the Court's 11/19/13 order dismissing certain defendants is granted 47 . However, the motion for reconsideration is denied for the reasons already stated in the Court's 11/19/13 order. Defendants' motions for summary judgment are granted 19 , 34 , 44 . This case is dismissed, without prejudice, as barred by Heck v. Humphrey, 512 U.S. 477 (1994). The clerk is directed to enter a judgment pursuant to Federal Rule of Civil Procedure 58. This case is closed, parties to bear their own costs. If Plaintiff wishes to appeal this dismissal, he must file a notice of appeal with this court within 30 days of the entry of judgment. (SEE WRITTEN OPINION) Entered by Judge Richard Mills on 1/7/2015. (GL, ilcd)

E-FILED

Wednesday, 07 January, 2015 09:33:42 AM
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:
Plaintiff Whitfield wants compensation for three allegedly false
disciplinary tickets he received while in custody in the Illinois
Department of Corrections. The tickets were dated 2002, 2003 and
2007. Plaintiff was released from prison in July, 2011. He filed
this suit two years later, under 42 U.S.C. § 1983. He cannot

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succeed. Heck v. Humphrey, 512 U.S. 477 (1994) trumps his
claims.1
ANALYSIS
The facts material to this Court’s decision are not disputed.
Plaintiff contends that he lost a total of 16 months2 of good conduct
credit as a result of three allegedly false disciplinary tickets,
purportedly issued in retaliation for his protected First Amendment
activities. He also alleges various procedural infirmities in the
disciplinary hearings, including the refusal to allow him to garner
and present exonerating evidence and witnesses, and the lack of
evidence to support the charges. The disciplinary tickets at issue
are dated January 13, 2002, September 18, 2003, and July 14,
2007, respectively.

Defendants Dallas, Howard, Jordan, and McBride filed a motion for leave to file a motion to
dismiss on March 7, 2014, which the Court converted to a motion for summary judgment.
Defendants Williams, Vincent, and Wilson filed their own motions for summary judgment after
they were served. Plaintiff objects to a ruling on the motions for summary judgment on the
grounds that Defendants have not filed an Answer. However, the Court allowed Defendants to
file the motion to dismiss, implicitly acknowledging that an Answer on the merits of Plaintiff’s
factual allegations would not be due until after a ruling on the issues raised in the motion. A
motion to dismiss based on Heck may be properly brought under Fed. R. Civ. P. 12(b)(6) before
an Answer is filed. See Liska v. Dart, --- F.Supp.2d ---, 2014 WL 3704635 (N.D. Ill)(Defendants’
waived Heck argument when they failed to raise the argument in their motion to dismiss). The
Court converted the motion to one for summary judgment because the motion to dismiss
arguably relied on facts outside the pleadings, even though those facts are subject to judicial
notice.
2 Plaintiff’s affidavit states in one paragraph that he lost 13 months (d/e 38, p. 18, para. 5), but
the more consistently used number is 16.
1

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During Plaintiff’s incarceration, he tried to pursue § 1983
claims on some of the disciplinary reports at issue here, but the
claims were dismissed as procedurally improper challenges to the
loss of good time. See Whitfield v. Walker, et al., 04-CV-3136 (C.D.
Ill.)(12/2/04 order). Plaintiff also initiated a federal habeas action
in this Court in February of 2011, challenging the disciplinary
reports, but the habeas action was dismissed as moot when Plaintiff
was released the following July. Whitfield v. Jackson, 11-CV-3061
(C.D. Ill.)(7/25/13 Order). With his federal habeas corpus action
moot, Plaintiff now relies on 42 U.S.C. § 1983 to remedy the alleged
constitutional violations.
The Court allowed Plaintiff’s claims in this case to proceed but
noted that the claims might be barred by the Supreme Court case of
Heck v. Humphrey, 512 U.S. 477 (7th Cir. 1994). (11/15/13 Order,
pp. 9-11.) Heck and its progeny hold that an inmate cannot pursue
a § 1983 action which in effect challenges 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. Edwards v. Balisok, 520 U.S. 641, 648 (1997)(claims which
"necessarily imply the invalidity” of the loss of good time are not
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cognizable under 42 U.S.C. § 1983 until the prison disciplinary
decision has otherwise been invalidated, for example by
expungement, a state court order, or a federal writ of habeas
corpus). “Heck prevents prisoners from making an end-run around
the need to challenge the validity or duration of their convictions
using the vehicle of habeas corpus, rather than through an action
under 42 U.S.C. § 1983 or Bivens.” Jogi v. Voges, 480 F.3d 822,
836 (7th Cir. 2007)(citing Wilkinson v. Dotson, 544 U.S. 74 (2005)).
The federal habeas route is no longer available to Plaintiff
because he is no longer in prison. However, that does not mean
this case can proceed. In Burd v. Sessler, 702 F.3d 429, 436 (7th
Cir. 2012), the Seventh Circuit held that Heck also applies to former
prisoners if the former prisoner “could have pursued collateral relief
[in prison] but failed to do so in a timely manner.” Burd v. Sessler,
702 F.3d 429, 436 (7th Cir. 2012), cert. denied 133 S.Ct. 2808
(2013). Burd held that a prisoner who "ignore[s] his opportunity to
seek collateral relief while incarcerated to skirt the Heck bar simply
by waiting to bring a § 1983 claim until habeas is no longer
available undermines Heck . . . ." Id. The plaintiff in Burd did not
file a federal habeas action during his incarceration like Plaintiff
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did, but that distinction makes no difference on these facts. Plaintiff
cannot avoid the Heck bar by filing a doomed habeas action in
federal court a few months before release from prison. That would
allow him to accomplish what Burd proscribes: ignoring
opportunities to pursue collateral relief while incarcerated.
The question is, did Plaintiff pursue the legal avenues
available to him while he was incarcerated? If he did, then Heck
does not bar this action. Burd v. Sessler, 702 F.3d at 435 (“[W]here
a plaintiff cannot obtain collateral relief to satisfy Heck’s favorable
termination requirement, his action may proceed under § 1983
without running afoul of Heck.”) On the other hand, if Plaintiff did
not avail himself of those opportunities, then Heck does bar this
action under the reasoning of Burd.
In Illinois, a prisoner can challenge the revocation of good time
by filing a complaint for mandamus in the state circuit court. The
Seventh Circuit recognized this in McAtee v. Cowan, 250 F.3d 506,
508 (7th Cir. 2001):
State prisoners challenging the deprivation of good-time
credits by way of a habeas corpus petition must exhaust
adequate and available state remedies before proceeding
to federal court. . . . Like their Wisconsin neighbors,
Illinois inmates seeking restoration of good-time credits
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lost due to constitutionally infirm disciplinary hearings
have a judicial remedy: they can file a complaint for an
order of mandamus from an Illinois circuit court. See
Johnson v. McGinnis, 734 F.2d 1193, 1198-99 (7th
Cir.1984). If dissatisfied with the result, the inmate must
invoke one complete round of the normal appellate
process, including seeking discretionary review before the
state supreme court.
Generally, in Illinois a mandamus petition challenging prison
disciplinary proceedings should be filed within six months after the
internal administrative appeals are concluded. Williams v. IDOC,
2011 WL 10481473 (Ill. App., 4th Dist)(not reported in
N.E.2d)(Plaintiff’s 2009 state court challenges to 1998 and 2003
disciplinary proceedings were barred by laches); Coleman v. Davis,
2013 WL 1154512 (N.D. Ill. 2013)(not reported in Federal
Reporter)(“[U]nder the doctrine of laches, the filing of a mandamus
complaint more than six months after the conclusion of prison
disciplinary proceedings is generally improper.”)(citing Washington
v. Walker, 391 Ill.App.3d 459 (4th Dist. 2009). 3
Plaintiff did not follow these steps for any of the three
disciplinary tickets at issue. The steps that Plaintiff did take are set
The one year federal habeas deadline in 28 U.S.C. § 2244(d)(1) does not apply to prison
discipline challenges. Cox v. McBride, 279 F.3d 492, 493 (7th Cir. 2002). However, the doctrine
of laches would apply—an inmate could not unreasonably delay filing the federal habeas
action, causing prejudice to the respondent. Id.
3

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forth in the exhibits he filed in his federal habeas corpus case
before this Court and are also a matter of public record appropriate
for judicial notice. Whitfield v. Jackson, 11-CV-3061 (C.D.
Ill.)(exhibits filed at docket entry 3-1, pp. 30-40; docket entry 7, pp.
13-30; docket entry 7-1, pp. 1-30; docket entry 7-2, pp. 1-24;
docket entry 7-3, pp. 29-30; docket entry 7-4, pp. 1-15, 23-30;
docket entry 7-5, pp. 1-14; docket entry 7-6, pp. 1-16; docket entry
7-7, pp. 1-30; docket entry 7-8, pp. 1-28);4 see also Whitfield v.
IDOC, 04-MR-34 (Livingston County)(Plaintiff’s mandamus action
challenging the September 18, 2003, disciplinary report); Whitfield
v. Gaetz, 09-MR-80 (Randolph County)(Plaintiff’s state habeas
corpus action challenging all three disciplinary reports at issue in
this case); 520 South Michigan Ave. Assoc., Ltd. v. Shannon, 549
F.3d 1119 n. 14 (7th Cir. 2008)(court may take judicial notice of
documents in public record).
These documents show that, in March of 2004, Plaintiff filed a
complaint for mandamus in the Livingston County Circuit Court
challenging the September 18, 2003 disciplinary report and another
disciplinary report not at issue here. Whitfield v. IDOC, 04-MR-34.
4

Some of these documents are duplicates.

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Plaintiff appealed the dismissal of that complaint to the Illinois
Appellate Court, which affirmed the dismissal. Whitfield v. IDOC, 404-0597 (Ill. App., 4th Dist.); 11-CV-3061, d/e 7-4, pp. 1-15. In his
habeas action before this Court, Plaintiff did not dispute
Respondent’s contention that Plaintiff did not file a petition for leave
to appeal to the Illinois Supreme Court, and there is no record of an
appeal to the Illinois Supreme Court. (11-CV-3061, Resp. Answer,
d/e 12, p. 5, para. 7.); Rodriguez v. Scillia, 193 F.3d 913, 917 (7th
Cir. 1999)(procedural default occurs in federal habeas action if no
petition for discretionary review by highest state court is filed).
Plaintiff attempted another state court challenge in August of
2009, when he filed a complaint for habeas relief in Randolph
County Circuit Court, regarding all three disciplinary reports at
issue here. Whitfield v. Gaetz, 09-MR-80; 11-CV-3061, d/e 7, p. 14.
The Randolph County Circuit Court dismissed Plaintiff’s habeas
action with prejudice and denied Plaintiff’s motion to convert his
complaint into a complaint for mandamus relief. Plaintiff appealed
to the Illinois Appellate Court, but the appeal was dismissed
because he did not have the money to provide the record on appeal.
(11-3061, d/e 7-7, p. 15; d/e 12, para. 9.) Plaintiff filed a petition
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for leave to appeal to the Illinois Supreme Court, which was denied
in September 2010. Whitfield v. Gaetz, 938 N.E.2d 531 (Ill.
2010)(Table).
Neither of these attempts was sufficient to exhaust Plaintiff’s
state court remedies before he filed a federal habeas action.
Plaintiff did not appeal his 2004 attempt to the Illinois Supreme
Court, and Plaintiff’s 2009 attempt was procedurally improper.
Plaintiff’s 2009 attempt was procedurally improper because a state
habeas action is available only to secure an inmate’s immediate
release. Faircloth v. Sternes, 367 Ill.App.3d 123 (2d Dist.
2006)(“sole remedy or relief authorized by a writ of habeas corpus is
the prisoner’s immediate release”); 735 ILCS 5/10-101 et seq.
Plaintiff acknowledges that he was not entitled to immediate release
when he filed his state habeas action (d/e 38, p. 5), but he asserts
that the state court should have converted his complaint to a
complaint for mandamus or allowed him to replead. See 735 ILCS
5/10-121 (permitting court to allow amendment where wrong
remedy sought). However, the state court’s denial of Plaintiff’s
request means only that Plaintiff’s procedural error was not excused
by the state court. Mandamus remained an available remedy. See,
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e.g., Crump v. Lane, 807 F.2d 1394 (7th Cir. 1986)(Illinois Supreme
Court’s denial of original writ of mandamus regarding prison
discipline did not exhaust state court remedies because the plaintiff
could have refiled the mandamus action in state circuit court).
In sum, Plaintiff ignored his chance to pursue collateral relief
while in prison by not exhausting his state court remedies. Plaintiff
could have timely filed a mandamus complaint in state circuit court
to challenge each disciplinary report and then exhausted his state
court appeals before filing a federal habeas petition. He did not.
His filing of a federal habeas petition five months before his release
does not change that fact. Had this Court had sufficient time to
rule on Plaintiff’s habeas corpus petition before Plaintiff was
released, the Court would have dismissed it for Plaintiff’s failure to
exhaust state court remedies.
To allow Plaintiff to proceed in this case would allow him, and
other former inmates, to “skirt the Heck bar” through half-hearted
attempts at state court exhaustion during their incarceration,
followed by a federal habeas action filed shortly before release. And
a smart strategy that would be: a state court ruling on the merits

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could be avoided in favor of a federal claim for damages after
release.
CONCLUSION
Federal challenges to the length of a criminal sentence,
including the revocation of good time, must proceed as a federal
habeas action, not an action for damages under 42 U.S.C. § 1983.
An exception to this rule is when the federal habeas route is not
available during an inmate’s confinement. Here, the federal habeas
route was available to Plaintiff during his confinement, but he failed
to properly pursue it by failing to exhaust his state court remedies.
Filing a federal habeas petition a few months before release does
not change that fact. Accordingly, this case is dismissed, without
prejudice, as barred by Heck v. Humphrey, 512 U.S. 477 (1994).5
The Court need not address Defendants’ res judicata arguments.6
IT IS ORDERED:
1) Plaintiff’s motion to supplement his response is granted
(39). The Court has considered all of Plaintiff’ responses.

5 A dismissal based on Heck must be without prejudice, Polzin v. Gage, 636 F.3d 834, 839 (7th
Cir. 2011), though the Court acknowledges that the dismissal is effectively with prejudice since
Plaintiff’s opportunities for pursuing collateral relief are no longer available.
6 The Court notes, however, that the only state court ruling on the merits regarded Plaintiff’s
mandamus action, which Defendants do not address.

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2) Plaintiff’s motion for leave to file a motion for
reconsideration of the Court’s 11/19/13 order dismissing
certain defendants is granted (47). The clerk is directed to
separately docket the motion for reconsideration. However,
the motion for reconsideration is denied for the reasons
already stated in the Court’s 11/19/13 order. Additionally,
reinstating the dismissed Defendants would be futile
because Plaintiff’s claims are barred by Heck.
3) Defendants’ motions for summary judgment are granted
(19, 34, 44).
4) This case is dismissed, without prejudice, as barred by
Heck v. Humphrey, 512 U.S. 477 (1994).
5) The clerk is directed to enter a judgment pursuant to
Federal Rule of Civil Procedure 58.
6) This case is closed, parties to bear their own costs.
7) If Plaintiff wishes to appeal this dismissal, he must file a
notice of appeal with this court within 30 days of the entry
of judgment. Fed. R. App. P. 4(a). A motion for leave to
appeal in forma pauperis should set forth the issues
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Plaintiff plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C).
ENTERED: January 7, 2015
FOR THE COURT:
s/Richard Mills
RICHARD MILLS
UNITED STATES DISTRICT JUDGE

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