Revised October 13, 1998
UNITED STATES COURT OF APPEALS FIFTH CIRCUIT
____________
No. 96-30313 ____________
CHARLES W CLARKE,
Plaintiff - Appellee - Cross- Appellant,
versus
RICHARD L STALDER, ET AL,
Defendants
RICHARD L STALDER
Defendant - Appellant - Cross- Appellee
ROBERT TANNER
Defendant - Appellee
CAPTAIN CHARLES MOULARD
Defendant - Appellee.
Appeals from the United States District Court For the Eastern District of Louisiana
September 1, 1998
Before POLITZ, Chief Judge, REYNALDO G. GARZA, KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.
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
-2- 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
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
-3- 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 Moulard’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 injunctive
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 his First
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.
-4- 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 case 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.
-5- 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.
III
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
-6- charge, and if success of the plaintiff’s 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 “conviction”
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 case 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
-7- 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
-8- 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 ET AL., 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
-9- 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
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.”).
-10- 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.
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).
-11- REYNALDO G. GARZA, Circuit Judge, dissenting:4
My colleagues in the majority utilize 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 Ed. 2d 906 (1997), to
dismiss the only issue which is presented before this Court;
whether the “no threats of legal redress” portion of Rule 3
constitutes an impermissible violation of the First Amendment.
The panel hearing Clarke’s original appeal correctly reversed
the magistrate judge and held that Heck and Edwards barred 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). Moreover, the panel was
correct in affirming the magistrate judge by holding that Clarke’s
facial challenge to the constitutionality of Rule 3 was not barred
by Heck or Edwards.
The majority, however, now find that Heck and Edwards bar
Clarke’s facial challenge and vacate the magistrate judge’s holding
that Rule 3 is facially unconstitutional and remand with
instructions to dismiss. This holding is incorrect because the
panel in its opinion did not violate Heck or Edwards.
4 Judge Jerry E. Smith joins the dissent only in regards to part I of this opinion.
-12- I.
The majority contends that Heck and Edwards prohibit Clarke’s
request for prospective injunctive relief. They state that
Clarke’s request for prospective injunctive relief, a facial
declaration of the unconstitutionality of the “no threats of legal
redress” portion of Rule 3, is so intertwined with his requests for
damages and reinstatement of his lost good-time credits that
granting such relief would “necessarily imply” the invalidity of
his loss of good-time credits. This conclusion is flawed.
It is evident that awarding such prospective relief to Clarke
would not “necessarily imply” the invalidity of his conviction. At
best it could “possibly imply” the invalidity of his loss of good-
time credits. This is because the “no threats of legal redress”
portion of Rule 3 may not be the only basis for his conviction.
The initial disciplinary write-up, the guard’s testimony, and
several pages worth of the Secretary’s own briefs indicate several
grounds for conviction.
The majority however have taken these facts and “swept them
under the rug” so they can dismiss the prospective relief sought by
Clarke and not address the constitutional issue that stands before
this Court. They state, “[a]ccordingly, we find that Clarke was
punished for violation of the “no threats of legal redress” portion
of Rule 3.” My knowlegable colleagues have either made a terrible
mistake or now look at this case with blind eyes. I will now go
into great detail to paint the true picture that they should have
seen.
-13- Clarke’s admission that he threatened to sue provided a
convenient basis for the Disciplinary Board to quickly resolve the
proceedings against Clarke without addressing his other conduct in
violation of the rule. However, Captain Moulard (the guard
involved) testified at trial that Clarke “became belligerent, shook
his finger in my face and started cussing, cursing me . . . .”
Captain Moulard’s disciplinary report contained the following
description of the incident:
On the above date and time the above inmate was interfering with inmates assigned to extra duty. I Capt. Moulard called inmate Clark to C/C to talk to him. I told him I was going to write him up for interfering with the inmates. Inmate Clarke became belligerent [sic] and told me he was going to file a lawsuit and an ARP on me and that he was going to see who was going to win.
The Disciplinary Board found Clarke guilty of violating Rule 3. A
space on the disciplinary report calling for the “[r]easons for
[g]uilty” contained a handwritten notation that “[i]nmate admits he
threatened legal redress during a confrontation with staff.” This
section of the report also contains check marks next to spaces
indicating that “[r]eport is clear and precise,” “[l]ack of a
credible defense/little or no defense,” and “[t]he inmate’s
demeanor led the board to believe that inmate’s testimony was
untrue.” Clarke appealed to the Secretary, who affirmed because
“[t]his inmate admitted that he threatened legal action during this
incident . . . [h]is actions constituted an obvious violation of
Rule #3.”
Unlike the majority contends, this evidence does not establish
that the sole reason for Clarke’s conviction was his threat to sue.
-14- In contrast, the Disciplinary Board’s reliance on Captain Moulard’s
“clear and precise” report specifically indicates that the Board
also considered Clarke’s conduct accompanying his threat to sue,
including his interference with the work of other inmates, his
belligerence, and his challenge to “see who was going to win.”
The Secretary has “shot himself in the foot” by arguing that
based on the adequacy of other grounds in support of Clarke’s
conviction, the Court should not reach the constitutional issue.
The Secretary simply cannot establish from the record which grounds
formed the basis for Clarke’s conviction. Specifically, the
Secretary forcefully argues that there was no evidence at trial
indicating that the conviction was based solely on Clarke’s legal
threats. As noted above, the Disciplinary Report indicates that
the Board considered the totality of Clarke’s conduct, as
established by the guard’s “clear and precise” report.
Although it is the trial court’s task to determine what the
specific basis for Clarke’s conviction was, suffice it to say that
there are at least questions of fact in that regard. In fact, the
Secretary would be hard pressed to argue that the conviction was
based solely on Clarke’s threat to sue, considering Secretary’s
arguments that the record is replete with evidence of other grounds
which support Clarke’s conviction and penalty. To provide more
detail I will illustrate some instances in which the Secretary
argues that Clarke’s threat to sue was not the sole basis for his
conviction:
Because, the plaintiff-inmate’s August 16, 1992 write-up amply supports its issuance and subsequent conviction by
-15- the Disciplinary Board on grounds which have nothing to do with the plaintiff-inmate’s alleged exercise of his First Amendment free speech rights, the lower court erred in even reaching the constitutional issue in this case.
(Appellant’s Original Br. at 6 (italics added)).
This Court need not even reach the First Amendment issues in connection with Charles Clarke’s August 16, 1992 write-up because he cannot show that the sole reason for his punishment . . . was for exercising an alleged First Amendment right. In other words, there is sufficient evidence in the record supporting the disciplinary action . . . on grounds which do not implicate the First Amendment . . . .
(Id. at 6-7 (underscoring in original, italics added)).
As provided in the write-up itself and corroborated by the trial testimony of Captain Moulard, Charles Clarke took three (3) actions on August 16, 1992, all subjecting him to a Rule 3 write-up for Defiance: (1) he became belligerent; (2) he threatened to file a lawsuit and an ARP against Captain Moulard; and (3) he told Captain Moulard “he was going to see who was going to win.”
(Id. at 9 (bold in original, italics added)).
There was no evidence adduced at trial whatsoever suggesting
that Captain Moulard or the Disciplinary Board based their
decisions solely and exclusively on Charles Clarke’s threat of
legal redress.
(Id. (italics added)).
-16- The substantive description in the August 16, 1992 write- up amply supports its issuance and Disciplinary Rule 3 conviction with facts that have nothing to do with a verbal threat of litigation of administrative remedy. The Magistrate’s Order and Reasons, however, failed to even address or mention this argument.
(Id. at 11 (italics added)).
[T]he disciplinary proceeding at issue is independently
supported by defiant behavior not constitutionally protected.
(Appellant’s Reply Br. at 2.)
Clarke was originally cited for belligerence, threatening legal action in a confrontation situation, and challenging a guard to see who was going to win. Only the second of these actions involves a First Amendment claim; the constitutional issue need not be addressed because the punishment in independently supported by the other two grounds.
(Id. at 4 (italics added)).
Combativeness and a challenge to prison authority are each sufficient for defiance, and clearly not constitutionally protected behavior. The substance of Clarke’s other threat does not cloak these actions with constitutional protection, any more than flag burning justifies burning down a building in the process. Regardless of what he said, Clarke became belligerent and “called out” the guard; both action constitute defiance.
(Id. at 5 (italics added)).
Clarke’s disciplinary conviction can and should be upheld based upon his belligerence and his challenge to the guard to see who would win. . . . [B]ecoming belligerent and threatening to see who would win both constitute
-17- threats and intimidation efforts, and each separately supports conviction for defiance under the rule.
(Defendant-Appellant’s Supp. Br. For Reh’g En Banc at 8 (italics
added)).
Clarke then became belligerent and threatened Captain Moulard. He cursed and shook his finger at the guard, and made this three-fold threat. His belligerence suggested the threat of bodily harm and was an effort to intimidate Captain Moulard; the threat to file a lawsuit and an ARP similarly represented a further effort to intimidate the guard not to perform his duties. Finally, the challenge to “see who is going to win” was a direct threat to the guard’s authority, intimidation and an outright challenge to prison discipline. . . . Regardless of this threat of legal redress to intimidate the guard, Clarke is guilty of belligerence and a direct challenge to prison authority, both acts constituting defiance.
(Id. at 10 (italics added)).
It is evident, at the very least, factual issues remain as to
the sufficiency of the other grounds for Clarke’s conviction;
therefore, sending the case back was the proper course of action.
The Secretary pointed out that the magistrate did not address the
other grounds for Clarke’s conviction. As Clarke’s conviction
could be based on other grounds, our ruling does not necessarily
imply the invalidity of his conviction.
Finally, contrary to the majority’s assertion, the
magistrate’s statement that “[h]ad [Clarke] threatened the
defendant with physical harm or insulted the employee or his
family, disciplinary action against [Clarke] would have been
-18- appropriate under the other, unchallenged portions of DOC Rule 3,”
does not imply that Clarke’s conviction was not based on some other
aspect of the rule. Significantly, the quoted statement does not
discuss the final two sentences of the rule, which also define
Defiance:
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.
The Secretary’s assertion that Clarke’s conviction was based on his
belligerence and his direct challenge to prison authority easily
fit within these prohibitions. This further supports my conclusion
that, because of the other potential grounds for Clarke’s
conviction, our ruling does not necessarily imply the invalidity of
that conviction.
The majority must remember that Justice Scalia in Heck
established that if a federal judicial action would “necessarily
imply” the invalidity of a prison conviction the court may not act.
Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372. Justice Scalia’s
words are “necessarily imply” not “possibly imply” or “probably
imply.” The majority by ruling that Clarke’s request for
prospective relief would “necessarily imply” the invalidity of his
loss of good-time credits has essentially put words in Justice
Scalia’s mouth. Justice Scalia never envisioned Heck or Edwards to
be an escape hatch to avoid ruling on constitutional issues that
-19- come before this Circuit.
Moreover, the majority fails to fully discuss Heck. Justice
Scalia stated in Heck that “[I]f the district court determines that
the plaintiff’s action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgement against the
plaintiff, the action should be allowed to proceed 5. . . .” Heck,
512 U.S. at 487, 114 S. Ct. at 2372-73. This case presents just
that situation. This Court in addressing the constitutionality of
“no threats of legal redress” portion of Rule 3 will not invalidate
Clarke’s conviction. It is evident from the numerous examples I
have provided that the “no threats of legal redress” portion of
Rule 3 was not the sole basis for Clarke’s conviction. In
addition, because there are other violations of Rule 3 that the
court may use to support Clarke’s conviction, there is no
substantial risk that granting the prospective relief will
invalidate his conviction. Therefore, we must address this
constitutional issue.
It is our duty and obligation to rule on this First Amendment
issue. It is not necessary for Clarke to have a lower court
conduct Habeas Corpus proceedings. It will be a waste of judicial
time and resources. Regardless of how a lower court holds our
5 Justice Scalia provides an example of a suit for damages for an allegedly unreasonable search. He states that the search may be used even if the challenged search produced evidence that was introduced in a state trial resulting in the § 1983 plaintiff’s outstanding conviction. That is because the plaintiff’s action will not invalidate any outstanding criminal judgment because there are doctrines such as independent source and inevitable discovery, and harmless error that may be utilized. Heck, 512 U.S. at 487 n.7.
-20- circuit will eventually have to decide the constitutionality of the
“no threats of legal redress” portion of Rule 3. The losing party
in such an action will surely appeal the lower court’s holding.
I agree with the majority that Clarke should not have his
conviction set aside. In fact, the original panel in which I sat
denied such relief. However, no inmate should have an
unconstitutional rule hanging over their head. To allow this to
occur, when this Court has the opportunity to strike down the “no
threats of legal redress” portion of the Rule 3, would be wrong.
If the majority does or does not believe that the “no threats
of legal redress” portion of Rule 3 is unconstitutional then they
should express their finding. By doing so, it would give Clarke
the opportunity to seek assistance from the Supreme Court. I am
sure if the majority finds, as I have, that this portion of the
Rule 3 is unconstitutional then the State of Louisiana will appeal
this case to the Supreme Court. Consequently, Clarke will
rightfully have a final determination of the constitutionality of
Rule 3.
II.
As stated in my opinion in 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), the “no threats of legal redress” portion of
Rule 3 is unconstitutional. This determination was made by
applying the test set forth in Turner, in light of the magistrate
-21- judge’s factual findings. Clarke, 121 F.3d at 227-31. Turner
states that a prison rule, which restricts a prisoner’s freedom of
speech, should be upheld so long as it is “reasonably related” to
legitimate penological goals. Turner v. Safley, 482 U.S. 78, 89,
107 S.Ct. 2254, 2261-62 (1987). We concluded that the goal was
legitimate. We were, however, convinced that the prison rule was
not “reasonably related.”
I still firmly believe that our previous holding that the “no
threats of legal redress” portion of Rule 3 was unconstitutional
was the correct determination. Since the majority has chosen not
to address this constitutional issue, I am forced to adamantly
dissent.
-22- DENNIS, Circuit Judge, dissenting.
I respectfully dissent for reasons closely associated with and
derivative of those stated in Part I of Judge Reynaldo Garza’s
dissenting opinion. I write further to add or make explicit
several of those reasons: (1) The Department of Corrections
defendants have conceded that, if the “face-to-face threat of legal
redress” prohibition is unconstitutional, their reliance in part on
that provision in imposing disciplinary punishment on Clarke was
harmless error; (2) Therefore, the plaintiff’s action for
prospective declaratory and injunctive relief based on the alleged
unconstitutionality of that prohibition, even if successful, will
not demonstrate the invalidity of the previous determination of his
guilt of prison rule infractions or the loss of good time imposed
as punishment therefor; (3) Our determination that the Department
of Corrections defendants’ reliance, in part, on the challenged
prohibition was harmless error, based both on the Department’s
concession and the overwhelming evidence of record, will be res
judicata in Clarke’s future attempt to regain his lost good time in
habeas proceedings, even if the prohibition is ultimately adjudged
to be unconstitutional in the present action for prospective
declaratory and injunctive relief.
Clarke prays for prospective relief declaring that a
Department of Corrections disciplinary rule’s prohibition of a
prisoner from “threatening [any Department employee] with legal
redress during a confrontation situation” violates the free speech
-23- clause of the First Amendment and enjoining the Department from
enforcing that prohibition. This claim is not cognizable under 18
U.S.C. § 1983 if such a judgment for Clarke would “necessarily
imply” the invalidity of his previous loss of 10 days of good-time
credit as punishment for prison rule infractions. Edwards v.
Balisok, 520 U.S. 641 (1997). But if the success of Clarke’s
action will not necessarily imply the invalidity of the punishment
imposed, the action should be allowed to proceed, in the absence of
some other bar to the suit. Heck v. Humphrey, 512 U.S. 477, 487
(1994). “For example, a suit for damages attributable to an
allegedly unreasonable search may lie even if the challenged search
produced evidence that was introduced in a state criminal trial
resulting in the § 1983 plaintiff’s still-outstanding conviction.”
Id. n.7. “Because of doctrines like [] especially harmless error,
see Arizona v. Fulminante, 499 U.S. 279, 307-308[](1991), such a §
1983 action, even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful.” Id. In the present
case, as Judge Reynaldo G. Garza has cogently demonstrated in his
dissent, the Secretary of the Department of Corrections and the
other defendants have conceded that, even if the prison regulatory
prohibition against a prisoner’s face-to-face threat to sue a guard
is unconstitutional, the Department’s partial reliance upon it was
harmless error because there was overwhelming and conclusive proof
of Clarke’s guilt of the prison rule infraction by other acts by
Clarke in the same episode for which Clarke does not claim
protection under the First Amendment. For instance, in the same
-24- confrontation, Clarke not only threatened to sue; he also
demonstrated belligerence or aggressiveness toward the guard; he
defiantly “called out” the guard; he threatened the guard while
cursing and shaking his finger at the guard; his belligerence
suggested the threat of bodily harm to the guard. The majority’s
fears that a judgment in the present § 1983 action declaring that
the prohibition is violative of the free speech clause of the First
Amendment would be res judicata in Clarke’s future habeas
proceedings to alleviate his punishment are unfounded. Our
determination that the Department’s reliance, in part, on the
challenged prohibition of allegedly protected speech was harmless
and ineffectual to his prison disciplinary proceeding and
punishment, based on the Department’s concession of this fact and
the overwhelming support for that conclusion in the record, will
have res judicata effect in Clarke’s future habeas proceeding. If
this were not the case, the Supreme Court in Heck would not have
stated that because of doctrines like independent source,
inevitable discovery, and “especially harmless error” certain §
1983 actions, “even if successful, would not necessarily imply that
the plaintiff’s conviction was unlawful.” Id. at 487, n.7.
Consequently, I agree with and concur in part I of Judge
Reynaldo G. Garza’s dissenting opinion. I will reserve judgment,
however, on the merits of whether the prohibition against face-to-
face threats to sue is constitutional. I acknowledge the
persuasive force of my dissenting colleague’s argument on the
subject in his panel opinion. The majority did not address the
-25- issue, however, and I would prefer to decide upon it after having
the benefit of a more robust discussion and debate among the
members of the court.
-26-