Carr v. O'Leary

• Citation: 167 F.3d 1124
• Decision Date: 04 February 1999
• Docket Number: No. 96-3885,96-3885
• Parties: Richard CARR, Plaintiff-Appellant, v. Michael O'LEARY and Michael P. Lane, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1124

167 F.3d 1124

Richard CARR, Plaintiff-Appellant, v. Michael O'LEARY and Michael P. Lane, Defendants-Appellees.

No. 96-3885.

United States Court of Appeals Seventh Circuit.

Argued Jan. 15, 1998.

Decided Feb. 4, 1999.

John G. Jacobs (argued), Joshua Karsh, Kevin B. Marsh, Plotkin & Jacobs, Chicago, IL, for Plaintiff-Appellant.

Erik G. Light, Asst. Atty. Gen. (argued), Chicago, IL, Susan F. Rhodes (on the brief), Attorney Registration & Disciplinary Commission, Illinois Supreme Court, Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and COFFEY and RIPPLE, Circuit Judges.

POSNER, Chief Judge.

A middle-aged inmate of the minimum security unit (the "honor farm") of Illinois' prison at Stateville with only 96 days left before he was due to be released, Richard Carr had the misfortune to be caught in a prison riot. Prisoners angered by a lockdown following the murder of a guard took over the second floor, the residential floor, of Carr's unit and told the other prisoners that anyone who went downstairs for the required morning count would have his head split open. The rioters were young, tough gang members, and none of the inmates in the second floor of the minimum security unit attempted to defy them. Carr was not a gang member, and he had had nothing to do either with the murder (which had occurred in the maximum security unit of the prison) or with the takeover of his floor. And because the guards had locked the door of the only exit from the second floor to the first (where the count was conducted) to prevent the riot from spilling over to the first floor, he could not have gotten downstairs even if he had run the gauntlet of the gang members guarding the exit from the inside. Later in the morning, moreover, when a guard opened the door to the second floor to take a look around inside, Carr asked him what he should do and the guard told him to go back to his room and wait. Eventually the guards took over the second floor and hustled all 85 of its occupants over to the maximum security unit.

At disciplinary hearings held shortly after the incident, every resident of the second floor who had missed the count, hostage and gang member alike, was found guilty of the infraction of missing the count and received identical punishments, which included the loss of six months of good-time credits. After exhausting his administrative remedies, Carr filed suit under 42 U.S.C. § 1983 against the prison's warden and the director of the state prison system, seeking damages for what he contends was a deprivation of his liberty without due process of law. That was in 1989, and in 1995 the district court granted partial summary judgment for Carr, resolving the issue of liability in his favor and reserving the determination of damages for a trial. Before the trial could be held, this court ruled in Miller v. Indiana Department of Corrections, 75 F.3d 330 (7th Cir.1996), that the principle of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), applies to prison disciplinary proceedings, so that a suit for damages that challenges the validity of a prisoner's punishment may not be maintained until and unless the prisoner has gotten the punishment set aside, which Carr had not done. The state moved to dismiss Carr's suit on the basis of Miller, the holding of which has since been confirmed by the Supreme Court. See Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). The district court granted the state's motion, precipitating this appeal.

This case was seven years old, and, more to the point, Heck was almost two years old and summary judgment on liability had been granted for the plaintiff, when the state woke up and sought dismissal on the authority of Miller. Carr's court-appointed lawyers had been working on this case, with little prospect of substantial remuneration, since 1990. Naturally they cried "waiver." The district judge in her opinion granting the motion to dismiss did not discuss the issue of waiver, although she may have been alluding to it when she said that Carr's original complaint, filed pro se, may not have alerted the state to the full scope of his contentions. That may be. But it is unrelated to the issue of waiver. It was clear from the start that one of Carr's claims (others have fallen by the wayside) was a denial of due process, and it was clear when Heck was decided by the Supreme Court that a possible, and indeed rather obvious, defense in a case such as this is that the principle of Heck applies to disciplinary proceedings.

The ruling granting partial summary judgment in favor of Carr was the law of the case. The district judge therefore could not change it without a good reason. Blue Cross & Blue Shield United of Wisconsin v. Marshfield Clinic, 152 F.3d 588, 591 (7th Cir.1998). In light of Miller it was apparent that Carr did not have a meritorious case, and that was obviously a good reason for the district judge's changing her previous ruling. Agostini v. Felton, 521 U.S. 203, ----, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997). But a party's unreasonable delay in advancing a good ground for a change in a previous ruling is normally a compelling ground for deeming even a good ground waived. United States v. Connell, 6 F.3d 27, 31 (1st Cir.1993); cf. Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C.Cir.1995); United States v. Palmer, 122 F.3d 215, 220-21 (5th Cir.1997). Thus, even when the leeways built into the law of the case doctrine would allow a district judge to change her prior ruling if the party urging the change had preserved the ground for the change, if he has not done so the judge may be barred by the party's waiver. The doctrine of waiver would have little bite otherwise. Suppose a defendant fails to plead the statute of limitations in timely fashion and as a result the district judge holds that the suit is not time-barred; for normally the failure to plead a defense in timely fashion is a waiver. E.g., Sharpe v. Jefferson Distributing Co., 148 F.3d 676, 679-80 (7th Cir.1998); Herremans v. Carrera Designs, Inc., 157 F.3d 1118, 1122 (7th Cir.1998); Anderson v. Flexel, Inc., 47 F.3d 243, 247 (7th Cir.1995); Harris v. Secretary, U.S. Dept. of Veterans Affairs, 126 F.3d 339, 343 (D.C.Cir.1997); cf. Yakus v. United States, 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Later the defendant discovers the statute of limitations and urges the district judge to change her ruling, pointing out that under the law of the case doctrine a ruling can be changed if shown to be erroneous. If the judge were free to accept this argument, it would be tantamount to ignoring waiver.

The State of Illinois had been remarkably careless in failing to assert a Heck defense until Miller was decided, since Miller was such a natural extension or application of Heck and to a matter central to the state attorney general's responsibilities, hence a matter on which his office could be expected to be au courant; the state's argument in its brief in the present case that the decision in Miller was unforeseeable is frivolous. Cf. Bousley v. United States, 523 U.S. 614, ----, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998). By its delay the state imposed unnecessary expenses on Carr's lawyers and on the state's taxpayers who pay the salaries of the attorney general and his staff, and an unnecessary burden on the federal courts. Worse still, the state courted disaster by waiving a dispositive defense--a familiar failing of the Illinois attorney general's office, Gonzalez v. DeTella, 127 F.3d 619, 622 (7th Cir.1997); Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir.1996); Holland v. McGinnis, 963 F.2d 1044, 1057-58 (7th Cir.1992); Rivera v. Director, 915 F.2d 280, 283 (7th Cir.1990); Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990), and one distinctly detrimental to the interests of the people of Illinois.

It is no answer that there was no waiver because Miller had not come down and it was therefore merely likely, not certain, that Heck applied to prison disciplinary proceedings. The failure to plead the Heck defense in timely fashion was a waiver; the question is whether there was some ground for relieving the defendants from the consequences of their waiver. U.S. National Bank v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 446-48, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993); Baltimore & Ohio Chicago Terminal R.R. v. Wisconsin Central Ltd., 154 F.3d 404, 408-09 (7th Cir.1998); Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746, 749-50 (7th Cir.1993); National Ass'n of Social Workers v. Harwood, supra, 69 F.3d at 627-29. Failure to plead a defense that had not yet been created, and could not have been foreseen--a critical, and here highly relevant, qualification, as Bousley v. United States, supra, 523 U.S. at ----, 118 S.Ct. at 1611, suggests--at the time for pleading defenses would be a good ground for relieving the defendant from his waiver, or even, as some courts prefer to say, for denying that there had been a waiver. Oregon Short Line R.R. v. Department of Revenue, 139 F.3d 1259, 1264-65 (9th Cir.1998); Ackerberg v. Johnson, 892 F.2d 1328, 1331-33 (8th Cir.1989). But this defense, as we have seen, is not available to the state, because Miller's extension of Heck to reach the circumstances of the present case was readily foreseeable.

The district judge could, nevertheless, have forgiven the state's waiver of its Heck-Miller defense in accordance with the principle that treats the waiver of defenses based on grounds rooted in considerations of state sovereignty less harshly than other waivers. See Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987); Sullivan v. Conway, 157 F.3d 1092, 1095 (7th Cir.1998), and cases cited there; Graham v. Johnson, 94 F.3d 958, 970 (5th Cir.1996) (per curiam); National Ass'n of Social Workers v. Harwood, 69 F.3d 622, 628-29 (1st Cir.1995); Hardiman v. Reynolds,...