# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 20, 2018 *

Decided September 25, 2018

Before

ILANA DIAMOND ROVNER, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

AMY J. ST. EVE, Circuit Judge

No. 18

‐ 1585

GARY JACKSON, SR., and

LORIE JACKSON,

Plaintiffs

‐ Appellants

,

v

.

BRUCE LEMMON, et al.,

Defendants

‐ Appellees

. Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:16

‐ cv

‐ 2551

‐ WTL

‐ MPB

William T. Lawrence,

J udge

.

O R D E R

Gary Jackson, a sex offender who groped his teenage daughter, has sued

members of the Indiana Parole Board under 42 U.S.C. § 1983 for imposing a parole

condition that prohibited him from contacting her. The district court ruled for the

* We have agreed to decide this case without oral argument because the briefs

and record adequately present the facts and legal arguments, and oral argument would

not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp

. P. 32.1No. 18

‐ 1585 Page 2

defendants. Because Jackson may not challenge this condition in a § 1983 suit, and the

defendants would be entitled to qualified immunity in any case, we affirm.

Jackson sexually assaulted his teenage daughter. After consuming alcohol, he

grabbed her breast when she got out of the shower. He later pleaded guilty in Indiana

state court to engaging in sexual misconduct with a minor. That court sentenced him to

a total of six years of home detention and probation. As stipulated in his plea

agreement, Jackson was barred from contact with his daughter, “subject to modification

[when she] turns 16 if [she] so agrees.” Jackson later violated a different condition of

probation, and he was imprisoned.

Jackson eventually was released from prison on parole, where he was subject to

27 “stipulations” on a state form listing parole conditions for sex offenders.

Stipulation 4 has two variations. Stipulation 4(A) restricts the offender from touching,

photographing, corresponding with, or talking to “any child, including your

... children” (emphasis added). Stipulation 4(B) has the same restrictions, but applies to

“any child, except your ...children” (emphasis added). For Jackson, the Parole Board

selected 4(A). Jackson also had to wear a location

‐ monitoring device.

Dissatisfied with his conditions while on parole, Jackson filed this § 1983 suit. He

sued members of the Indiana Parole Board and other state employees in their official

capacities and “individually,” as well as various Indiana state departments. (We

liberally construe his pro se complaint as suing the individual defendants in both their

personal and official capacities. See Erickson v. Pardus

, 551 U.S. 89, 94 (2007).) Jackson

principally challenges the parole condition that prohibited contact with his daughter.

He contends that it was substantively unreasonable and procedurally defective because

the Parole Board imposed it without first assessing whether his background

necessitated it. Jackson’s wife, also a plaintiff, alleges that the conditions on her

husband burdened her indirectly.

Months after filing his complaint in federal court, Jackson raised a similar

challenge in Indiana state court. He returned to the court that adjudicated his criminal

case and asked it to “order the Government to enforce its plea agreement terms” so he

could “have contact with his minor relatives.” The Indiana court denied that motion.

Because Jackson filed his federal suit before he filed his motion in state court, his federal

suit is not an appeal of a state

‐ court judgment, and thus it is not barred by the

Rooker

‐ Feldman doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp.

, 544 U.S. 280,

284 (2005); Kowalski v. Boliker

, 893 F.3d 987, 995 (7th Cir. 2018).No. 18

‐ 1585 Page 3

The district court narrowed the scope of the suit. It first dismissed Jackson’s

wife’s claims for lack of standing because her claims impermissibly rested on the legal

rights of a third party—her husband. See Warth v. Seldin

, 422 U.S. 490, 505 (1975);

United States v. Diekemper

, 604 F.3d 345, 350 (7th Cir. 2010)

. It later entered summary

judgment against Jackson. The court reasoned that (1) because Jackson’s parole term

had ended by the time it ruled on the motion for summary judgment, his request for

injunctive relief was no longer relevant; (2) he could not recover money from the

official

‐ capacity state defendants or the state agencies, see Will v. Michigan Dept. of State

Police, 491 U.S. 58, 65–67 (1989); and (3) Jackson received adequate process before his

parole agent required location monitoring. Jackson and his wife raise no credible attack

on these rulings, so they warrant no further discussion.

The court made two more rulings that form the basis of this appeal. First, citing

Williams v. Wisconsin

, 336 F.3d 576 (7th Cir. 2003), the court dismissed Jackson’s

challenge to Stipulation 4(A) because, it reasoned, Jackson should have attacked the

condition in a petition under 28 U.S.C. § 2254, rather than in a § 1983 suit. Second, it

ruled that the officials whom Jackson sued (and the others whom he has proposed to

sue) in their personal capacities are entitled to absolute or qualified immunity.

On appeal, Jackson renews his challenges to the parole condition denying him

contact with his daughter. He raises two arguments. First, he maintains that this

condition contradicted his plea agreement, under which he was able to communicate

with her if she wanted. Second, he contends that before selecting Stipulation 4(A)

over 4(B), due process required that the Parole Board assess whether his background

required that he have no contact with her. If it had done so, he continues, the Board

would have permitted the same conditional contact with his daughter as his plea

agreement had allowed.

Jackson may not challenge his parole condition or how it was imposed in a

§ 1983 suit for damages. Because parole is a form of custody, a challenge to a parole

condition is a challenge to the “perimeters of [his] confinement” and so must be

brought as a collateral attack. See Williams

, 336 F.3d at 579–80 (citing Preiser v. Rodriguez

,

411 U.S. 475 (1973)); see also Tobey v. Chibucos

, 890 F.3d 634, 651 (7th Cir. 2018) (ruling

conditions of probation must be challenged through habeas petition). Jackson is not on

parole anymore, so a collateral attack is not available. But his challenge is barred

nevertheless because at the time he filed this § 1983 suit, he could have pursued a

collateral attack. See Burd v. Sessler

, 702 F.3d 429, 435–36 (7th Cir. 2012). And he never

even tried to do so, unlike the plaintiff in Whitfield v. Howard

, 852 F.3d 656, 662 (7th Cir.No. 18

‐ 1585 Page 4

2017) (permitting released, former prisoner to attack revocation of his good

‐ time credits

through § 1983 suit in part because he had pursued collateral relief while confined).

Jackson asks us to overturn cases like Williams

, but he does not argue why we should.

Jackson responds, unpersuasively, that Williams does not apply because he views

his challenge as purely procedural: he faults the Parole Board for not considering his

background before forbidding contact with this daughter. Citing Wilkinson v. Dotson

,

544 U.S. 74, 81–82 (2005), he reasons that if his procedural argument succeeds, he would

not “necessarily demonstrate the invalidity of confinement or its duration,” so his suit

under § 1983 is permissible.

This argument has two fatal problems. First, unlike the case in Wilkinson,

Jackson’s challenge is not purely prospective. There, plaintiffs sued under § 1983 to

enjoin as procedurally flawed the rules governing their parole eligibility and suitability.

If successful, they would not have received damages, but only further consideration of

their parole applications, which could have resulted in a favorable outcome. Wilkinson

,

544 U.S. at 82. By contrast, Jackson seeks more than prospective relief, a distinction from

Wilkinson that we have previously ruled to be significant. See Burd

, 702 F.3d at 432–33.

Instead, he contends that he is entitled to damages precisely because, with more

process, the defendants would have released him from the contested condition. Thus,

unlike in Wilkinson

, a victory for Jackson would “necessarily demonstrate the

invalidity” of his conditions of confinement on parole.

Second, even if Wilkinson applied, Jackson runs into the problem of immunity. To

overcome qualified immunity, Jackson must show that the defendants violated “clearly

established” law. Ziglar v. Abbasi

, 137 S. Ct. 1843, 1866 (2017). To meet his burden,

Jackson relies on two decisions dealing with the same criminal defendant: Bleeke v.

Lemmon, 6 N.E.3d 907 (Ind. 2014), and Bleeke v. Server

, 2010 WL 299148 (N.D. Ind.

Jan. 19, 2010).

Neither decision helps him. Bleeke was sentenced to prison for attempted

criminal deviate conduct; his victim was an adult woman who was not his daughter.

6 N.E.3d at 912. Bleeke challenged a parole condition that prohibited contact with his

children. Id. at 914. Without deciding any federal question, the Indiana Supreme Court

ruled that the condition violated Indiana law as applied to Bleeke. See id. at 919–21.

Therefore, that decision says nothing about federal rights. Before the Indiana court

ruled, a federal district judge wrote in an unpublished decision that this condition

violated due process because Bleeke’s victim was not a child, let alone one of his

children. Bleeke

, 2010 WL 299148, at *13. That ruling is both nonprecedential andNo. 18

‐ 1585 Page 5

distinguishable (because Jackson’s victim was his child), so it too could not have

“clearly established” a federal right that applies here. See Ashcroft v. al

‐ Kidd

, 563 U.S.

731, 741–42, (2011); Boyd v. Owen

, 481 F.3d 520, 527 (7th Cir. 2007). Because the

defendants are thus entitled to qualified immunity, we need not address the issue of

absolute immunity. See Taylor v. Reilly

, 685 F.3d 1110, 1113 (D.C. Cir. 2012).

The judgment of the district court is AFFIRMED.