Clarke v. Stalder , 154 F.3d 186 ( 1998 )

EMILIO M. GARZA, Circuit Judge:

We granted rehearing en banc to consider whether the Supreme Court’s decisions in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), bar Charles W. Clarke, a Louisiana state prisoner,. from bringing a facial challenge to a portion of Rule 3 of the Louisiana Department of Public Safety and Corrections’ Disciplinary Rules and Procedures for Adult Prisoners (“Rule 3”) in a 42 U.S.C. § 1983 action when Clarke has not yet had his “conviction” reversed, expunged, or otherwise declared invalid. If Heck and Edwards do not bar Clarke’s claim, we also granted rehearing en banc to consider the question, of whether the portion of Rule 3 in question facially violates prisoners’ First Amendment rights.

The magistrate judge who heard this case held that Rule 3 had been unconstitutionally applied to Clarke and that the portion of the rule in question was facially unconstitutional. Based on these holdings, the magistrate judge restored Clarke’s lost good-time credits but declined to award him damages. On appeal, a panel of this court reversed the magistrate judge and held that the Supreme Court’s decisions in Heck and Edwards bar Clarke from bringing claims for damages and reinstatement of lost good-time credits in a § 1983 action until his “conviction” has been reversed, expunged, or otherwise declared invalid. Clarke v. Stalder, 121 F.3d 222 (5th Cir.), reh’g en banc granted and opinion vacated by 133 F.3d 940 (5th Cir.1997). In Part III of its opinion, however, the panel affirmed the magistrate judge and held that Clarke’s facial challenge to the constitutionality of Rule 3 was not barred by Heck or Edwards, that Clarke had standing to bring a facial challenge to the rule, and that the portion of the rule in question was facially violative of the First Amendment.

Finding that Heck and Edwards bar Clarke’s facial challenge at this time, we vacate the magistrate judge’s holding that Rule 3 is facially unconstitutional and remand with instructions to dismiss. All parts of the panel opinion except for Part III and related portions of Part V are hereby reinstated.

I

The facts underlying Clarke’s confrontation with Moulard and the ensuing suit are fully discussed in the panel opinion and dissent, Clarke v. Stalder, supra. As recounted there, Clarke brought the instant action against various prison officials based on events arising out of a confrontation with Captain Charles Moulard, a prison guard. Clarke interfered with another prisoner to whom Moulard had assigned various chores. When Moulard attempted to issue a disciplinary report to Clarke, Clarke threatened to file a lawsuit and an administrative complaint against Moulard. Moulard accordingly charged Clarke with violating Rule 3. This rule, in part, prohibits a prisoner from “threatening [a prison employee] with legal redress during a confrontation situation”¹ (“no threats of legal redress” portion). At a hearing before a prison disciplinary board, Clarke denied Moulard’s allegations, but to no avail. The disciplinary board found that Clarke had violated Rule 3 because Mou-lard’s report was clear and precise, Clarke had offered no coherent defense, and Clarke had little credibility. The board also noted that Clarke “admit[ted] he threatened legal redress during a confrontation with staff.” The board punished Clarke,with the loss of ten days good-time credits and transferred him to a higher-security prison.

Clarke subsequently brought this suit, alleging that the “no threats of legal redress” portion of Rule 3 violated his rights protected by the First Amendment and seeking damages and the return of his good-time credits. He also sought prospective injunc-tive relief from the “no threats of legal redress” portion of, the rule on grounds of facial unconstitutionality. A panel of this court held that Heck and Edwards “clearly barred” Clarke’s contention that he was entitled to damages and reinstatement of his good-time credits because so doing would “necessarily imply” the invalidity of his “conviction.” See Clarke, 121 F.3d at 226. With regard to Clarke’s facial challenge to Rule 3, the panel held that “it is unclear upon which portion of [Rule 3] Clarke’s conviction is based. That being so, a ruling in Clarke’s favor on Iris First Amendment claim for prospective relief will not ‘necessarily imply’ the invalidity of his prison conviction.” Id. at 227.

II

The root inconsistency in the panel opinion lies in its finding that the prison disciplinary board punished Clarke for violation of the “no threats of legal redress” portion of Rule 3 with regard to Clarke’s claims for damages and restoration of his good-time credits but not with regard to his claim that this portion of Rule 3 is facially unconstitutional. Both the report issued by the prison disciplinary board and the report issued by the Secretary of the Louisiana Department of Corrections on Clarke’s internal appeal of the disciplinary board decision state that Clarke admitted to the prison disciplinary board that he “threatened legal redress during a confrontation with staff.” Clarke’s complaint, as amended, alleges that he was punished for violating the “no threats of legal redress” portion of Rule 3 in violation of the First Amendment. Although the appellants argued below and to this court at its en banc rehearing of this case that Clarke had been punished for violating other portions of Rule 3 in addition to the “no threats of legal redress” portion of the rule, the magistrate’s opinion indicates as follows:

At issue in this ease is that portion of Rule 3 which allows prison officials to discipline inmates for “threatening” legal redress during a “confrontation situation” ... From the evidence that was presented at trial, the Court readily infers that plaintiff was stripped of good time credits and was transferred to a medium security prison in retaliation for voicing his intention to exercise his First Amendment rights.

Critically, the magistrate’s opinion also states: “[h]ad [Clarke] threatened the defendant with physical harm or insulted the employee or his family, disciplinary action against [Clarke] would have been appropriate under the other, unchallenged portions of DOC Rule 3.” Accordingly, we find that Clarke was punished for violation of the “no threats of legal redress” portion of Rule 3.

Ill

We start with several familiar propositions. A prisoner cannot, in a § 1983 action, challenge the fact or duration of his confinement or recover good-time credits lost in a prison disciplinary proceeding. See Preiser v. Rodriguez, 411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1973). A prisoner also cannot bring a § 1983 action seeking damages (rather than the recovery of good-time credits) based on a “conviction” until that “conviction” has been reversed on direct appeal, expunged by executive order, or otherwise declared invalid in a state collateral proceeding or by the issuance of a federal writ of habeas corpus, if a favorable judgment would “necessarily imply” the invalidity of the prisoner’s “conviction” or the length of his confinement. Heck, 512 U.S. at 486-87, 114 S.Ct. at 2372. A “conviction,” for purposes of Heck, includes a ruling in a prison disciplinary proceeding that results in a change to the prisoner’s sentence, including the loss of good-time credits. See Edwards, 520 U.S. at -, 117 S.Ct. at 1587; Stone-Bey v. Barnes, 120 F.3d 718, 721 (7th Cir.1997) (“The ‘conviction’ in the prison disciplinary sense is the finding of guilt on the disciplinary charge, and if success of the plaintiffs section 1983 claim necessarily would imply the invalidity of that finding, then Heck bars the claim until such time as its requirements are satisfied.”). Claims for damages and declaratory relief challenging the procedures used in, but not the results of, prison disciplinary proceedings are similarly not cognizable in a § 1983 action until the relevant “conviction” has been reversed, expunged, or otherwise declared invalid if a favorable judgment would “necessarily imply” the invalidity of the prisoner’s “convietion” in the disciplinary proceeding or the length of the prisoner’s confinement. Edwards, 520 U.S. at -, 117 S.Ct. at 1588.

Like Clarke, the prisoner-plaintiff in Edwards brought a claim for prospective injunctive relief, in addition to bringing claims for damages and declaratory relief. The Supreme Court remanded the claim for prospective injunctive relief without deciding it because it had been addressed by neither the Ninth Circuit nor the district court. Id. at -, 117 S.Ct. at 1589. In passing, however, the Supreme Court noted: “[o]rdinarily, a prayer for prospective relief will not ‘necessarily imply’ the invalidity of a previous loss of good time credits and so may properly be brought under § 1983.” Id. The type of prospective injunctive relief sought in Edwards — date-stamping witness statements— is, however, very different from that sought by Clarke in the ease at hand. See id. Indeed, unlike the sort of prospective relief envisioned by the Supreme Court in Edwards that may have only an “indirect impact” on the validity of a prisoner’s conviction, see Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir.1997), the type of prospective injunctive relief that Clarke requests in this case — a facial declaration of the unconstitutionality of the “no threats of legal redress” portion of Rule 3 — is so intertwined with his request for damages and reinstatement of his lost good-time credits that a favorable ruling on the former would “necessarily imply” the invalidity of his loss of good-time credits. See Edwards, 520 U.S. at -, 117 S.Ct. at 1587 (stating that “the nature of the challenge to the procedures could be such as necessarily to imply the invalidity of the judgment”).

An understanding of why Clarke’s facial challenge to Rule 3 and claims for damages and restoration of lost good-time credits are so intertwined that a favorable ruling on his facial challenge would “necessarily imply” the invalidity of his “conviction” comes from our opinion in Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112, 1119 (5th Cir.1987). In considering a challenge to the procedures employed in determining prisoner eligibility for parole, we explained that “[e]ven in some broad-based attacks, resolution of the factual allegations and legal issues necessary to decide the § 1983 claim may, in effect, automatically entitle one or more claimants to immediate or earlier release ... [s]uch claims must [ ] be pursued initially through habeas corpus.” Id. To determine whether resolution of a claim would automatically entitle a claimant to immediate release, Serio explained that the “court must consider the distinction between claims that would merely enhance eligibility for earlier release and those that would create entitlement to such relief.” Id.

A favorable ruling on the injunctive relief that Clarke requests — namely, that the “no threats of legal redress” portion of Rule 3 violates prisoners’ rights protected by the First Amendment — would be binding on state courts in a subsequent action. See Heck, 512 U.S. at 488 n. 9, 114 S.Ct. at 2373 n. 9 (“State courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues of federal law.”); Pilié & Pilié v. Metz, 547 So.2d 1305, 1308-10 (La.1989) (explaining the preclusive effect that Louisiana courts give to federal court judgments); see also Clayton-EL v. Fisher, 96 F.3d 236, 243 (7th Cir.1996) (“If Clayton-EL proved in a § 1983 action that the result of the disciplinary process was invalid, this proof would have preclusive effect in a state court habeas corpus action that challenged the recision of his good time credits.”); 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4468 (1981 & Supp. 1998). Because Clarke’s “conviction” stemmed from violation of the “no threats of legal redress” portion of Rule 3 — a determination that again would be binding on a state court in a subsequent action — the state court could only conclude that Clarke had been convicted of violating an unconstitutional rule. Conviction based on an unconstitutional rule is the sort of “obvious defect” that, when established, results in nullification of the conviction. See, e.g., Edwards, 520 U.S. -, 117 S.Ct. at 1588; Sheldon v. Hundley, 83 F.3d 231, 233 (8th Cir.1996). The state court thus would have no choice but to strike down Clarke’s punishment and reinstate his lost good-time credits; resistance by the state would be “ ‘an exercise in futility.’ ” Serio, 821 F.2d at 1119 (quoting Fulford v. Klein, 529 F.2d 377, 381 (5th Cir.1976), adhered to en banc, 550 F.2d 342 (1977)).

Therefore, Clarke’s request that the “no threats of legal redress” portion of Rule 3 be declared facially unconstitutional is so intertwined with his requests for restoration of lost good-time credits and damages that resolution of the issues necessary to determine whether the “no threats of legal redress” portion of Rule 3 violates the First Amendment would, in effect, if favorable, automatically entitle Clarke to reinstatement of his lost good-time credits. See id. As such, our determination would “necessarily imply” the invalidity of his punishment.² See Clayton-EL, 96 F.3d at 243; Sheldon, 83 F.3d at 234 (“Sheldon’s First Amendment claims are so entangled with the propriety of the disciplinary result, which triggered the loss of good-time credits, that ruling in Sheldon’s favor on ' First Amendment grounds would necessarily imply the invalidity of the disciplinary result and the lengthened sentence.”). Accordingly, because Clarke has not had his “conviction” reversed, expunged or otherwise declared invalid,³ his claim that the “no threats of legal redress” portion of Rule 3 is facially unconstitutional is not yet cognizable in a § 1983 action. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996). We express no opinion as to the constitutionality of the “no threats of legal redress” portion of Rule 3.

IV

The magistrate judge’s judgment in favor of Clarke on his claim that Rule 3 is facially unconstitutional is VACATED. We REMAND with instructions to dismiss this claim without prejudice to Clarke refiling this claim at such time as he can demonstrate that he has achieved the requisite relief. All portions of the panel opinion except for Part III and related portions of Part V are REINSTATED.

1 . At the time of the events in question, Rule 3 provided as follows:

Defiance (Schedule B): No prisoner shall commit or threaten physically or verbally to commit bodily harm upon an employee. No prisoner shall curse an employee or insult his family in the employee's presence. No prisoner shall threaten an employee in any manner, including threatening with legal redress during a confrontation situation (this does not mean telling an employee of planned legal redress outside a confrontation situation and certainly does not mean the actual composition or filing of a writ, suit, etc.; threatening to write to the Secretary, the Warden or other institutional officials is not a violation). No prisoner shall obstruct or resist an employee who is performing his proper duties. No prisoner shall try to intimidate an employee to make the employee do as the prisoner wants him to do.

2 . We also note that the converse is true — if we decided that Heck did not bar Clarke’s action, reached the merits of Clarke's claim and held that the "no legal redress” portion of Rule 3 did not violate the First Amendment, such a ruling again would have preclusive effect in state court, preventing Clarke from getting his good-time credits back, which he has consistently sought. See Dixon v. Chrans, 101 F.3d 1228, 1231 (7th Cir.1996) ("If a federal court were to decide — as the district judge did in this case-that his due process rights were not violated, that decision could also have preclusive effect in state court, possibly preventing Dixon from obtaining the one type of relief which is probably most important to him, or at least to most similarly situated prisoners — restoration of good time credits.”).

3 . In response to questioning at oral argument, both sides suggested that Louisiana courts recognize state collateral actions challenging prison regulations and seeking to recover lost good-time credits. See, e.g., Louisiana ex rel. Gallagher v. Louisiana, 462 So.2d 1221, 1230-33 (La.1985); Louisiana ex rel. Bickman v. Dees, 367 So.2d 283, 288-89 (La.1978); Bancroft v. Louisiana Dep't of Corrections, 635 So.2d 738, 740 (La.Ct.App.1994); Howard v. Louisiana Bd. of Probation and Parole, 589 So.2d 534, 535 (La.Ct.App.1991); Vincent v. Louisiana Through Dep't of Corrections, 468 So.2d 1329, 1332 (La.Ct.App.1985).