Winston v. Davis

Filing 11

ORDER DISMISSING CASE without prejudice. This dismissal shall not count as one of Plaintiffs three allotted strikes under the provisions of 28 U.S.C. § 1915(g). Plaintiff is advised that his obligation to pay the filing fee for this action was incurred at the time the action was filed, thus the filing fee of $350 remains due and payable. The motion for leave to file an amended complaint (Doc. 9) is DENIED. Signed by Judge J. Phil Gilbert on 2/9/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ANDRE WINSTON, #N-73132,
Plaintiff,
vs.
RANDY DAVIS,
Defendant.

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CASE NO. 11-cv-1061-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Andre Winston, an inmate in Pinckneyville Correctional Center, brings this
action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff is
nearing the end of his thirty-seven year sentence for aggravated criminal sexual assault, armed
robbery, and armed violence. This case is now before the Court for a preliminary review of the
complaint pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any event, as
soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
28 U.S.C. § 1915A.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim upon which relief

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can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). Although the Court is obligated to accept factual allegations as
true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the complaint and supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A and shall dismiss this action.
The Complaint
Plaintiff filed his original complaint on December 2, 2011 (Doc. 1), invoking 42 U.S.C.
§ 1983, and challenging the revocation of good conduct credits following three disciplinary
reports issued to him, on March 27, March 30, and May 24, 1990. Each of these reports was
issued for Plaintiff’s failure to attend his assigned educational classes. Plaintiff claims that prior
to the issuance of these three reports, he had been placed in administrative segregation for six
months. Because he was in segregation, he argues that he could no longer be required to attend
the classes, and the disciplinary tickets should not have been issued (Doc. 1, p. 2).
On January 24, 2012, Plaintiff filed a motion for leave to file an amended complaint

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(Doc. 9) and tendered his proposed amended complaint. The amended complaint, which has not
been accepted for filing, is titled: “Amended complaint - alternate claim for habeas corpus.” In
it, Plaintiff requests the Court to order a speedier release or to correct his projected release date
by restoring the 45 days of good conduct credit which were revoked in 1990.
Discussion
Initially, Plaintiff’s motion to amend his complaint shall be denied, for the reasons to
follow. However, even if the motion were granted, it would not change the outcome of this
action.
It appears from the proposed amended complaint that Plaintiff wishes to add a claim for
habeas corpus relief to his existing action for relief under § 1983. This he cannot do. While a
plaintiff may amend a complaint once as a matter of right under Federal Rule of Civil Procedure
15(a)(1), the Court will not accept piecemeal amendments to a complaint. An amended
complaint supersedes and replaces the original complaint, rendering the original complaint void.
See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). See also
Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999) (“[W]hen a plaintiff files an amended
complaint, the new complaint supersedes all previous complaints and controls the case from that
point forward…a plaintiff’s new complaint wipes away prior pleadings”); Kelley v. Crosfield
Catalysts, 135 F.3d 1202, 1204 (7th Cir. 1998) (“It is well-established that an amended pleading
supersedes the original pleading; facts not incorporated into the amended pleading are considered
functus officio.”).
Thus, a plaintiff cannot use an amended complaint to tack on a new or alternate claim for
relief to the original complaint. Instead, he must re-plead both the original claim and any new or

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alternative claim in his proposed amended complaint. Because Plaintiff’s proposed amended
complaint seeks to add an alternate habeas claim to his previously filed § 1983 complaint, the
motion to amend shall be denied.
As to the merits of Plaintiff’s claim that his good conduct credits were improperly
revoked, a loss of good conduct credit does implicate a Fourteenth Amendment liberty interest
because such a loss potentially affects the length of Plaintiff’s sentence. See Wolff v. McDonnell,
418 U.S. 539, 557 (1974). However, a prisoner cannot seek damages for the loss of good
conduct credits, or the restoration of his good time, in a § 1983 action. Heck v. Humphrey, 512
U.S. 477, 483 (1994) (“Even a prisoner who has fully exhausted available state remedies has no
cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged,
invalidated, or impugned by the grant of a writ of habeas corpus.”). The Heck bar extends to
claims under 42 U.S.C. § 1983 that “necessarily imply the invalidity of the deprivation of [a
prisoner's] good-time credits.” Edwards v. Balisok, 520 U.S. 641, 646 (1997).
Habeas corpus is the exclusive method for challenging the revocation of good time
credits, because “good-time credits reduce the length of imprisonment, and habeas corpus is
available to challenge the duration as well as the fact of custody.” Waletzki v. Keohane, 13 F.3d
1079, 1080 (7th Cir. 1994) (citing Preiser v. Rodriguez, 411 U.S. 475, 490, 500 (1973)). See
also Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (habeas corpus is the proper remedy
when prisoner seeks a “quantum change in the level of custody” such as outright freedom or
parole). However, a federal habeas petition may only be commenced after Plaintiff has
exhausted his remedies through the Illinois state courts. See, e.g., Heck, 512 U.S. at 480-81.
Under this rule, even if Plaintiff’s proposed amended complaint seeking habeas relief were to be

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filed, it would then have to be dismissed for failure to exhaust state court remedies.
Turning again to the operative complaint (Doc. 1), “[i]f a prisoner who should have asked
for habeas corpus misconceives his remedy, brings a civil rights suit, and fails to exhaust his state
remedies, his suit must be dismissed.” Graham, 922 F.2d at 381-82. This is Plaintiff’s situation
– although he filed institutional grievances, there is no indication in his complaint that he has
ever initiated any action in the Illinois courts to seek restoration of his good conduct credits.
Because such an action, and subsequent exhaustion, is a pre-requisite for filing a federal habeas
petition, this case shall be dismissed so that Plaintiff may file an appropriate action in state court.
Nothing in this order shall be construed as an opinion as to the merits of Plaintiff’s claim.
The Illinois courts have recognized mandamus as an appropriate remedy to compel prison
officials to award sentence credit to a prisoner. See Turner-El v. West, 811 N.E.2d 728, 733 (Ill.
App. 2004) (citing Taylor v. Franzen, 417 N.E.2d 242, 247, aff'd on reh'g, 420 N.E.2d 1203 (Ill.
App. 1981)). The State of Illinois must first be afforded an opportunity, in a mandamus action
pursuant to 735 ILL. COMP. STAT . 5/14-101 et seq., to consider the merits of Plaintiff’s claim.
Accordingly, Plaintiff’s claim for restoration of his good conduct credit is dismissed without
prejudice to Plaintiff bringing this claim in a properly filed habeas corpus action, but only after
he has exhausted his state court remedies.
Pending Motions
The motion for leave to file an amended complaint (Doc. 9) is DENIED.
Disposition
IT IS HEREBY ORDERED that this action is DISMISSED without prejudice. This
dismissal shall not count as one of Plaintiff’s three allotted “strikes” under the provisions of 28
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U.S.C. § 1915(g).
Plaintiff is advised that his obligation to pay the filing fee for this action was incurred at
the time the action was filed, thus the filing fee of $350 remains due and payable. See 28 U.S.C.
§ 1915(b)(1); Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998).
The Clerk shall CLOSE THIS CASE.
IT IS SO ORDERED.
DATED: February 9, 2012

s/J. Phil Gilbert
United States District Judge

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