Timothy B. Wilks v. Robert J. Rymarkiewicz

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2016 *
Decided July 22, 2016
Before
DIANE P. WOOD, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 16-1371
TIMOTHY B. WILKS, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 15-C-0254
ROBERT RYMARKIEWICZ, et al., C.N. Clevert, Jr.,
Defendants-Appellees. Judge.
ORDER
Timothy Wilks, a Wisconsin inmate, brought this suit under 42 U.S.C. § 1983
against prison officials, challenging a disciplinary conviction and seeking, among other
things, damages and the restoration of good-time credits. The district court dismissed
Wilks’s suit with prejudice at screening for failure to state a claim. Because a judgment
in Wilks’s favor would necessarily imply that he wrongly lost good-time credits, and
* The appellees were not served with process in the district court and are not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the
appellant’s brief and the record. See FED. R. APP. P. 34(a)(2).
No. 16-1371 Page 2
Wilks may challenge that loss only through a habeas petition, we conclude that
dismissal was appropriate. We therefore affirm the judgment, but modify the dismissal
of his claims challenging the loss of good-time credits to be without prejudice.
Our account of the facts is based on Wilks’s complaint, which we accept as true
for purposes of this appeal. See Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). The
chain of events leading to this lawsuit began with a dispute over a work assignment in
early 2012. A guard asked Wilks to write on a work-placement form whether he was
willing to take a job in the prison’s food-services department. The guard explained that
Wilks could turn down the work assignment but that he would lose certain recreational
and housing privileges if he did so. Wilks wrote on the form that he accepted the
assignment but that he did so “under duress.”
The next day, Wilks got into a dispute that led to a conduct report. A guard told
Wilks that he had to sign a new work-placement form agreeing to work in food
services—this time, without adding comments. The guard warned that if Wilks added
comments on the new form, he would lose privileges. Wilks asked for a copy of the
form he had already signed because he thought it was evidence that prison officials
were coercing him into accepting a work assignment. The guard told him that he could
not have that form and ordered him to return to his cell if he did not want to sign a new
one. Wilks asked to talk to a captain, and the guard again ordered him to return to his
cell. When Wilks instead repeated his request to another nearby staff member, the
guard issued a conduct report charging Wilks with disobeying the order to return to his
cell. See WIS. ADMIN. CODE DOC § 303.24 (2012).
Wilks was convicted after an abridged disciplinary hearing and lost good-
conduct credit. The security director classified his disobedience as a “major offense”
because it “created a risk of serious disruption at the institution.” See WIS. ADMIN. CODE
DOC § 303.68(4)(c) (2012). This classification entitled Wilks to a “major” disciplinary
hearing, which includes several procedural rights, such as the right to a staff advocate
and to confront witnesses. Compare id. § 303.76 (2012) (setting forth hearing procedures
for major offenses), with id. § 303.75 (2012) (describing hearing procedures for minor
offenses). An inmate charged with a major offense may, however, waive the right to a
major disciplinary hearing. See id. § 303.76(2) (2012). Wilks did so by signing a waiver
that warned him of the procedural rights he was giving up and the penalties he was
facing. He alleges that he signed the waiver only because prison officials would not
provide him with the completed work-placement form, which he wanted for his
defense. Soon after he signed the waiver, however, Wilks obtained a copy of that form,
No. 16-1371 Page 3
and he sought to withdraw the waiver. The security director rejected the request. See id.
(stating that “waiver may not be retracted without the security director’s approval”). At
his abridged hearing, Wilks maintained his innocence but was found guilty of
disobeying the guard’s order. The prison disciplined him by, among other things,
placing him in segregation for 45 days and rescinding 20 days of good time.
After exhausting his administrative remedies, Wilks brought this suit to restore
his good-conduct credit and get damages. He raised three claims that he continues to
pursue on appeal; all three dispute the validity of the disciplinary conviction. He
asserted first that he had not disobeyed an order. Second, he contended that,
because the guard issued the conduct report in retaliation for his comments on the
work-placement form, his disciplinary conviction violates the First Amendment.
Finally, he argued that the disciplinary hearing denied him due process because he was
not permitted to withdraw his waiver and was unable to timely obtain his work-
placement form to use at the hearing.
The district judge dismissed Wilks’s suit with prejudice at screening for failure to
state a claim. See 28 U.S.C. § 1915A(b)(1). (The judge did not specify whether the
dismissal was with or without prejudice, but the judge’s silence, combined with his
conclusion that Wilks had failed to state a claim, signify that the dismissal was with
prejudice. See FED. R. CIV. P. 41(b); Swanigan v. City of Chicago, 775 F.3d 953, 959 n.2
(7th Cir. 2015).) The judge concluded that Wilks failed to state a claim of retaliation
because he identified no protected speech. Nor had the defendants deprived Wilks of
due process, the judge continued, because Wilks validly waived his major-hearing
rights and the hearing officer reviewed the work-placement form before finding him
guilty. Wilks moved unsuccessfully for reconsideration under Federal Rule of Civil
Procedure 59(e). After filing a notice of appeal, Wilks filed another motion in the district
court to add a new claim: he maintained that prison officials were now retaliating
against him for filing this suit by denying him access to the law library; he sought leave
to amend his complaint to include these allegations and enjoin the retaliation. Because
this appeal was pending, the district judge denied the motion.
On appeal, Wilks first argues that the district judge improperly dismissed his
suit, but for a different reason we conclude that dismissal was warranted. Under
Edwards v. Balisok, 520 U.S. 641, 646–48 (1997), a claim is not cognizable under § 1983 if it
necessarily implies that a conviction depriving an inmate of good-time credits was
invalid. See also Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that damages
remedy that necessarily implies invalidity of criminal conviction is not permitted while
No. 16-1371 Page 4
conviction stands); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that writ of
habeas corpus is sole remedy in federal court for prisoner seeking restoration of
good-time credits). Wilks’s § 1983 claims rest on the premise that his disciplinary
conviction resulted from a trumped up, retaliatory conduct report and a deprivation of
due process, so a judgment in his favor would necessarily imply that he was wrongly
deprived of good-time credits. The only way for Wilks to challenge in federal court a
disciplinary conviction that prolongs his custody is by filing a habeas petition under
28 U.S.C. § 2254. See Preiser, 411 U.S. at 500; Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir.
2000). Thus, though dismissal was proper, Wilks’s suit should have been dismissed
without prejudice, as that is the type of dismissal that applies to actions barred by Heck
or Edwards. See, e.g., Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014); Copus v. City of
Edgerton, 96 F.3d 1038, 1039 (7th Cir. 1996).
We have considered whether we can “convert” this case to a § 2254 petition, but
conclude that we cannot. Generally a court cannot on its own convert a § 1983 suit to
one under § 2254; the two kinds of actions have different conditions, different
defendants (or respondents), and different consequences. See, e.g., Moore v. Pemberton,
110 F.3d 22 (7th Cir. 1997); Copus, 96 F.3d at 1039. A district judge may convert a § 1983
suit into a habeas petition only if the litigant is notified of the judge’s intent, warned of
the consequences, and given a chance to withdraw or amend the petition. See Castro v.
United States, 540 U.S. 375, 382–83 (2003); Glaus v. Anderson, 408 F.3d 382, 388–89
(7th Cir. 2005). None of those conditions is satisfied here, and recasting Wilks’s filing
sua sponte on appeal would thus be inappropriate.
Finally, Wilks challenges the district judge’s denial of his requests for leave to
amend his complaint and for injunctive relief. But the judge could not grant either
request because Wilks filed his motion while this appeal was pending, and “a district
court is divested of jurisdiction once a notice of appeal is filed.” Ameritech Corp. v. Int'l
Bhd. of Elec. Workers, Local 21, 543 F.3d 414, 418 (7th Cir. 2008); see Hughes v. Farris,
809 F.3d 330, 333–34 (7th Cir. 2015). Wilks is not without recourse, however. If prison
officials are, as he asserts, depriving him of library access because he filed this suit, he
may bring First Amendment claims of retaliation and denial of access to the courts by
filing a new suit (and paying a new filing fee). See Smith v. Peters, 631 F.3d 418, 420–21
(7th Cir. 2011) (explaining that inmate stated a claim of First Amendment retaliation by
alleging that prison punished him for complaining about mistreatment by limiting his
library access and firing him from job); Marshall v. Knight, 445 F.3d 965, 968–69 (7th Cir.
2006) (recognizing inmate’s access-to-courts claim based on reduced access to prison
law library).
No. 16-1371 Page 5
We MODIFY the district court’s judgment so that Wilks’s claims challenging the
validity of his disciplinary conviction are dismissed without prejudice. As so modified,
the judgment is AFFIRMED.