In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1728

ALEX GILBERT,

Plaintiff-Appellant,

v.

TIMOTHY COOK, NIGEL PHELPS, and KEVIN WALKER,

Defendants-Appellees.

___________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-286-CJP—Clifford J. Proud, Magistrate Judge.

____________

ARGUED DECEMBER 6, 2007—DECIDED JANUARY 9, 2008

____________

Before EASTERBROOK, Chief Judge, and CUDAHY and

RIPPLE, Circuit Judges.

EASTERBROOK, Chief Judge. Heck v. Humphrey, 512

U.S. 477 (1994), holds that the plaintiff in an action under

42 U.S.C. §1983 may not pursue a claim for relief

that implies the invalidity of a criminal conviction, unless

that conviction has been set aside by appeal, collateral

review, or pardon. Edwards v. Balisok, 520 U.S. 641

(1997), extends this doctrine to the decisions of prison

disciplinary tribunals. A magistrate judge, presiding by the

parties’ consent in this action under 42 U.S.C. §1983,

concluded that Heck and Edwards prevent the plaintiff

from introducing evidence about what happens after the

events that have been the subject of the prior adjudication.
2 No. 05-1728

Alex Gilbert was an inmate at Tamms Correctional

Center in Illinois during March 1999. His account of what

defendants (three guards) did is disputed. Because the

magistrate judge blocked the jury from hearing Gilbert’s

full story, we must summarize things from his perspective, and the reader must bear in mind that the guards

have a different version. Details are irrelevant for current purposes; we give an outline.

As the guards escorted a handcuffed and shackled

Gilbert up the stairs toward his cell, they tripped him.

After returning Gilbert to his cell, the guards closed the

door and told him to place his arms through the chuckhole,

an opening that can be used to cuff and uncuff prisoners’

hands while their limited mobility reduces the risk of

violence to the guards. A prison disciplinary board found

that Gilbert was nonetheless able to punch one of the

guards while they were removing his cuffs. Given Heck

and Edwards, Gilbert is bound by this finding. (The

board revoked a year’s worth of Gilbert’s good-time

credits; he could have sought review under 28 U.S.C. §2254

but did not.) The guards raised the ante by wrenching

Gilbert’s left arm, using it as a lever and the edge of the

chuckhole as the fulcrum. That violence separated

Gilbert’s shoulder (causing excruciating pain) and scraped

off about six inches of skin (causing more pain and a

prominent scar). Gilbert contends that this on-the-spot

corporal punishment violates the eighth amendment.

Gilbert denies striking anyone. He would like to tell a

jury his story—that the guards tripped him in the stairwell and continued the assault through the chuckhole,

all without provocation. In response to the magistrate

judge’s insistence that he not contradict the board’s

decision, however, Gilbert attempted to present his

claim without either contesting or accepting the board’s

finding. Given the board’s (incontestable) finding, Gilbert

had to argue that the guards wrenched his arm out of its
No. 05-1728 3

socket in retaliation for an act that Gilbert neither concedes nor denies. This would be a difficult task for a

lawyer and was even more difficult for a poorly educated

layman—as Gilbert, who has been in prison since he

was 14, could not find a lawyer willing to represent him,

and the magistrate judge declined to recruit counsel on his

behalf. Gilbert’s struggle to proceed without confessing

that he had punched a guard frustrated the magistrate

judge; the judge’s effort to enforce the rule of Heck and

Edwards frustrated and confused Gilbert.

Eventually the magistrate judge directed Gilbert not

to present any evidence about what happened after he

reached the top of the stairs (which is to say, after he

returned to his cell). That ruling effectively gave judgment for the defendants as a matter of law (see Fed. R.

Civ. P. 50), because, without evidence of what happened

after he placed his arms in the chuckhole, Gilbert could

not show that the guards laid a finger on him. Gilbert

rested his case without being allowed to present the bulk

of his evidence, and the magistrate judge then formally

granted the defendants’ Rule 50 motion.

If Gilbert had been willing to concede that he had

punched a guard, he would have had clear sailing. Like

the law of issue and claim preclusion, Heck prevents a

litigant from contradicting a valid judgment. A contention

that a guard struck back after being hit is compatible

with Heck. Otherwise guards (and for that matter any

public employee) could maul anyone who strikes them,

without risk of civil liability as long as the private party

is punished by criminal prosecution or prison discipline

for the initial wrong. One major function of the due process clause is to ensure that a wrongdoer’s punishment

comes after a hearing, rather than being meted out on the

spot by a public official’s fists or weapons. A prison

disciplinary panel lacks authority to prescribe, as the

punishment for striking a guard, a separated shoulder
4 No. 05-1728

and a gash in a prisoner’s arm; guards who are dissatisfied by the slow pace and (it may seem to them) light

punishments available through the formal disciplinary

apparatus have no right to take matters into their own

hands by beating their charges. Just as Wallace v. Kato,

127 S. Ct. 1091 (2007), holds that Heck does not affect

litigation about police conduct in the investigation of a

crime, so we hold that Heck and Edwards do not affect

litigation about what happens after the crime is completed.

Public officials who use force reasonably necessary to

subdue an aggressor are not liable on the merits; but

whether the force was reasonable is a question that may

be litigated without transgressing Heck or Edwards. See

VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006).

Is a plaintiff’s confession to his own offense—a confession that might facilitate a criminal prosecution on top of

the prison discipline—a precondition to a civil remedy

against public officials who respond with excessive force?

The magistrate judge thought so, relying principally on

Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003). But

Okoro did not maintain an agnostic position toward his

conviction; he advanced a claim that could not succeed

unless the conviction was invalid. Despite being convicted of selling drugs to an undercover officer, Okoro

maintained that he had been trying to sell, not drugs, but

jewels, which the police stole. He demanded the return of

the gems or damages in their stead. That argument was

incompatible with his conviction. Although Okoro might

have tried to argue that he offered both drugs and gems,

and that the officers bought the former while stealing

the latter—or that he sold drugs on one occasion while

offering jewels on another—he insisted that his inventory was jewelry and nothing else. A plaintiff “is master

of his ground,” 324 F.3d at 490, and having chosen a

ground that could not be reconciled with his conviction

Okoro had to lose, we concluded.
No. 05-1728 5

An argument along the lines of “The guards violated my

rights by injuring me, whether or not I struck first” does

not present the sort of inconsistency that doomed Okoro’s

suit. To put Gilbert’s claim this way is to show that his

success would not imply the invalidity of the decision

revoking his good-time credits. Only a claim that “necessarily” implies the invalidity of a conviction or disciplinary

board’s sanction comes within the scope of Heck. See

Nelson v. Campbell, 541 U.S. 637, 647 (2004) (stressing

the importance of “necessarily” in stating the rule of

Heck). See also McCann v. Neilsen, 466 F.3d 619 (7th Cir.

2006).

There remains the fact that Gilbert encountered difficulty adhering to an agnostic posture on the question

whether he had hit a guard. Gilbert told the judge that

he anticipated that one of his witnesses would testify

that the chuckhole’s size and location makes it impossible

for a prisoner to punch anyone outside the cell. The

magistrate judge saw as the last straw Gilbert’s reference to “the alleged punch” when questioning a guard

about his location during the incident. Yet the judge did

not find that Gilbert violated his orders by phrasing his

question this way; no other part of the judge’s discussion

implies that the eventual restriction—disallowing any

evidence of events that occurred after Gilbert reached his

cell—was imposed as a sanction for disobeying orders

regulating the conduct of the trial.

Instead of insisting that Gilbert confess in open court

to striking a guard, the judge should have implemented

Heck and Edwards through instructions to the jury at the

start of trial, as necessary during the evidence, and at

the close of the evidence. It would have sufficed to tell

the jurors that Gilbert struck the first blow during the

fracas at the chuckhole, that any statements to the

contrary by Gilbert (as his own lawyer) or a witness

must be ignored, and that what the jurors needed to
6 No. 05-1728

determine was whether the guards used more force than

was reasonably necessary to protect themselves from an

unruly prisoner.

This case must be retried, and Gilbert must be allowed

to present evidence about what the guards did to him

after he extended his hands through the chuckhole. The

district court’s first step on remand should be to determine, using the standards of Pruitt v. Mote, 503 F.3d 647

(7th Cir. 2007) (en banc), whether to request an attorney

to represent Gilbert at the upcoming trial. See 28 U.S.C.

§1915(e)(1).

REVERSED AND REMANDED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-9-08