In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1302

ROBERT W. HUBER, JR.,

Plaintiff-Appellant,

v.

GLORIA ANDERSON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 16-CV-19-JPS — J.P. Stadtmueller, Judge.

____________________

ARGUED APRIL 18, 2018 — DECIDED NOVEMBER 26, 2018

____________________

Before WOOD, Chief Judge, and FLAUM and EASTERBROOK,

Circuit Judges.

WOOD, Chief Judge. In 1988, Robert W. Huber, Jr., pleaded 

guilty to making fraudulent credit card charges in the amount 

of $800. He spent the next 25 years either on probation or in 

prison for violating the terms of his probation. Yet Wisconsin 

had no lawful basis for extending his sentence beyond November 3, 1995. It took the state until 2014 to recognize this 

problem and to vacate his ongoing sentence.
2 No. 17-1302

After his release, Huber filed this action. He sued several 

state officials for his prolonged sentence and related wrongs. 

The district court granted the defendants’ motion for summary judgment, ruling that Huber had failed to bring most 

claims within six years of their accrual, as was then required 

under Wisconsin’s statute of limitations. The court ruled that 

some of Huber’s claims were timely, but it granted the defendants summary judgment on the merits of those claims. 

We conclude that Huber’s claims were timely and that summary judgment was premature on those that the district court 

reached. We therefore reverse in part, vacate in part, and remand for further proceedings.

I

A

Huber was sentenced in 1988 to four years’ probation for 

fraudulently using another man’s credit card. Three years 

were added to his probation because he failed to pay restitution. With that extension, his sentence should have ended on 

November 3, 1995. But it did not. In order to understand the 

confused course of events that followed, we must look at Huber’s less-than-stellar record on probation.

Huber fell into “absconder status” on May 19, 1993, and 

the state secured an apprehension request for him on January 13, 1994. Shortly thereafter, Gloria Anderson became Huber’s probation agent. In November 1994 Huber was arrested 

on the January apprehension request, but he was released 

four days later. On the day of his release, Anderson met with

Elizabeth Hartman, a Department of Corrections (DOC) Field 

Supervisor and Anderson’s supervisor. Hartman’s meeting 
No. 17-1302 3

notes indicated that Huber’s discharge date was still November 3, 1995. Under a section of her notes headed “Positive Adjustment” she wrote that there had been “no new charges,”

and under a section headed “Current Violations” she noted

“absconder since 5-19-93.” Despite his lengthy failure to report, the state did not attempt to revoke his probation, nor did 

it take any steps to “toll” the running of his probation sentence to prevent him from getting credit for the time while he 

was on the lam. After the November 1994 arrest, Huber began 

sporadically reporting to probation. In April 1995, Anderson 

wrote in Huber’s chronological case summary that his probation “has been extended 1x already—to discharge 11-3-95.” In 

her last log entry before the discharge date, Anderson wrote 

“no changes—all ok.”

November 3 came and went without any action: no release, no modification of Huber’s probation, no formal extension. Two weeks later, without any reference to her repeated 

notes acknowledging the November 3, 1995, release date, Anderson issued an apprehension request for Huber. He was arrested and jailed on that request in January 1996. While Huber 

was in jail, Anderson (along with Hartman) told him that his 

probation had been suspended from May 1993 to November 

1994. If that was true, there was outstanding time to be served. 

They instructed Huber to sign a “Request for Reinstatement”

of his probation. He complied, even though he now asserts 

that the form was blank at the time and later changed to read

as if Huber admitted to absconding as of May 19, 1993.

Equipped with Huber’s signature on the document, Anderson submitted a recommendation to Hartman to reinstate Huber’s probation and to suspend the sentence from May 19, 

1993, until his reinstatement. Hartman approved, and either 
4 No. 17-1302

Allan Kasprzak, who was the DOC’s Regional Chief for Milwaukee, or a deputy using Kasprzak’s signature stamp, issued the order of reinstatement, which continued Huber’s 

probation until July 1998.

Michael Walczak became Huber’s probation agent in 1998. 

By that time, Huber had again absconded, and so he was not 

earning credit toward his probation. He was arrested on another apprehension request in September 1999. Walczak recommended that Huber’s probation be reinstated, with the 

sentence on hold from April 1996, and so once again, Huber

was back on probation. For reasons immaterial to this case,

Walczak initiated probation revocation proceedings against 

Huber in October 2000. Those proceedings resulted in Huber’s receiving a ten-year prison sentence. Huber has alleged 

that Walczak doctored Huber’s case file before that revocation 

hearing, but this allegation also is immaterial for our purposes. 

While imprisoned, Huber made numerous efforts to overturn his sentence. He pursued administrative remedies and 

filed petitions in state and federal court. Nothing he did won 

his release, but during discovery for his federal petition he obtained a copy of the January 1996 Request for Reinstatement

that Anderson had him sign. That form provided the evidence 

Huber needed to show that Anderson had extended Huber’s 

probation after the state’s jurisdiction to do so had lapsed.

In June 2011, shortly before Huber’s term of imprisonment 

expired, Niomi Bock was assigned as Huber’s probation 

agent. According to Huber, after Bock’s appointment, Huber 

had a conference call with Bock, Kathy Walter (Bock’s supervisor), and his social worker. He explained why, in his view, 

the state no longer had jurisdiction to punish him. Huber’s 
No. 17-1302 5

social worker offered to fax documents corroborating Huber’s 

position to the DOC. Huber asked to meet with Bock, Walter, 

and the DOC’s counsel. Bock and Walter denied the requests. 

When Huber was released from custody in October 2011 he 

repeatedly told Bock why continuing his probation was unlawful; he begged her to review his supporting materials. 

Bock conferred with Walter about her professional obligations

in light of Huber’s statements. Walter told Bock that Bock’s 

duties extended no further than ensuring Huber’s compliance 

with his probation; Bock was not responsible for assessing the 

validity of Huber’s sentence. Walter did call Wisconsin’s Central Records Unit (“Records”), which she contends was the final authority for calculating sentences and discharge dates. A

Records agent confirmed that Huber was properly on probation. But Walter admitted that she never asked the Records

agent if the documents in the DOC’s internal management 

systems were the same as the records Huber had. 

Though no longer in prison, Huber had not abandoned his 

effort to vacate his sentence. He wanted to conduct research, 

but because of an unrelated conviction, he needed preapproval for computer usage. In October 2011, he sought approval to use a public library’s computers. After conferring 

with Walter, Bock denied the request. She told Huber, however, that if he came to the probation office, an agent would 

do the research for him for two hours. Huber tried this system 

on November 16, 2011, but he was frustrated when the agent 

stalled each time he asked her to find something. Worse than 

that, she left for 5- to 20-minute intervals. The only fruits of 

her “two-hour” assistance were the instructions for pro se Supreme Court filings. Huber could not print even that; all research had to be saved to a flash drive.
6 No. 17-1302

When Huber returned to the probation office the next day 

to collect the flash drive, Bock presented him with a consent 

form for sex-offender treatment (another condition of the unrelated conviction). Huber refused to sign unless his signature 

was marked as being “under protest” because, as he again 

told Bock, the DOC lacked jurisdiction over him. Bock reported the refusal to Walter, who considered it a breach of 

probation and had Huber arrested and searched. Agents

found an unapproved flash drive in his possession. After this 

incident, Walter initiated probation revocation proceedings.

A revocation hearing was held in March 2012. Huber argued that the DOC had lost jurisdiction in November 1995 

and presented supporting documentation. Bock testified that 

she was unaware of any 1995 order extending Huber’s probation. A record keeper from her office had looked for one in 

anticipation of the hearing but had come up empty. Nevertheless, the presiding ALJ ordered revocation. The Division of 

Hearings and Appeals affirmed. Huber then petitioned the 

Wisconsin Circuit Court for a writ of certiorari, seeking to vacate his sentence because the DOC had lost jurisdiction in November 1995. The Circuit Court granted the writ, but it concluded the factual record was underdeveloped, and so it remanded the case to the Division of Hearings and Appeals for 

further development. 

Following the Circuit Court’s order, Sandra Hansen, Walter’s replacement, and Sheri Hicks, the Department of Community Corrections Records Director, began investigating. By 

October 2013, they discovered that Huber had been right all 

along and that the error had not been uncovered because the 

state’s internal records systems did not accurately reflect that 

Huber’s probation had ended before Anderson’s January 1996 
No. 17-1302 7

Request for Reinstatement. Hansen notified the ALJ who had 

presided over Huber’s most recent revocation hearing of the 

error and asked that all of Huber’s probation revocations be 

vacated. Three days later, the Division of Hearings and Appeals vacated the revocations. Hicks then wrote to the Circuit 

Court, asking it to vacate Huber’s sentence. She attached the

order of the Division of Hearings and Appeals. Finally, in January 2014, the Circuit Court vacated Huber’s sentence, agreeing that the state had lost jurisdiction in November 1995.

B

Huber filed a federal complaint on January 6, 2016. The 

complaint, which alleged numerous constitutional violations,

named as defendants Anderson, Hartman, Kasprzak, 

Walczak, Bock, and Walter. Most claims survived a magistrate

judge’s screening order. Both sides then moved for summary 

judgment. The district court ruled that Wisconsin’s six-year 

statute of limitation barred most of Huber’s claims, including:

• the Eighth Amendment claims against Anderson,

Hartman, Kasprzak, and Walczak;

• the failure-to-intervene claims against Bock and Walter;

• the First Amendment retaliation claim against 

Walczak;

• the access to the court claim against Walczak; and

• the denial of the right to vote claims against all defendants. 

For the remaining claims, the district court granted summary 

judgment to the defendants on the merits. Those included:
8 No. 17-1302

• the Eighth Amendment claims against Bock and Walter; and

• the access-to-court claims against Bock and Walter. 

Huber appeals each part of the district court’s judgment.

II

Though the district court dismissed many of Huber’s 

claims as untimely, Wisconsin reasserts a timeliness defense 

only for Huber’s Eighth Amendment claims against Anderson, Hartman, Kasprzak, and Walczak. As for the rest, Wisconsin concedes the error of the district court’s ruling. Because a timeliness defense to a section 1983 claim is not jurisdictional, see Smith v. City of Chicago Heights, 951 F.2d 834, 839 

(7th Cir. 1992), we consider the timeliness only of the claims 

that are still contested on that ground.

An action under 42 U.S.C. § 1983 must be brought within 

the statute of limitations for personal injuries supplied by the 

state in which the claim arose. Wallace v. Kato, 549 U.S. 384, 387

(2007). This case comes to us from Wisconsin, where the limitations period at the time Huber filed this action was six years.

See Wis. Stat. § 893.53 (2016), amended by 2017 Wis. Act 235 

(eff. Apr. 5, 2018) (reducing applicable statute of limitations 

from six to three years). While we borrow the state’s limitations period, federal law determines the action’s accrual date. 

It instructs that accrual occurs when “the plaintiff has ‘a complete and present cause of action,’ ... that is, when ‘the plaintiff can file suit and obtain relief.’” Wallace, 549 U.S. at 388

(quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund 

v. Ferbar Corp. of Cal., Inc., 522 U.S. 192, 201 (1997)). Because

“habeas corpus is the exclusive remedy for a state prisoner 

who challenges the fact or duration of his confinement and 
No. 17-1302 9

seeks immediate or speedier release,” Heck v. Humphrey, 

512 U.S. 477, 481 (1994), any section 1983 action challenging 

the fact or length of confinement does not accrue until the underlying confinement has been invalidated through a direct 

appeal, post-conviction relief, or some other means. Id. at 486–

87, 489–90.

This case calls for no more than a simple application of 

Heck’s rule. Invoking the Eighth Amendment, Huber alleges

that defendants, through their deliberate indifference, unlawfully prolonged his custody. Had Huber tried to file this action before January 2014, he would have been blocked by 

Heck. His claim did not accrue until the Circuit Court invalidated his sentence. Huber filed this action in 2016, well within

Wisconsin’s six-year statute of limitations (and also within its

new three-year period). 

Wisconsin suggests, however, that Huber could have 

brought his Eighth Amendment claims between November 

1995 and February 2001, and thus they accrued long before 

January 2014. It argues that during that window, a section 

1983 action would not have necessarily implied “the invalidity of his conviction or sentence” but rather “merely implie[d]

that through [defendants’] alleged error, Huber’s probationary term was mistakenly extended.” This position suffers 

from two problems: most importantly, it betrays a serious 

misunderstanding of Heck; and secondarily, it overlooks Huber’s repeated (though at times misguided) efforts to correct 

the problem.

The main point the state is trying to make is unclear. If it 

is contending that Huber could have brought a section 1983 

action before February 2001 because he had not yet been sentenced to a term of imprisonment, that argument runs afoul of 
10 No. 17-1302

Heck’s underlying principle: in any case in which habeas corpus is available, it is the prisoner’s exclusive remedy. 512 U.S. 

at 481. And habeas corpus is available to anyone in custody, 

probationers included. See Maleng v. Cook, 490 U.S. 488, 491 

(1989); Jones v. Cunningham, 371 U.S. 236, 242 (1963). There 

was no time after the initial 1995 mistake when Huber was not 

in custody until his ultimate vindication in 2014, and so his 

only remedy during that period was habeas corpus. Alternatively, if the state means to assert that Heck would not have 

barred a pre-2001 action because such an action would not 

have challenged a court-ordered sentence, then its argument 

self-destructs on the basis of Edwards v. Balisok, 520 U.S. 641, 

646–48 (1997) (ruling that a prisoner could not bring a section 

1983 action that necessarily implied the invalidity of prison 

disciplinary proceedings). Balisok holds that Heck’s rule extends to a section 1983 action that necessarily assails administrative deprivations of liberty. It is thus immaterial that the 

reason why Huber’s probation was extended between November 1995 and February 2001 may have been inadvertence; 

the key fact is that his custody was continuous. 

Nor is the defendants’ comparison of this case to Wallace

v. Kato, supra, apt. While Heck’s bar is inapplicable to a section 

1983 action that would call into question only a future conviction or anticipated custody, see 549 U.S. at 393, Huber’s 

Eighth Amendment claim seeks redress for unlawful custody 

that began in November 1995. Had he brought the present 

case between 1995 and 2001, he would not have been attacking the possibility of unlawful future confinement, as in Wallace. See id. Rather, his claim would have challenged his prolonged probation and would have been barred under Heck.
No. 17-1302 11

We recognize that many of Huber’s claims relate to events 

that are now more than 20 years in the past. But that is a natural consequence of the Heck rule. And this is not a situation 

in which the doctrine of laches has any role to play. As our 

account of Huber’s saga illustrates, he did try to contest his 

custody, but he was acting pro se and did not know what steps 

he needed to take. He did not sit on his rights. If wrongful 

custody lasts for a long time, then Heck will require both parties to litigate over dated civil claims. That is simply the price 

of the Heck doctrine, which normally ensures that civil litigation does not undermine the basis of criminal convictions and 

sentences.

III

Wisconsin asks in the alternative that we affirm the grant 

of summary judgment for each of Huber’s claims on the merits. For the claims disposed of as untimely we will not do so. 

In the interest of orderly proceedings, the district court should 

be the first stop. We will, however, review the arguments 

about the claims already disposed of on the merits.

A

There is no longer any dispute that Huber’s custody was 

unlawfully prolonged. Huber urges that this amounted to a 

violation of his Eighth Amendment rights. In order to defeat 

the defendants’ summary judgment motion, he had to bring 

forth evidence that would permit a trier of fact to conclude 

that his protracted sentence was the product of deliberate indifference on the part of one or more of the defendants. Figgs 

v. Dawson, 829 F.3d 895, 902 (7th Cir. 2016). That standard “re-
12 No. 17-1302

quires more than negligence or even gross negligence; a plaintiff must show that the defendant was essentially criminally

reckless, that is, ignored a known risk.” Id.

Most of the defendants prevailed on the statute of limitations ground we already have rejected; this includes Anderson, Walczak, Hartman, and Kasprzak. The situation of Bock 

and Walter is different. In their cases, the court found that Huber had not presented enough evidence on the merits to defeat the summary judgment motion. For those two, Figgs is 

our most instructive precedent. 

In Figgs, the plaintiff complained to two prison officials—

a recordkeeper and the warden—that he was being held past 

his actual release date because of an error in the state’s paperwork. Id. at 899–900. He sued each official, alleging that their 

deliberate indifference to his complaints violated his Eighth 

Amendment rights. Id. at 902. We ruled that Fishel, the record 

keeper, was not entitled to summary judgment. Id. at 904. 

Though Fishel had investigated the accuracy of Figgs’s assertion, we concluded that a trier of fact could find her investigation to be “so ineffectual that it rose to the level of criminal 

recklessness and thus constituted deliberate indifference.” Id.

at 905. Upon learning of Figgs’s complaint, Fishel reviewed

some of the documents stored in the on-site master file, contacted the DOC’s central record keeping office to confirm 

Figgs’s sentence, and sent the central record-keeping office 

part of Figgs’s master file for its review. Id. at 900–01. But 

Fishel knew that Figgs was complaining about inaccurate record keeping that could be revealed only by close inspection of 

the full master file. Id. at 904. In the face of that knowledge, 

she neither undertook such a review nor provided the central 

record-keeping office the information needed to discover the 
No. 17-1302 13

error. Id. Conversely, we found that Dawson, the prison’s 

warden, was entitled to summary judgment. Id. at 903. After 

he became aware of Figgs’s complaint, Dawson consulted

Fishel and relied on her calculation. Id. at 903. That was a reasonable step for someone in his position, in light of the general 

rule that prison administrators may rely on staff to perform 

specifically delegated functions. Id. at 903–04.

Wisconsin asserts that Bock and Walter are more comparable to Dawson than to Fishel. It reasons that each defendant

did all that her job required: Bock elevated the issue to Walter, 

and Walter contacted the central records unit. But that description leaves out critical facts. Huber, like Figgs, was not 

complaining about an administrative or arithmetic error. Verifying his complaint necessitated a close inspection of documents in his file. Bock did not need to guess that this was the 

case: Huber told her, repeatedly. Huber repeatedly offered to 

give Bock the corroborating documents or to direct her where 

to look. Yet she averted her eyes from the substantiating information. Nor is Walter’s call to the central records unit conclusive, because she failed to ask the representative to compare the DOC’s internal documents to the sequence of events 

Huber described or even to call the representative’s attention 

to the documents Huber referenced. Without that alert, the 

records representative could not have been expected to identify the alleged error. 

A juror could conclude that despite knowing the nature of 

Huber’s complaint, Bock and Walter performed an investigation that was no more likely to confirm or disprove the legality of Huber’s detention than Fishel’s investigation was for 

Figgs. We are not saying that a jury would be required to view 

the facts this way, but a reasonable jury could find deliberate 
14 No. 17-1302

indifference here. Indeed, some facts in the record suggest

that final responsibility for the accuracy of Huber’s sentence 

did not reside with the central records unit. Construing facts 

and inferences in Huber’s favor, as we must at this stage, Walter’s failure to bring the complaint to the proper authority exhibited deliberate indifference. Huber’s Eighth Amendment 

claims against these defendants therefore are not suitable for 

dismissal at summary judgment. 

B

The district court also dismissed on the merits Huber’s 

claims that Bock and Walter violated his right of access to the 

court. But in doing so, the court incorporated the elements of 

a retaliation claim. The magistrate judge’s screening order

had allowed only the access-to-court claims to proceed, on the 

notion that the retaliation claims were “captured in the accessto-the-courts claim[s] that he is being permitted to pursue.” 

The district court construed that order to say that Huber’s access-to-court claims against Bock and Walter were in essence

retaliation claims. It then looked for evidence that Bock or 

Walter had retaliated against Huber. Finding none, it granted 

summary judgment. 

The problem here is a legal one. Huber’s access-to-court 

claim was distinct from his retaliation claim. The phrasing 

that the magistrate judge chose may have obscured this fact. 

There is an independent constitutional right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 828 (1977). For 

people in custody, that might require providing access to legal materials needed to research both the law and facts that 

might support a cause of action. Brooks v. Buscher, 62 F.3d 176, 

179 (7th Cir. 1995). If restricting access too severely frustrates 

the pursuit of an independent, non-frivolous legal right, then 
No. 17-1302 15

there is a violation of the right of access to the court. Lehn v. 

Holmes, 364 F.3d 862, 868 (7th Cir. 2004). Alternatively, if a 

person is denied access to research materials in retaliation for 

filing grievances, for instance, there is an independent retaliation claim. On remand, the district court must sort out these 

two theories. In addition, it should consider whether the defendants are entitled to immunity for positions they took in 

litigation during the administrative proceedings, or if something along the lines of Brady v. Maryland, 373 U.S. 83 (1963), 

might furnish the basis for liability, if or to the extent that Huber is asserting that the defendants withheld exculpatory materials from the decision-makers. 

IV

Huber’s claims are old, but because of Heck old does not 

necessarily mean untimely. The district court should not have 

dismissed any of Huber’s claims as having been filed outside 

the governing limitations period. Moreover, dismissal of the 

four claims that were considered on the merits was premature. We therefore REVERSE the grant of summary judgment in 

favor of Bock and Walter on Huber’s Eighth Amendment 

claims, VACATE the grant of summary judgment on all other 

claims, and REMAND for further proceedings. We DENY Huber’s request to assign this case to a different district court 

judge pursuant to Circuit Rule 36.