A new obstacle in civil rights litigation.

Without much public attention, the Supreme Court has created a substantial new obstacle for plaintiffs in many civil rights suits. In 1994, in Heck v. Humphrey, the Court held that to recover damages for an allegedly unconstitutional conviction or imprisonment, a plaintiff must first have the conviction or sentence reversed on appeal or expunged by executive pardon.(1)

In May 1997, in Edwards v. Balisok, the Court applied Heck and held that a prisoner cannot bring a suit challenging the procedures used in the revocation of good-time credits until he or she first has the credits restored.(2) In other words, the Supreme Court has created a new rule of preclusion in [sections] 1983 litigation, and the principle could have a significant effect for many civil rights plaintiffs.

Both cases involve the intersection of two of the most important and frequently invoked statutes. One law is 42 U.S.C. [sections] 1983, which creates the cause of action for most civil rights litigation against state and local governments and their officers. The other statute is 28 U.S.C. [sections] 2254, which authorizes federal courts to grant a writ of habeas corpus to those who are in custody in violation of the Constitution and federal laws.

There is a tension between these statutes because the habeas corpus law requires that individuals exhaust their state remedies before receiving federal habeas corpus relief,(3) while the Supreme Court repeatedly has held that there is no exhaustion requirement for [sections] 1983 litigation.(4) An inmate conceivably could bring a [sections] 1983 suit, without exhausting state remedies, to challenge the constitutionality of his or her conviction and circumvent the requirement imposed for habeas corpus relief.

The Supreme Court precluded this possibility in Preiser v. Rodriguez.(5) The Court ruled that habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of confinement and seeks immediate or speedier release. In other words, to preserve the exhaustion requirement in habeas corpus litigation, the Court held that prisoners cannot use [sections] 1983 as a tool when they are seeking release from custody.

In Heck, the Court significantly extended this principle and held that plaintiffs could not bring [sections] 1983 suits for money damages to recover for an allegedly unconstitutional conviction or sentence until that conviction or sentence was overturned. In this case, a state prison inmate, who had been convicted of voluntary manslaughter and was serving a 15-year sentence, brought a civil suit for money damages against the state prosecutor and police investigator for malicious prosecution.

The plaintiff alleged that the defendants, while "acting under color of state law, had engaged in an `unlawful, unreasonable, and arbitrary investigation' leading to petitioner's arrest; `knowingly destroyed' evidence `which was exculpatory in nature ...'; and caused `an illegal and unlawful voice identification procedure' to be used at petitioner's trial."(6)

Because the plaintiff sought money damages and not a release from custody, Preiser was inapplicable. However, the Supreme Court nonetheless held that the suit was barred and announced a new rule of preclusion in [sections] 1983 litigation.

The Court held that

in order to recover damages for allegedly

unconstitutional conviction or imprisonment,

or for other harm caused by actions whose

unlawfulness would render a conviction or

sentence invalid, a [sections] 1983 plaintiff must prove

that the conviction or sentence has been

reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal

authorized to make such determination, or

called into question by a federal court's

issuance of a writ of habeas corpus.(7)

Simply put, an individual convicted of a crime cannot bring a civil suit challenging the conviction until it is overturned.

In its recent Edwards decision, the Court extended Heck to prisoner litigation. Jerry Balisok is an inmate in a Washington prison serving a 20-year sentence for attempted murder. In 1993, while incarcerated, he was charged with violating the prison's disciplinary code by blackmailing another inmate. After a hearing, Balisok was found guilty of the rules infractions, and the sanctions included revocation of 30 days of good-time credits. He unsuccessfully appealed the finding of misconduct to the prison warden.

Balisok then filed a [sections] 1983 suit for money damages against the hearing officer, Gary Edwards, contending that due process had been violated. Balisok often served as a jailhouse lawyer and helped other inmates with their suits against the prison. He contended that in retaliation for this, Edwards refused to consider key evidence at the hearing.

Balisok maintained that he was told at the time of the hearing that the inmate-witnesses he wanted to testify had refused to provide statements or answer questions. Later, he discovered that three statements were in his file.

Although the hearing officer could preclude the statements from being used as evidence if they were not filed in a timely fashion, Balisok contended that they intentionally were not date-stamped. Balisok's amended complaint did not seek restoration of the good-time credits, but, rather, money damages for the alleged violation of his rights.

The Supreme Court unanimously held that Balisok's claim was not cognizable under [sections] 1983 until he first succeeded in having the good-time credits restored.(8) Balisok had argued that Heck was distinguishable, in part, because he was challenging the procedures followed and not the results of the hearing. In Heck, in contrast, the civil suit directly attacked the validity of the conviction.

The Court was unpersuaded by this distinction. Justice Antonin Scalia's majority opinion said that the argument was incorrect "since it disregards the possibility, clearly envisioned by Heck, that the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment."(9)

Scalia explained that "the principal procedural defect complained of by respondent would, if established, necessarily imply the invalidity of the deprivation of his good-time credits."(10) The Court concluded that the "claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the decision maker that necessarily imply the invalidity of the punishment imposed, is not cognizable under [sections] 1983."(11) In other words, a prison disciplinary proceeding revoking goodtime credits precludes a civil suit for money damages based on a claim that the proceeding denied due process.

Although unanimous, Edwards is a troubling ruling. Heck was based on a desire to prevent individuals from collaterally attacking their convictions in civil suits. The Court justified its holding in that case on the grounds that a key element in a civil suit for malicious prosecution "is termination of the prior criminal proceeding in favor of the accused."(12)

Although the Court did not use the language of issue preclusion, that really is what Heck is all about. The Court said that a key issue, the validity of the conviction, was litigated and resolved in the earlier court proceeding and thus was taken as established for the civil suit. This issue negated a basic element of the civil cause of action and thus precluded relief.

However, Edwards was not a case about issue preclusion at all. The issue of whether the prison disciplinary proceeding violated due process had not ever been litigated. Nor had there ever been the opportunity to do so. Furthermore, Balisok was not seeking to collaterally attack the revocation of the good-time credits, but instead wanted damages for procedural violations. If the latter implied fundamental unfairness of the prison hearing, it is an even stronger reason for allowing [sections] 1983 relief.

State and local officials are likely to try to use Heck and Edwards to preclude many [sections] 1983 claims. For example, there is now a split between the circuits as to whether Heck applies in suits for excessive force against police officers when brought by individuals who have been convicted.(13)

Logically, Heck would not seem to apply to such claims: Whether the police used excessive force is completely distinct from whether the defendant committed the crime. Yet Edwards shows that Heck will be taken as establishing a new rule of preclusion, and it is unclear how far the Court will extend it.

Notes

(1.) 512 U.S. 477 (1994).

(2.) No. 95-1352, 1997 WL 255341 (May 19, 1997).

(3.) The Supreme Court first articulated the exhaustion requirement in Ex parte Royall, 117 U.S. 241 (1886), and it was subsequently included in the habeas statute, [sections] 2254(b).

(4.) See, e.g., Patsy v. Board of Regents, 457 U.S. 496, 501 (1982).

(5.) 411 U.S. 475 (1973).

(6.) 512 U.S. 477, 479.

(7.) Id. at 486-87.

(8.) Justice Ruth Bader Ginsburg, joined by Justices David Souter and Stephen Breyer, wrote a short concurring opinion to emphasize that the Court's holding applies only to civil suits that "necessarily imply the invalidity of the punishment imposed." No. 95-1352 1997 WL 255341, at *6.

(9.) Id. at *3.

(10.) Id. at *4

(11.) Id. at *5.

(12.) 512 U.S. 477, 484.

(13.) Compare Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996) (applying Heck to preclude a suit for excessive force) with Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996).