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Pro Se Tips and Tactics

The Supreme Court recently decided
another in a series of cases about when prisoners can sue directly under 42 U.S.C. § 1983, versus when they must first employ habeas corpus proceedings, to challenge actions by prison officials. The difference is very important because if a prisoner must follow the habeas route, then she or he must go first to state court through any habeas proceedings available there and if unsuccessful in state court file a federal habeas corpus action. Then, if the prisoner has been able to get the prison officials' actions overturned in the state or federal habeas proceeding, he or she can then file a § 1983 action for damages. By contrast, in cases where a prisoner is not required to pursue the habeas route, the prisoner can start in federal court with the § 1983 lawsuit, saving lots of time and trouble.

The general rule regarding in-prison incidents, such as challenges to disciplinary proceedings, is that if the challenge involves length of confinement in any way (such as impact on good time credits), a prisoner must first get the underlying charge overturned in a habeas proceeding before trying to get damages in a § 1983 action. Edwards v. Balisok, 520 U.S. 641 (1997). For example, if I am convicted in a disciplinary hearing and one consequence is that I may lose good time, I must go through state court and then (if I lose in the state court) federal court habeas proceedings, trying to get the courts to say that the charge was laid on me without any evidence to support it, or in some other unconstitutional way. Only then, and only if I win in the habeas round, can I sue under § 1983 for damages for the same incident.

In the most recent case, Muhammad v. Close, 124 S.Ct. 1303 (2004), the Supreme Court in a 9-0 "per curiam" opinion clearly held that where good time credits are not in any way involved, a prisoner may proceed directly with a § 1983 suit. Muhammad was charged by Close with "threatening behavior," a charge that required that Muhammad go to segregation pending the disciplinary hearing. At the hearing, he was acquitted of "threatening behavior," but found guilty of the lesser charge of "insolence." If "insolence" had been the original charge, Muhammad would not have had to endure pre-hearing segregation.

Muhammad sued under § 1983 for damages, claiming that Close had charged him with "threatening behavior" in retaliation for lawsuits and grievances Muhammad had filed against Close. At some point, Muhammad amended his complaint to remove any claim that he contested the "insolence" conviction or discipline for that charge. Muhammad did not challenge this conviction nor did he ask for expungement of it from his record. Instead, he claimed only that he should be paid for pain and suffering due to the pre-hearing detention he suffered because Close "overcharged" Muhammad with the infraction "threatening behavior."

The Supreme Court held that in these circumstances, Muhammad did not have to seek habeas relief before proceeding under § 1983. The pre-hearing detention had no apparent affect on good time, and there was nothing else to suggest that length of confinement was involved. Thus the Edwards "habeas first" rule did not apply, and the § 1983 suit could proceed.

If you are thinking about mounting a challenge to a disciplinary proceeding, the Muhammad decision will only help you if your challenge does not in any way involve the length of your criminal sentence. If you are challenging a disciplinary finding and if overturning that finding could affect the time you spend in prison, you will have to go the longer habeas route before trying to obtain damages in a § 1983 lawsuit.

However, it is important to be clear about what length of time we are talking about. The Edwards rule applies to the length of your criminal sentence, your actual time in prison, not the length of the in-prison disciplinary confinement. In Muhammad, the Supreme Court made clear that it had never held that habeas rules apply to the length of in-prison disciplinary confinement as such, or to other incidents that are conditions of confinement not involving length of imprisonment. 124 S.Ct. at 1305, footnote 1. A helpful discussion of this principle and how it applies in various situations is in Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999).

There is some disagreement in the lower courts about this, but the Supreme Court has never required "habeas first" unless length of actual prison confinement is involved. The Supreme Court said this again strongly in an even more recent case, Nelson v. Campbell (May 24, 2004)(citation to Supreme Court Reporter unavailable as of this writing). In Nelson, the Court held that a prisoner condemned to death could challenge directly in a § 1983 action the method by which the state proposed to perform lethal injection. He did not have to pursue habeas because this was not a challenge to the sentence of death itself.

But you should recognize the dilemma. If, under state law, the overturning or expungement of a disciplinary sanction will restore lost good time credits, or even if it will just improve your chances of gaining good time credits, the Edwards "habeas first" rule will apply. So, unless either there is no issue of good time credits, or you are sure you only want to challenge conditions without involving any good time issues, you will be stuck with habeas.

There is one possible exception to this, and that is when habeas is just not an available remedy. For example, if you are released from prison before you can get your habeas action going, you may not be able to pursue habeas because habeas is a challenge to custody. The Supreme Court has not yet held that a § 1983 action could be filed immediately in such a situation, although there have been strong hints. See the citations in footnote 2 of Muhammad (124 S.Ct. at 1305) and Ramirez v. Galaza, 334 F.3d 850, 859 footnote 7 (9th Cir. 2003). You should be aware of this argument if you are released or otherwise are blocked from trying to get a habeas-type remedy in your case.

Finally, note that the Edwards "habeas first" rule applies only to suits for damages regarding things that have happened in the past. You may be able to seek an injunction under § 1983 for ongoing unconstitutional actions, as Edwards itself makes clear. Balisok, the prisoner in the Edwards case, claimed that, in addition to declaratory relief and damages, the federal court should fix the problem that caused the illegality of the disciplinary proceeding in his case. The Supreme Court said that, "Ordinarily, a prayer for such prospective [injunctive] relief will not `necessarily imply' the invalidity of a previous loss of good time credits, and so may properly be brought under §1983." Edwards, 520 U.S. at 648.

The bottom line is that while Muhammad is a victory for prisoners who make no challenge involving length of sentence, it does not help prisoners whose disciplinary convictions affect in any way the time they will spend in prison. If you want to get your good time (or your eligibility for good time) back, you very likely will have to proceed through the long habeas route, get the disciplinary proceeding held unconstitutional, and then later sue for damages under § 1983.

This is my last Pro Se Tips and Tactics column for PLN. I have agreed to be the Director of my legal services program, Columbia Legal Services, as it moves in some new directions as a smaller and more targeted organization. So I just won't have the time to keep up with prison law as well as I would like. I understand that Dan Manville will take over the column. Dan will do a great job, and will, I'm sure, improve on whatever I've managed to do.

I have very much enjoyed doing the column for what Paul tells me is eight years. It has allowed me to live out one of my values, which is that professionals should give away as much information as they can so that people can help themselves. It is always a little scary to write generally about the law, because the outcome of cases so often turns on the facts, on exactly what happened in your particular case. But I have tried to give prisoners at least a framework within which they can approach their own cases. I hope what I've written has helped some people. Thanks for reading my stuff. g

John Midgley is the director of Columbia Legal Services in Seattle, Washington.

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Related legal case

Muhammad v. Close

Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32 (U.S. 02/25/2004)


[2] No. 02-9065

[3] 540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32, 72 USLW 4216, 2004 Daily Journal D.A.R. 2399, 4 Cal. Daily Op. Serv. 1582

[4] February 25, 2004


[6] On writ of Certiorari To The United States Court Of Appeals For The Sixth Circuit

[7] Corinne Beckwith, by appointment of the Court, 539 U. S. ___, argued the cause for petitioner. With her on the brief were James W. Klein, Samia Fam, and Giovanna Shay.

[8] Thomas L. Casey, Solicitor General of Michigan, argued the cause for respondent. With him on the briefs were Michael A. Cox, Attorney General, and Linda M. Olivieri and Kevin Himebaugh.

[9] Alphonse A. Gerhardstein filed a brief for the Prison Reform Advocacy Center as amicus curiae urging reversal.

[10] Per curiam.

[11] I.

[12] Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U. S. C. §2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. §1979, as amended, 42 U. S. C. §1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus, Preiser v. Rodriguez, 411 U. S. 475, 500 (1973); requests for relief turning on circumstances of confinement may be presented in a §1983 action. Some cases are hybrids, with a prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not only support a claim for recompense, but imply the invalidity either of an underlying conviction or of a particular ground for denying release short of serving the maximum term of confinement. In Heck v. Humphrey, 512 U. S. 477 (1994), we held that where success in a prisoner's §1983 damages action would implicitly question the validity of conviction or duration of sentence, the litigant must first achieve favorable termination of his available state, or federal habeas, opportunities to challenge the underlying conviction or sentence. Accordingly, in Edwards v. Balisok, 520 U. S. 641 (1997), we applied Heck in the circumstances of a §1983 action claiming damages and equitable relief for a procedural defect in a prison's administrative process, where the administrative action taken against the plaintiff could affect credits toward release based on good-time served. In each instance, conditioning the right to bring a §1983 action on a favorable result in state litigation or federal habeas served the practical objective of preserving limitations on the availability of habeas remedies. Federal petitions for habeas corpus may be granted only after other avenues of relief have been exhausted. 28 U. S. C. §2254(b)(1)(A). See Rose v. Lundy, 455 U. S. 509 (1982). Prisoners suing under §1983, in contrast, generally face a substantially lower gate, even with the requirement of the Prison Litigation Reform Act of 1995 that administrative opportunities be exhausted first. 42 U. S. C. §1997e(a).

[13] Heck's requirement to resort to state litigation and federal habeas before §1983 is not, however, implicated by a prisoner's challenge that threatens no consequence for his conviction or the duration of his sentence.*fn1 There is no need to preserve the habeas exhaustion rule and no impediment under Heck in such a case, of which this is an example.*fn2

[14] II.

[15] A.

[16] This suit grew out of a confrontation between petitioner, Muhammad, an inmate, and the respondent Michigan prison official, Close. App. 70. According to his amended complaint, Muhammad was eating breakfast when he saw Close "staring at him through the hallway window." Id., at 71. Eventually Muhammad stared back, provoking Close to assume "a fighting stance" and "com[e] into the dining area at a fast pace with his face contorted." Ibid. Muhammad stood up and faced him, and when the two were within a foot of one another, Close asked, "whats [sic] up," all the while "staring angerly [sic]." In the aftermath of the confrontation, Muhammad was handcuffed, taken to a detention cell, and charged with violating the prison rule prohibiting "Threatening Behavior."*fn3 Under the rules, special detention was required prior to a hearing on the charge, which occurred six days later. Muhammad was acquitted of threatening behavior, but found guilty of the lesser infraction of insolence, for which prehearing detention would not have been mandatory.*fn4 Ibid. Muhammad was required to serve an additional 7 days of detention and deprived of privileges for 30 days as penalties for insolence. Ibid.

[17] Muhammad then brought this §1983 action, alleging that Close had charged him with threatening behavior (and subjected him to mandatory prehearing lockup) in retaliation for prior lawsuits and grievance proceedings against Close. Id., at 72. He amended his original complaint after obtaining counsel, and neither in his amended complaint nor at any subsequent juncture did Muhammad challenge his conviction for insolence, or the subsequent disciplinary action. See Brief for Petitioner 42. The amended complaint sought no expungement of the misconduct finding, and in fact Muhammad conceded that the insolence determination was justified. The only relief sought was $10,000 in compensatory and punitive damages "for the physical, mental, and emotional injuries sustained" during the six days of prehearing detention mandated by the charge of threatening behavior attributable to Close's retaliatory motive. App. 72.

[18] Following discovery, the Magistrate Judge recommended summary judgment for Close on the ground that Muhammad had failed to come forward with sufficient evidence of retaliation to raise a genuine issue of material fact as to that element. Id., at 63. The District Court adopted the recommendation. Id., at 70.

[19] B.

[20] Muhammad then appealed to the United States Court of Appeals for the Sixth Circuit, which, by an opinion designated not for publication, affirmed the summary judgment for Close, though not on the basis recommended by the Magistrate Judge and adopted by the District Court. 47 Fed. Appx. 738 (2002). Instead of considering the conclusion that Muhammad had produced inadequate evidence of retaliation, a ground that would have been dispositive if sustained, the Court of Appeals held the action barred by Heck because Muhammad had sought, among other relief, the expungement of the misconduct charge from the prison record. Relying upon Circuit precedent, see Huey v. Stine, 230 F. 3d 226 (2000), the Court of Appeals held that an action under §1983 to expunge his misconduct charge and for other relief occasioned by the misconduct proceedings could be brought only after satisfying Heck's favorable termination requirement. The Circuit thus maintained a split on the applicability of Heck to prison disciplinary proceedings in the absence of any implication going to the fact or duration of underlying sentence, four Circuits having taken the contrary view. See Leamer v. Fauver, 288 F. 3d 532, 542-544 (CA3 2002); DeWalt v. Carter, 224 F. 3d 607, 613 (CA7 2000); Jenkins v. Haubert, 179 F. 3d 19, 27 (CA2 1999); Brown v. Plaut, 131 F. 3d 163, 167-169 (CADC 1997). We granted certiorari to resolve the conflict, 539 U. S. 925 (2003), and now reverse.

[21] III.

[22] The decision of the Court of Appeals was flawed as a matter of fact and as a matter of law. Its factual error was the assumption that Muhammad sought to expunge the misconduct charge from his prison record. The court simply overlooked the amended complaint that sought no such relief.

[23] The factual error was compounded by following the mistaken view expressed in Circuit precedent that Heck applies categorically to all suits challenging prison disciplinary proceedings. But these administrative determinations do not as such raise any implication about the validity of the underlying conviction, and although they may affect the duration of time to be served (by bearing on the award or revocation of good-time credits) that is not necessarily so. The effect of disciplinary proceedings on good-time credits is a matter of state law or regulation, and in this case, the Magistrate expressly found or assumed that no good-time credits were eliminated by the prehearing action Muhammad called in question. His §1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State's calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck's favorable termination requirement was inapplicable.

[24] IV.

[25] Close tries to salvage the appellate court's judgment by arguing for the first time here that Heck is squarely on point because, if the §1983 suit succeeded, Muhammad would be entitled to restoration of some good-time credits with the result of less time to be spent in prison. Brief for Respondent 17-18. But this eleventh-hour contention was waived. The Magistrate's report stated that good-time credits were not affected by the allegedly retaliatory overcharge of threatening behavior and the consequential prehearing detention Muhammad complained of, and Close had every opportunity to challenge the Magistrate's position in the District Court and in the Court of Appeals. Having failed to raise the claim when its legal and factual premises could have been litigated, Close cannot raise it now. See Auer v. Robbins, 519 U. S. 452, 464 (1997).

[26] The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for consideration of summary judgment on the ground adopted by the District Court, and for any further proceedings consistent with this opinion.

[27] It is so ordered.


Opinion Footnotes


[28] *fn1 The assumption is that the incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules. This Court has never followed the speculation in Preiser v. Rodriguez, 411 U. S. 475, 499 (1973), that such a prisoner subject to "additional and unconstitutional restraint" might have a habeas claim independent of §1983, and the contention is not raised by the State here.

[29] *fn2 Members of the Court have expressed the view that unavailability of habeas for other reasons may also dispense with the Heck requirement. See 512 U. S., at 491 (Souter, J., concurring in judgment); Spencer v. Kemna, 523 U. S. 1, 21-22 (1998) (Ginsburg, J., concurring). This case is no occasion to settle the issue.

[30] *fn3 The Michigan Department of Corrections Policy Directive, No. 03.03.105 (June 6, 1994) (Directive) defines "Threatening Behavior" as "Words, actions or other behavior which expresses a[n] intent to injure or physically abuse another person." App. 40.

[31] *fn4 The Directive defines "Insolence" as "Words, actions, or other behavior which is intended to harass, or cause alarm in an employee." Id., at 44.