Robert Huber v. Gloria Anderson , 909 F.3d 201 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1302
ROBERT W. HUBER, JR.,
Plaintiff-Appellant,
v.
GLORIA ANDERSON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 16-CV-19-JPS — J.P. Stadtmueller, Judge.
____________________
ARGUED APRIL 18, 2018 — DECIDED NOVEMBER 26, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and EASTERBROOK,
Circuit Judges.
WOOD, Chief Judge. In 1988, Robert W. Huber, Jr., pleaded
guilty to making fraudulent credit card charges in the amount
of $800. He spent the next 25 years either on probation or in
prison for violating the terms of his probation. Yet Wisconsin
had no lawful basis for extending his sentence beyond No-
vember 3, 1995. It took the state until 2014 to recognize this
problem and to vacate his ongoing sentence.
2 No. 17-1302
After his release, Huber filed this action. He sued several
state officials for his prolonged sentence and related wrongs.
The district court granted the defendants’ motion for sum-
mary judgment, ruling that Huber had failed to bring most
claims within six years of their accrual, as was then required
under Wisconsin’s statute of limitations. The court ruled that
some of Huber’s claims were timely, but it granted the de-
fendants summary judgment on the merits of those claims.
We conclude that Huber’s claims were timely and that sum-
mary judgment was premature on those that the district court
reached. We therefore reverse in part, vacate in part, and re-
mand for further proceedings.
I
A
Huber was sentenced in 1988 to four years’ probation for
fraudulently using another man’s credit card. Three years
were added to his probation because he failed to pay restitu-
tion. With that extension, his sentence should have ended on
November 3, 1995. But it did not. In order to understand the
confused course of events that followed, we must look at Hu-
ber’s less-than-stellar record on probation.
Huber fell into “absconder status” on May 19, 1993, and
the state secured an apprehension request for him on Janu-
ary 13, 1994. Shortly thereafter, Gloria Anderson became Hu-
ber’s probation agent. In November 1994 Huber was arrested
on the January apprehension request, but he was released
four days later. On the day of his release, Anderson met with
Elizabeth Hartman, a Department of Corrections (DOC) Field
Supervisor and Anderson’s supervisor. Hartman’s meeting
No. 17-1302 3
notes indicated that Huber’s discharge date was still Novem-
ber 3, 1995. Under a section of her notes headed “Positive Ad-
justment” she wrote that there had been “no new charges,”
and under a section headed “Current Violations” she noted
“absconder since 5-19-93.” Despite his lengthy failure to re-
port, the state did not attempt to revoke his probation, nor did
it take any steps to “toll” the running of his probation sen-
tence to prevent him from getting credit for the time while he
was on the lam. After the November 1994 arrest, Huber began
sporadically reporting to probation. In April 1995, Anderson
wrote in Huber’s chronological case summary that his proba-
tion “has been extended 1x already—to discharge 11-3-95.” In
her last log entry before the discharge date, Anderson wrote
“no changes—all ok.”
November 3 came and went without any action: no re-
lease, no modification of Huber’s probation, no formal exten-
sion. Two weeks later, without any reference to her repeated
notes acknowledging the November 3, 1995, release date, An-
derson issued an apprehension request for Huber. He was ar-
rested and jailed on that request in January 1996. While Huber
was in jail, Anderson (along with Hartman) told him that his
probation had been suspended from May 1993 to November
1994. If that was true, there was outstanding time to be served.
They instructed Huber to sign a “Request for Reinstatement”
of his probation. He complied, even though he now asserts
that the form was blank at the time and later changed to read
as if Huber admitted to absconding as of May 19, 1993.
Equipped with Huber’s signature on the document, Ander-
son submitted a recommendation to Hartman to reinstate Hu-
ber’s probation and to suspend the sentence from May 19,
1993, until his reinstatement. Hartman approved, and either
4 No. 17-1302
Allan Kasprzak, who was the DOC’s Regional Chief for Mil-
waukee, or a deputy using Kasprzak’s signature stamp, is-
sued the order of reinstatement, which continued Huber’s
probation until July 1998.
Michael Walczak became Huber’s probation agent in 1998.
By that time, Huber had again absconded, and so he was not
earning credit toward his probation. He was arrested on an-
other apprehension request in September 1999. Walczak rec-
ommended that Huber’s probation be reinstated, with the
sentence on hold from April 1996, and so once again, Huber
was back on probation. For reasons immaterial to this case,
Walczak initiated probation revocation proceedings against
Huber in October 2000. Those proceedings resulted in Hu-
ber’s receiving a ten-year prison sentence. Huber has alleged
that Walczak doctored Huber’s case file before that revocation
hearing, but this allegation also is immaterial for our pur-
poses.
While imprisoned, Huber made numerous efforts to over-
turn his sentence. He pursued administrative remedies and
filed petitions in state and federal court. Nothing he did won
his release, but during discovery for his federal petition he ob-
tained a copy of the January 1996 Request for Reinstatement
that Anderson had him sign. That form provided the evidence
Huber needed to show that Anderson had extended Huber’s
probation after the state’s jurisdiction to do so had lapsed.
In June 2011, shortly before Huber’s term of imprisonment
expired, Niomi Bock was assigned as Huber’s probation
agent. According to Huber, after Bock’s appointment, Huber
had a conference call with Bock, Kathy Walter (Bock’s super-
visor), and his social worker. He explained why, in his view,
the state no longer had jurisdiction to punish him. Huber’s
No. 17-1302 5
social worker offered to fax documents corroborating Huber’s
position to the DOC. Huber asked to meet with Bock, Walter,
and the DOC’s counsel. Bock and Walter denied the requests.
When Huber was released from custody in October 2011 he
repeatedly told Bock why continuing his probation was un-
lawful; he begged her to review his supporting materials.
Bock conferred with Walter about her professional obligations
in light of Huber’s statements. Walter told Bock that Bock’s
duties extended no further than ensuring Huber’s compliance
with his probation; Bock was not responsible for assessing the
validity of Huber’s sentence. Walter did call Wisconsin’s Cen-
tral Records Unit (“Records”), which she contends was the fi-
nal authority for calculating sentences and discharge dates. A
Records agent confirmed that Huber was properly on proba-
tion. But Walter admitted that she never asked the Records
agent if the documents in the DOC’s internal management
systems were the same as the records Huber had.
Though no longer in prison, Huber had not abandoned his
effort to vacate his sentence. He wanted to conduct research,
but because of an unrelated conviction, he needed preap-
proval for computer usage. In October 2011, he sought ap-
proval to use a public library’s computers. After conferring
with Walter, Bock denied the request. She told Huber, how-
ever, that if he came to the probation office, an agent would
do the research for him for two hours. Huber tried this system
on November 16, 2011, but he was frustrated when the agent
stalled each time he asked her to find something. Worse than
that, she left for 5- to 20-minute intervals. The only fruits of
her “two-hour” assistance were the instructions for pro se Su-
preme Court filings. Huber could not print even that; all re-
search had to be saved to a flash drive.
6 No. 17-1302
When Huber returned to the probation office the next day
to collect the flash drive, Bock presented him with a consent
form for sex-offender treatment (another condition of the un-
related conviction). Huber refused to sign unless his signature
was marked as being “under protest” because, as he again
told Bock, the DOC lacked jurisdiction over him. Bock re-
ported the refusal to Walter, who considered it a breach of
probation and had Huber arrested and searched. Agents
found an unapproved flash drive in his possession. After this
incident, Walter initiated probation revocation proceedings.
A revocation hearing was held in March 2012. Huber ar-
gued that the DOC had lost jurisdiction in November 1995
and presented supporting documentation. Bock testified that
she was unaware of any 1995 order extending Huber’s proba-
tion. A record keeper from her office had looked for one in
anticipation of the hearing but had come up empty. Neverthe-
less, the presiding ALJ ordered revocation. The Division of
Hearings and Appeals affirmed. Huber then petitioned the
Wisconsin Circuit Court for a writ of certiorari, seeking to va-
cate his sentence because the DOC had lost jurisdiction in No-
vember 1995. The Circuit Court granted the writ, but it con-
cluded the factual record was underdeveloped, and so it re-
manded the case to the Division of Hearings and Appeals for
further development.
Following the Circuit Court’s order, Sandra Hansen, Wal-
ter’s replacement, and Sheri Hicks, the Department of Com-
munity Corrections Records Director, began investigating. By
October 2013, they discovered that Huber had been right all
along and that the error had not been uncovered because the
state’s internal records systems did not accurately reflect that
Huber’s probation had ended before Anderson’s January 1996
No. 17-1302 7
Request for Reinstatement. Hansen notified the ALJ who had
presided over Huber’s most recent revocation hearing of the
error and asked that all of Huber’s probation revocations be
vacated. Three days later, the Division of Hearings and Ap-
peals vacated the revocations. Hicks then wrote to the Circuit
Court, asking it to vacate Huber’s sentence. She attached the
order of the Division of Hearings and Appeals. Finally, in Jan-
uary 2014, the Circuit Court vacated Huber’s sentence, agree-
ing that the state had lost jurisdiction in November 1995.
B
Huber filed a federal complaint on January 6, 2016. The
complaint, which alleged numerous constitutional violations,
named as defendants Anderson, Hartman, Kasprzak,
Walczak, Bock, and Walter. Most claims survived a magistrate
judge’s screening order. Both sides then moved for summary
judgment. The district court ruled that Wisconsin’s six-year
statute of limitation barred most of Huber’s claims, including:
• the Eighth Amendment claims against Anderson,
Hartman, Kasprzak, and Walczak;
• the failure-to-intervene claims against Bock and Wal-
ter;
• the First Amendment retaliation claim against
Walczak;
• the access to the court claim against Walczak; and
• the denial of the right to vote claims against all defend-
ants.
For the remaining claims, the district court granted summary
judgment to the defendants on the merits. Those included:
8 No. 17-1302
• the Eighth Amendment claims against Bock and Wal-
ter; and
• the access-to-court claims against Bock and Walter.
Huber appeals each part of the district court’s judgment.
II
Though the district court dismissed many of Huber’s
claims as untimely, Wisconsin reasserts a timeliness defense
only for Huber’s Eighth Amendment claims against Ander-
son, Hartman, Kasprzak, and Walczak. As for the rest, Wis-
consin concedes the error of the district court’s ruling. Be-
cause a timeliness defense to a section 1983 claim is not juris-
dictional, see Smith v. City of Chicago Heights, 951 F.2d 834, 839
(7th Cir. 1992), we consider the timeliness only of the claims
that are still contested on that ground.
An action under 42 U.S.C. § 1983 must be brought within
the statute of limitations for personal injuries supplied by the
state in which the claim arose. Wallace v. Kato, 549 U.S. 384, 387
(2007). This case comes to us from Wisconsin, where the limi-
tations period at the time Huber filed this action was six years.
See Wis. Stat. § 893.53 (2016), amended by 2017 Wis. Act 235
(eff. Apr. 5, 2018) (reducing applicable statute of limitations
from six to three years). While we borrow the state’s limita-
tions period, federal law determines the action’s accrual date.
It instructs that accrual occurs when “the plaintiff has ‘a com-
plete and present cause of action,’ … that is, when ‘the plain-
tiff can file suit and obtain relief.’” Wallace, 549 U.S. at 388
(quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund
v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201 (1997)). Because
“habeas corpus is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement and
No. 17-1302 9
seeks immediate or speedier release,” Heck v. Humphrey,
512 U.S. 477, 481 (1994), any section 1983 action challenging
the fact or length of confinement does not accrue until the un-
derlying confinement has been invalidated through a direct
appeal, post-conviction relief, or some other means. Id. at 486–
87, 489–90.
This case calls for no more than a simple application of
Heck’s rule. Invoking the Eighth Amendment, Huber alleges
that defendants, through their deliberate indifference, unlaw-
fully prolonged his custody. Had Huber tried to file this ac-
tion before January 2014, he would have been blocked by
Heck. His claim did not accrue until the Circuit Court invali-
dated his sentence. Huber filed this action in 2016, well within
Wisconsin’s six-year statute of limitations (and also within its
new three-year period).
Wisconsin suggests, however, that Huber could have
brought his Eighth Amendment claims between November
1995 and February 2001, and thus they accrued long before
January 2014. It argues that during that window, a section
1983 action would not have necessarily implied “the invalid-
ity of his conviction or sentence” but rather “merely implie[d]
that through [defendants’] alleged error, Huber’s probation-
ary term was mistakenly extended.” This position suffers
from two problems: most importantly, it betrays a serious
misunderstanding of Heck; and secondarily, it overlooks Hu-
ber’s repeated (though at times misguided) efforts to correct
the problem.
The main point the state is trying to make is unclear. If it
is contending that Huber could have brought a section 1983
action before February 2001 because he had not yet been sen-
tenced to a term of imprisonment, that argument runs afoul of
10 No. 17-1302
Heck’s underlying principle: in any case in which habeas cor-
pus is available, it is the prisoner’s exclusive remedy. 512 U.S.
at 481. And habeas corpus is available to anyone in custody,
probationers included. See Maleng v. Cook, 490 U.S. 488, 491
(1989); Jones v. Cunningham, 371 U.S. 236, 242 (1963). There
was no time after the initial 1995 mistake when Huber was not
in custody until his ultimate vindication in 2014, and so his
only remedy during that period was habeas corpus. Alterna-
tively, if the state means to assert that Heck would not have
barred a pre-2001 action because such an action would not
have challenged a court-ordered sentence, then its argument
self-destructs on the basis of Edwards v. Balisok, 520 U.S. 641,
646–48 (1997) (ruling that a prisoner could not bring a section
1983 action that necessarily implied the invalidity of prison
disciplinary proceedings). Balisok holds that Heck’s rule ex-
tends to a section 1983 action that necessarily assails adminis-
trative deprivations of liberty. It is thus immaterial that the
reason why Huber’s probation was extended between No-
vember 1995 and February 2001 may have been inadvertence;
the key fact is that his custody was continuous.
Nor is the defendants’ comparison of this case to Wallace
v. Kato, supra, apt. While Heck’s bar is inapplicable to a section
1983 action that would call into question only a future convic-
tion or anticipated custody, see 549 U.S. at 393, Huber’s
Eighth Amendment claim seeks redress for unlawful custody
that began in November 1995. Had he brought the present
case between 1995 and 2001, he would not have been attack-
ing the possibility of unlawful future confinement, as in Wal-
lace. See id. Rather, his claim would have challenged his pro-
longed probation and would have been barred under Heck.
No. 17-1302 11
We recognize that many of Huber’s claims relate to events
that are now more than 20 years in the past. But that is a nat-
ural consequence of the Heck rule. And this is not a situation
in which the doctrine of laches has any role to play. As our
account of Huber’s saga illustrates, he did try to contest his
custody, but he was acting pro se and did not know what steps
he needed to take. He did not sit on his rights. If wrongful
custody lasts for a long time, then Heck will require both par-
ties to litigate over dated civil claims. That is simply the price
of the Heck doctrine, which normally ensures that civil litiga-
tion does not undermine the basis of criminal convictions and
sentences.
III
Wisconsin asks in the alternative that we affirm the grant
of summary judgment for each of Huber’s claims on the mer-
its. For the claims disposed of as untimely we will not do so.
In the interest of orderly proceedings, the district court should
be the first stop. We will, however, review the arguments
about the claims already disposed of on the merits.
A
There is no longer any dispute that Huber’s custody was
unlawfully prolonged. Huber urges that this amounted to a
violation of his Eighth Amendment rights. In order to defeat
the defendants’ summary judgment motion, he had to bring
forth evidence that would permit a trier of fact to conclude
that his protracted sentence was the product of deliberate in-
difference on the part of one or more of the defendants. Figgs
v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016). That standard “re-
12 No. 17-1302
quires more than negligence or even gross negligence; a plain-
tiff must show that the defendant was essentially criminally
reckless, that is, ignored a known risk.” Id.
Most of the defendants prevailed on the statute of limita-
tions ground we already have rejected; this includes Ander-
son, Walczak, Hartman, and Kasprzak. The situation of Bock
and Walter is different. In their cases, the court found that Hu-
ber had not presented enough evidence on the merits to de-
feat the summary judgment motion. For those two, Figgs is
our most instructive precedent.
In Figgs, the plaintiff complained to two prison officials—
a recordkeeper and the warden—that he was being held past
his actual release date because of an error in the state’s paper-
work. Id. at 899–900. He sued each official, alleging that their
deliberate indifference to his complaints violated his Eighth
Amendment rights. Id. at 902. We ruled that Fishel, the record
keeper, was not entitled to summary judgment. Id. at 904.
Though Fishel had investigated the accuracy of Figgs’s asser-
tion, we concluded that a trier of fact could find her investiga-
tion to be “so ineffectual that it rose to the level of criminal
recklessness and thus constituted deliberate indifference.” Id.
at 905. Upon learning of Figgs’s complaint, Fishel reviewed
some of the documents stored in the on-site master file, con-
tacted the DOC’s central record keeping office to confirm
Figgs’s sentence, and sent the central record-keeping office
part of Figgs’s master file for its review. Id. at 900–01. But
Fishel knew that Figgs was complaining about inaccurate rec-
ord keeping that could be revealed only by close inspection of
the full master file. Id. at 904. In the face of that knowledge,
she neither undertook such a review nor provided the central
record-keeping office the information needed to discover the
No. 17-1302 13
error. Id. Conversely, we found that Dawson, the prison’s
warden, was entitled to summary judgment. Id. at 903. After
he became aware of Figgs’s complaint, Dawson consulted
Fishel and relied on her calculation. Id. at 903. That was a rea-
sonable step for someone in his position, in light of the general
rule that prison administrators may rely on staff to perform
specifically delegated functions. Id. at 903–04.
Wisconsin asserts that Bock and Walter are more compa-
rable to Dawson than to Fishel. It reasons that each defendant
did all that her job required: Bock elevated the issue to Walter,
and Walter contacted the central records unit. But that de-
scription leaves out critical facts. Huber, like Figgs, was not
complaining about an administrative or arithmetic error. Ver-
ifying his complaint necessitated a close inspection of docu-
ments in his file. Bock did not need to guess that this was the
case: Huber told her, repeatedly. Huber repeatedly offered to
give Bock the corroborating documents or to direct her where
to look. Yet she averted her eyes from the substantiating in-
formation. Nor is Walter’s call to the central records unit con-
clusive, because she failed to ask the representative to com-
pare the DOC’s internal documents to the sequence of events
Huber described or even to call the representative’s attention
to the documents Huber referenced. Without that alert, the
records representative could not have been expected to iden-
tify the alleged error.
A juror could conclude that despite knowing the nature of
Huber’s complaint, Bock and Walter performed an investiga-
tion that was no more likely to confirm or disprove the legal-
ity of Huber’s detention than Fishel’s investigation was for
Figgs. We are not saying that a jury would be required to view
the facts this way, but a reasonable jury could find deliberate
14 No. 17-1302
indifference here. Indeed, some facts in the record suggest
that final responsibility for the accuracy of Huber’s sentence
did not reside with the central records unit. Construing facts
and inferences in Huber’s favor, as we must at this stage, Wal-
ter’s failure to bring the complaint to the proper authority ex-
hibited deliberate indifference. Huber’s Eighth Amendment
claims against these defendants therefore are not suitable for
dismissal at summary judgment.
B
The district court also dismissed on the merits Huber’s
claims that Bock and Walter violated his right of access to the
court. But in doing so, the court incorporated the elements of
a retaliation claim. The magistrate judge’s screening order
had allowed only the access-to-court claims to proceed, on the
notion that the retaliation claims were “captured in the access-
to-the-courts claim[s] that he is being permitted to pursue.”
The district court construed that order to say that Huber’s ac-
cess-to-court claims against Bock and Walter were in essence
retaliation claims. It then looked for evidence that Bock or
Walter had retaliated against Huber. Finding none, it granted
summary judgment.
The problem here is a legal one. Huber’s access-to-court
claim was distinct from his retaliation claim. The phrasing
that the magistrate judge chose may have obscured this fact.
There is an independent constitutional right to meaningful ac-
cess to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). For
people in custody, that might require providing access to le-
gal materials needed to research both the law and facts that
might support a cause of action. Brooks v. Buscher, 62 F.3d 176,
179 (7th Cir. 1995). If restricting access too severely frustrates
the pursuit of an independent, non-frivolous legal right, then
No. 17-1302 15
there is a violation of the right of access to the court. Lehn v.
Holmes, 364 F.3d 862, 868 (7th Cir. 2004). Alternatively, if a
person is denied access to research materials in retaliation for
filing grievances, for instance, there is an independent retali-
ation claim. On remand, the district court must sort out these
two theories. In addition, it should consider whether the de-
fendants are entitled to immunity for positions they took in
litigation during the administrative proceedings, or if some-
thing along the lines of Brady v. Maryland, 373 U.S. 83 (1963),
might furnish the basis for liability, if or to the extent that Hu-
ber is asserting that the defendants withheld exculpatory ma-
terials from the decision-makers.
IV
Huber’s claims are old, but because of Heck old does not
necessarily mean untimely. The district court should not have
dismissed any of Huber’s claims as having been filed outside
the governing limitations period. Moreover, dismissal of the
four claims that were considered on the merits was prema-
ture. We therefore REVERSE the grant of summary judgment in
favor of Bock and Walter on Huber’s Eighth Amendment
claims, VACATE the grant of summary judgment on all other
claims, and REMAND for further proceedings. We DENY Hu-
ber’s request to assign this case to a different district court
judge pursuant to Circuit Rule 36.