Today the Supreme Court issued an 8-1 opinion in Wilkinson v. Dotson, No. 03-287 (U.S. Mar. 7, 2005). Justice Breyer authored the opinion and set up the case:
Two state prisoners brought an action under 42 U. S. C.
§1983 claiming that Ohio’s state parole procedures violate the Federal
Constitution. The prisoners seek declaratory and injunctive relief. The
question before us is whether they may bring such an action under Rev.
Stat. §1979, 42 U. S. C. §1983, the Civil Rights Act of 1871, or
whether they must instead seek relief exclusively under the federal
habeas corpus statutes. We conclude that these actions may be brought
Under Heck v. Humphrey,
a state prisoner may not bring a §1983 action challenging "the fact or
duration" of his confinement. A state prisoner can't sue the police
for violating his Fourth Amendment rights, e.g., his right to be free
from unreasonable searches, if that goes to the "fact" of his
confinement. It goes towards the fact of his confinement if the improperly seized evidence was used to convict him. The Heck v. Humphrey rule requires the prisoner to litigate his issue in a habeas proceeding.
The Heck v. Humphrey bar is absolute. As Justice Breyer notes in Wilkinson:
[A] state prisoner’s §1983 action is barred (absent
prior invalidation)—no matter the relief sought (damages or equitable
relief), no matter the target of the prisoner’s suit (state conduct
leading to conviction or internal prison proceedings)—if success in
that action would necessarily demonstrate the invalidity of confinement
or its duration.
Slip op. at 7. Although the "fact" aspect of Heck
is easy to understand, the "duration" prong is somewhat difficult to
wrap one's mind around. For example, what if a prisoner sues prison administrators
for depriving him, without due process, of the property interest in his
The lawsuit doesn't go to duration the way directly attacking the
state sentencing court's judgment does. Indeed, the prisoner would
argue that he's suing to vindicate a property right. Alas, his claim
touches duration, since a court would, by restoring good time credits,
be shortening the prisoner's sentence. See Preiser v. Rodriguez. Preiser gave a rule tough for some to accept, but it was easy enough to understand.
Then in Wolff v. McDonnell, the Court decided to confuse me. Here is Justice Breyer, in Wilkinson, describing the holding of Wolff:
[In Wolff the Court held that] the inmates
could use §1983 to obtain a declaration (as a predicate
to their requested damages award) that the disciplinary procedures were
invalid. They could also seek by way of ancillary relief, an
otherwise proper injunction enjoining the prospective enforcement of
invalid prison regulations. In neither case would victory for the
prisoners necessarily have meant immediate release or a shorter period
the prisoners attacked only the wrong procedures, not . . . the wrong
result (i.e., the denial of good-time credits).
Slip op. at 5 (citations and quotation marks omitted). Not content to merely confuse me, the Court in Edwards v. Balisok later held, according to Justice Breyer:
was the sole vehicle for the inmate's constitutional challenge insofar
as the prisoner sought declaratory relief and money damages, because
the principal procedural defect complained of, namely deceit and bias
on the part of the decisionmaker, would, if established,
necessarily imply the invalidity of the deprivationof Balisok's
good-time credits. Hence, success on the prisoner’s claim for money
damages (and the accompanying claim for declaratory relief) would
necessarily imply the invalidity of the punishment imposed.
Nonetheless, the prisoner’s claim for an injunction barring future
unconstitutional procedures did not fall within habeas’ exclusive
domain. That is because ordinarily, a prayer for such prospective
relief will not necessarily imply the invalidity of a previous loss of
Id. at 5-6. Now comes the facts of Wilkinson.
In Wilkinson two state prisoners are challenging parole procedures under the Due Process and Ex Post Facto
clauses. The parole procedures, if changed by the Court, would affect
the time the prisoners would spend in prison. Seems like it would fall
under the "duration" element of Heck, no?
Well, no. Justice Breyer wrote:
Applying [Heck, Wolff, Preiser, Balisok]
to the present case, we conclude
that respondents' claims are cognizable under §1983, i.e., they do not
fall within the implicit habeas exception. Dotson and Johnson seek
relief that will render invalid the state procedures used to deny
parole eligibility (Dotson) and parole suitability (Johnson). Neither
respondent seeks an injunction
ordering his immediate or speedier release into the community. And as in
a favorable judgment will not necessarily
imply the invalidity of their convictions or sentence. Success for
Dotson does not mean immediate release from confinement or a shorter
stay in prison; it means at most new eligibility review, which at most
will speed consideration of a new parole application. Success for
Johnson means at most a new parole hearing at which Ohio parole
authorities may, in their discretion, decline to shorten his prison
Wilkinson at *7. In other words, the remedial tail will wag the Heck dog.
UPDATE: What will Wilkinson mean? Professor Berman wants to know: Will "Dotson ... bring a new wave of §1983 litigation." I'd love to hear Norm's answer. Here's mine -- In a word, yes.
Before Wilkinson v. Dotson,
parole procedures were almost unreviewable. The parole board usually
stamped a big bold "DENIED" on the application. There wasn't much
recourse for the prisoner, other than to wait patiently for another
hearing. Most people thought there was little to do. Indeed, the
ACLU's Prisoners' Rights fact sheet does not even contain a section on parole procedures.
My reading of Wilkinson is that the full panoply of
constitutional challenges are available to the prisoner. So long as
the prisoner styles his action as one for limited declaratory and
injunctive relief, the section 1983 action will lie. What do I mean by
The prisoner can not ask that the parole board's findings be
overturned. But he can now get a declaratory judgment from a judge
stating that the parole procedures were invalid. And thus, the
prisoner would be entitled to a new hearing. However, the judge can
not rule: "Therefore, the prisoner should be granted parole [his
sentence must be reduced]." The issue is one of procedure.
The prisoner may also seek injunctive relief, assuming he meets the requirement of City of Los Angeles v. Lyons
(holding that 1983 plaintiff must face imminent injury from
unconstitutional practice to meet Article III case or controversy
requirement), the prisoner could invalidate a parole board's procedures
before facing the parole board. Of course, please don't forget about
And we can not read Wilkinson in a vacuum. The
contours of the constitutional rights, if any, available before parole boards are yet to be drawn. But post-Wilkinson, lawyers as artists can start painting them.
A law student looking for a pro bono project should volunteer
to help prisoner's file 1983 actions to ensure that parole procedures
are constitutional. It will be rewarding and educational.