Richard CARR, Plaintiff-Appellant, v. Michael O‘LEARY and Michael P. Lane, Defendants-Appellees.
No. 96-3885.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 15, 1998. Decided Feb. 4, 1999.
167 F.3d 1124
Erik G. Light, Asst. Atty. Gen. (argued), Chicago, IL, Susan F. Rhodes (on the brief), Attorney Registration & Disciplinary Commission, Illinois Supreme Court, Chicago, IL, for Defendants-Appellees.
Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.
POSNER, Chief Judge.
A middle-aged inmate of the minimum security unit (the “honor farm“) of Illinois’ prison at Stateville with only 96 days left before he was due to be released, Richard Carr had the misfortune to be caught in a prison riot. Prisoners angered by a lockdown following the murder of a guard took over the second floor, the residential floor, of Carr‘s unit and told the other prisoners that anyone who went downstairs for the required morning count would have his head split open. The rioters were young, tough gang members, and none of the inmates in the second floor of the minimum security unit attempted to defy them. Carr was not a gang member, and he had had nothing to do either with the murder (which had occurred in the maximum security unit of the prison) or with the takeover of his floor. And because the guards had locked the door of the only exit from the second floor to the first (where the count was conducted) to prevent the riot from spilling over to the first floor, he could not have gotten downstairs even if he had run the gauntlet of the gang members guarding the exit from the inside. Later in the morning, moreover, when a guard opened the door to the second floor to take a look around inside, Carr asked him what he should do and the guard told him to go back to his room and wait. Eventually the guards took over the second floor and hustled all 85 of its occupants over to the maximum security unit.
At disciplinary hearings held shortly after the incident, every resident of the second floor who had missed the count, hostage and gang member alike, was found guilty of the infraction of missing the count and received identical punishments, which included the loss of six months of good-time credits. After exhausting his administrative remedies, Carr filed suit under
This case was seven years old, and, more to the point, Heck was almost two years old and summary judgment on liability had been granted for the plaintiff, when the state woke up and sought dismissal on the authority оf Miller. Carr‘s court-appointed lawyers had been working on this case, with little prospect of substantial remuneration, since 1990. Naturally they cried “waiver.” The district judge in her opinion granting the motion to dismiss did not discuss the issue of waiver, although she may have been alluding to it when she said that Carr‘s original complaint, filed pro se, may not have alerted the state to the full scope of his contentions. That may be. But it is unrelated to the issue of waiver. It was clear from the start that one of Carr‘s claims (others have fallen by the wayside) was a denial of due process, and it was clear when Heck was decided by the Supreme Court that a possible, and indeed rather obvious, defense in a case such as this
The ruling granting partial summary judgment in favor of Carr was the law of the case. The district judge therefore could not change it without a good reason. Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 152 F.3d 588, 591 (7th Cir.1998). In light of Miller it was apparent that Carr did not have a meritorious case, and that was obviously a good reason for the district judge‘s changing her previous ruling. Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). But a party‘s unreasonable delay in advancing a good ground for a change in a previous ruling is normally a compelling ground for deeming even a good ground waived. United States v. Connell, 6 F.3d 27, 31 (1st Cir.1993); cf. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995); United States v. Palmer, 122 F.3d 215, 220-21 (5th Cir.1997). Thus, even when the leeways built into the law of the case doctrine would allow a district judge to change her prior ruling if the party urging the change had preserved the ground for the change, if he has not done so the judge may be barred by the party‘s waiver. The doctrine of waiver would have little bite otherwise. Suppose a defendant fails to plead the statute of limitations in timely fashion and as a result the district judge holds that the suit is not time-barred; for normally the failure to plead a defense in timely fashion is a waiver. E.g., Sharpe v. Jefferson Distributing Co., 148 F.3d 676, 679-80 (7th Cir.1998); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1122 (7th Cir.1998); Anderson v. Flexel, Inc., 47 F.3d 243, 247 (7th Cir.1995); Harris v. Secretary, U.S. Dept. of Veterans Affairs, 126 F.3d 339, 343 (D.C.Cir.1997); cf. Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Later the defendant discovers the statute of limitations and urges the district judge to change her ruling, pointing out that under the law оf the case doctrine a ruling can be changed if shown to be erroneous. If the judge were free to accept this argument, it would be tantamount to ignoring waiver.
The State of Illinois had been remarkably careless in failing to assert a Heck defense until Miller was decided, since Miller was such a natural extension or application of Heck and to a matter central to the state attorney general‘s responsibilities, hence a matter on which his office could be expected to be au courant; the state‘s argument in its brief in the present case that the decision in Miller was unforeseeable is frivolous. Cf. Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). By its delay the state imposed unnecessary expenses on Carr‘s lawyers and on the state‘s taxpayers who pay the salaries of the attorney general and his staff, and an unnecessary burden on the federal courts. Worse still, thе state courted disaster by waiving a dispositive defense—a familiar failing of the Illinois attorney general‘s office, Gonzalez v. DeTella, 127 F.3d 619, 622 (7th Cir.1997); Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir.1996); Holland v. McGinnis, 963 F.2d 1044, 1057-58 (7th Cir.1992); Rivera v. Director, Department of Corrections, 915 F.2d 280, 283 (7th Cir.1990); Wilson v. O‘Leary, 895 F.2d 378, 384 (7th Cir.1990), and one distinctly detrimental to the interests of the people of Illinois.
It is no answer that there was no waiver because Miller had not come down and it was therefore merely likely, not certain, that Heck applied to prison disciplinary proceedings. The failure to plead the Heck defеnse in timely fashion was a waiver; the question is whether there was some ground for relieving the defendants from the consequences of their waiver. U.S. National Bank v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 446-48, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993); Baltimore & Ohio Chicago Terminal R.R. v. Wisconsin Central Ltd., 154 F.3d 404, 408-09 (7th Cir.1998); Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746, 749-50 (7th Cir.1993); National Ass‘n of Social Workers v. Harwood, supra, 69 F.3d at 627-29. Failure to plead a defense that had not yet been created, and could not have been foreseen—a critical, and here highly relеvant, qualification, as Bousley v. United States, supra, 523 U.S. at —, 118 S.Ct. at 1611, suggests at the time for pleading defenses would be a good ground for relieving the defendant from
The district judge could, nevertheless, have forgiven the state‘s waiver of its Heck-Miller defense in accordance with the principle that treats the waiver of defenses based on grounds rooted in considerations of state sovereignty less harshly than other waivers. See Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); Sullivan v. Conway, 157 F.3d 1092, 1095 (7th Cir.1998), and cases cited there; Graham v. Johnson, 94 F.3d 958, 970 (5th Cir.1996) (per curiam); National Ass‘n of Social Workers v. Harwood, 69 F.3d 622, 628-29 (1st Cir.1995); Hardiman v. Reynolds, 971 F.2d 500, 503 (10th Cir.1992). But a discretionary ruling, which such forgiveness would be, cannot be upheld when there is no indication that the judge exercised discretion, Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); PMC Inc. v. Sherwin-Williams Co., 151 F.3d 610, 620 (7th Cir.1998), and cases cited there; Riordan v. Kempiners, 831 F.2d 690, 697-99 (7th Cir.1987), unless it would have been an abuse of discretion to rule the other way, which, for the reasons we have indicated, it would not have been here. This suggests that our proper course would be to remand the case to enable the district judge to exercise her discretion as to whether to forgive the state‘s waiver. But in light of a recent Supreme Court dictum, this step is unnecessary. The dictum indicates that in all likelihood Heck would not be an obstacle to Carr‘s suit even if the state had pleaded a Heck defense.
A majority of the Justices of the Supreme Court have said that a prisoner who cannot challenge the validity of his conviction (or, what for thеse purposes is the same thing, a prison disciplinary sanction) by either appeal or postconviction procedure can do so by bringing a civil rights suit for damages under
Two issues concerning sanctions have yet to be addressed. First, in the district court Carr moved for sanctions under
It is difficult to believe that this misrepresentation by the state, which goes to the heart of Carr‘s case on the merits, is innocent. We shall therefore issue to the attorney general‘s office a rule to show cause why the authors of the brief should not be sanctioned for unethical advocacy. This is especially needful in light of the repeated criticisms of this office that we have made in other cases. See, e.g., Acorn v. Edgar, 99 F.3d 261, 262 (7th Cir.1996); Cooper v. Casey, 97 F.3d 914, 918 (7th Cir.1996) (“the problem of inadequate representation of the State of Illinois and its agencies and employees is an old one to which we have frequently drawn attention though as yet without effect“), and cases cited there; Anderson v. Romero, 42 F.3d 1121, 1123 (7th Cir.1994).
REVERSED AND REMANDED.
RIPPLE, Circuit Judge, concurring in the result.
This case can be decided in a straightforward manner. In Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), the Supreme Court applied the rule prеviously announced in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to judgments in prison disciplinary proceedings. In Balisok, the Court considered a state prisoner‘s § 1983 challenge to the disciplinary proceeding that resulted in the loss of good time credits. It concluded that the prisoner‘s “claim for declaratory relief and money damages, based on allegations of deceit and bias on the part of the decisionmaker that necessаrily imply the invalidity of the punishment imposed, is not cognizable under § 1983” and therefore must be brought in habeas. Id. at 648.
Most recently, the Court‘s pronouncements in another case have stated the rule in Balisok with more precision and, in so doing, have provided a common-sense ground for decision in the matter now before us. In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court considered the habeas рetition of a prisoner whose sentence, during the pendency of the litigation, had terminated. In a case challenging the revocation of parole rather than the loss of good time credits, the Supreme Court held that the expiration of the habeas petitioner‘s sentence caused his petition to be moot because it no longer presented an Article III case or controversy.1 See id. at 983-86.
Of particular noteworthiness to us, as we review Mr. Carr‘s case, however, is the fact that the Justices concurring and dissenting in Spencer clarified their positions concerning the scope of Heck. Justice Souter, joined by Justices O‘Connor, Ginsburg and Breyer, stated “that a former prisoner, no longer ‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that would be impossible as a mattеr of law for him to satisfy.” Id. at —, 118 S.Ct. at 990 (Souter, J., concurring). Justice Ginsburg reiterated her agreement in her separate concurrence: “I have come to agree with Justice Souter‘s reasoning: Individuals without recourse to the habeas statute merely because they are not ‘in custody’ (people merely fined or whose sentences have been fully served, for example) fit within § 1983‘s ‘broad reach.‘” Id. (Ginsburg, J., concurring). In addition, Justice Stevens stated in his dissent that, “[g]iven the Court‘s holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as Justice Souter explains, that he may bring an action under § 1983.” Id. at —, 118 S.Ct. at 992 (Stevens, J., dissenting).
This pragmatic limitation on the rule of Balisok is not new to this court. In two earlier decisions, five members of this court, including a member of the present panel, have noted that, after these dicta pronouncements in Spencer concerning the breadth of Heck, a majority of the Supreme Court “would treat Heck as inapplicable when collateral review is impossible.” Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.1998); see also Nance v. Vieregge, 147 F.3d 589, 591 (7th Cir.) (noting that five Justices concluded in Spencer “that the approach of Heck does not govern when other relief is impossible“), cert. denied,
Given the availability of this straightforward basis of decision, I cannot understand the panel majority‘s reluctance to base our resolution of the case before us on it. Instead, the panel majority elects to ground its holding on a waiver of the general Balisok rule by the State of Illinois. It is a fair reading of the record to conclude that the Illinois Attorney General did not pursue the possible extension of Heck to prison disciplinary proceedings until the advent of this court‘s decision in Miller v. Indiana Department of Corrections, 75 F.3d 330 (7th Cir.1996). The district court apparently thought that this аpproach was, in light of the state of the law, a permissible one, and I see no reason to armchair quarterback the trial court‘s decision in that regard.
Such an aggressive use of the waiver doctrine against the state with respect to a defense grounded in the state‘s sovereignty indeed sets a precedent with which this court may have difficulty living. This situаtion is exacerbated by the reality that, even in this instance, the waiver doctrine is not being applied evenhandedly. A study of the original record in Miller reveals that the Indiana Attorney General never suggested the applicability of Heck to prison disciplinary proceedings. Yet that officer was not berated for not having defended the interests of Indiana аnd, moreover, was given the benefit of Heck without having asked for it. Indeed, this court compounded the problem by first deciding Miller without oral argument by unpublished order despite the fact that it announced a new governing legal principle.
Notes
Id.As for petitioner‘s concern that law enforcement officials and district judges will repeat with impunity the mootness-producing abuse that he alleges occurred here: We are confident that, as a general matter, district courts will prevent dilatory tactics by the litigants and will not unduly delay their own rulings; and that, where appropriate, corrective mandamus will issue from the courts of appeаls.