Opinion
Case No. 02 C 1868
April 22, 2002
ORDER
The court finds that plaintiff Derek L. Swopes, a prisoner confined at Danville Correctional Center, is unable to prepay the filing fee. The court grants Swopes's motion to proceed in forma pauperis and assesses an initial partial filing fee of $51.60 pursuant to 28 U.S.C. § 1915(b)(1). The trust fund officer at Swopes's current place of incarceration is ordered to collect, when funds exist, the partial filing fee from Swopes's trust fund account and pay it directly to the clerk of court. Thereafter, the trust fund officer at the correctional facility where Swopes is confined is directed to collect monthly payments from Swopes's trust fund account in the amount of 20% of the preceding month's income credited to the account. Monthly payments collected from Swopes's trust fund account shall be forwarded to the clerk of court each time the account balance exceeds $10 until the full $150 filing fee is paid. Separate deductions and payments shall be made with respect to each action or appeal filed by Swopes. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, IL 60604, attn: Fiscal Dept., and shall clearly identify Swopes's name and the case number assigned to this action. The clerk shall send a copy of this order to the trust fund officer at Danville Correctional Center.
Under 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a suit brought in forma pauperis at any time if the court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.
Swopes alleges that on August 9, 2000, two investigators from the Internal Affairs Office, Lieutenant Brown and Correctional Officer Parks, asked him to aid in an investigation of another correctional officer. They assured Swopes that if he cooperated, no disciplinary action would be taken against him and he would receive a lateral transfer for his safety. Swopes gave the investigators allegedly involuntary statements, submitted to a polygraph examination, and was thanked for his cooperation. Swopes was transferred to Dixon Correctional Center on August 11, 2000. On August 15, 2000, he was issued a disciplinary report charging him with sexual misconduct. The report was written by the investigators, who allegedly gave false information. The Adjustment Committee, at a hearing conducted by Lieutenant Daniels and Staff Member Miles, found Swopes guilty based on the false information in the report and revoked one year of good time, demoted him to C grade for one year, gave him one year of segregation, and transferred him to Pontiac Correctional Center. Warden Stern signed off on the report. Swopes grieved the report. After a October 27, 2000 hearing, the Administrative Review Board recommended that the grievance be denied. Donald Syder, Director of the Illinois Department of Corrections, concurred in the Board's recommendation.
On March 12, 2002, Swopes filed this complaint against defendants Snyder, Stern, Brown, Parks, Daniels, and Miles, alleging violations of the Eighth and Fourteenth Amendments to the United States Constitution. Under 42 U.S.C. § 1983, Swopes seeks money damages and an injunction directing his immediate release from custody.
In Edwards v. Balisok, 520 U.S. 641, 648 (1997), the Supreme Court held that damage claims in prison disciplinary proceedings where success would necessarily imply the invalidity of the punishment imposed are not cognizable under section 1983 unless the finding of the Adjustment Committee is overturned in some manner. Of relevance here are two wrongs alleged by Swopes: (1) Brown's and Parks's false promise that cooperation with the investigation would not subject Swopes to disciplinary action; and (2) the false information in the disciplinary report that each of the defendants either prepared or relied upon. The court will consider these claims in reverse order.
Swopes also alleges that his requests for documents pertinent to his defense were wrongfully denied. The court perceives no basis on which to dismiss this claim at this preliminary stage.
If information in the disciplinary report were in fact falsified, then punishment based on that information would necessarily be invalid. Cf. Williams v. Schario, 93 F.3d 527, 529 (8th Cir. 1996) (holding that claims of malicious prosecution and perjured testimony would necessarily imply invalidity of conviction or sentence). Swopes alleges that the Adjustment Committee found him guilty based on falsified information in the investigative and disciplinary reports prepared by Brown and Parks. The Adjustment Committee Summary confirms that the basis of its decision was the disciplinary report and polygraph examination results. (Notably, the summary also suggests that Swopes at that time confirmed the truth of the disciplinary report.) Swopes is therefore barred from raising this claim unless and until he shows his disciplinary punishment "has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486 (1994). The Adjustment Committee's finding has not been so invalidated. Accordingly, this claim is dismissed without prejudice.
It might be possible to maintain an independent section 1983 claim for at least nominal damages based on falsified information if that information was not crucial to the decision, see infra, but that is not what Swopes alleges here.
Swopes's claim based on the false promise of immunity by Brown and Parks stands on surer footing. In effect, Swopes is alleging that his confession was coerced and involuntary. Because the harmless error doctrine applies to coerced confessions, see Arizona v. Fulminante, 499 U.S. 279, 310-11 (1991), a successful coerced confession claim does not necessarily demonstrate the invalidity of a conviction. Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996). For this reason, the Eighth Circuit has held that a coerced confession claim is not barred by Heck. Id. This court is aware of no published Seventh Circuit opinion on this precise point, but the Seventh Circuit's approach to false arrest, unlawful search, and excessive force claims strongly suggests that it would follow the Eighth Circuit. See Copus v. City of Edgerton, 151 F.3d 646, 648-49 (7th Cir. 1998) (suspect may be properly convicted despite having suffered unlawful arrest or search); Washington v. Summerville, 127 F.3d 552, 556 (7th Cir. 1997) (applying same analysis to excessive force claim). The reasoning of these cases applies with equal force to involuntary confession claims. Swopes's confession claim is therefore not barred by Edwards and Heck.
The strongest counter-argument is that admission of the statements Swopes made in reliance upon Brown's and Parks's false promises (along with Swopes's affirmation that those statements were true) could not have been harmless error in this case because those statements were the only evidence considered by the Adjustment Committee. Cf. Apampa v. Layng, 157 F.3d 1103, 1105 (7th Cir. 1998) ("The fact that some evidence used in a trial is tainted by illegality does not necessarily undermine the conviction, given the presence of other evidence and the limitations of the exclusionary rule."). The Seventh Circuit, however, has specifically rejected an as-applied approach to Heck in the case of unlawful searches or arrests. See Copus, 151 F.3d at 648 ("Fourth Amendment claims for unlawful searches or arrests do not necessarily imply a conviction is invalid, so in all cases these claims can go forward.") (emphasis added); Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 897-98 n. 7 (7th Cir. 2001) (quoting this passage from Copus and explaining that the "categorical approach" expressed therein survived Edwards, even while recognizing that other circuits employ a "fact-sensitive method").
To be sure, Heck prohibits Swopes, unless and until the disciplinary punishment has been invalidated, from recovering damages under section 1983 for the punishment itself. This means that Swopes may not at this time recover damages for the revocation of his good time credits or for the imposition of segregation status. To the extent Swopes seeks to shorten his sentence of incarceration, his exclusive federal remedy is habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973). This court may not sua sponte convert a section 1983 action into a petition for habeas. Copus v. City of Edgerton, 96 F.3d 1038 (7th Cir. 1996) (per curiam). But Swopes also seeks $65,000 for the violation of his constitutional rights. The defendants are not entitled to absolute immunity. See Redding v. Fairman, 717 F.2d 1105, 1117 (7th Cir. 1983). This claim survives.
As explained above, the court dismisses this action in part for failure to state a claim on which relief may be granted. This partial dismissal should not be counted as a "strike" under 28 U.S.C. § 1915(g). See Powells v. Minnehaha County Sheriff Dep't, 198 F.3d 711, 713 (8th Cir. 1999); Moore v. Doan, No. 98 C 2307, 1998 U.S. Dist. LEXIS 19624, at *14 (N.D.Ill. Dec. 8, 1998) (dismissing a claim from a case is not dismissing an "action" under section 1915(g)).