Greene v. Meese
| Decision Date | 24 May 1989 |
| Docket Number | No. 87-2344,87-2344 |
| Parties | Randolph J. GREENE, Petitioner-Appellant, v. Edwin MEESE, III, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Terry Miller, Lorri Staal, Law Students, Northwestern University School of Law, Chicago, Ill., for petitioner-appellant.
William D. Braun, U.S. Dept. of Justice, Washington, D.C., for respondents-appellees.
Before WOOD, Jr., POSNER and COFFEY, Circuit Judges.
The plaintiff is a federal prisoner who complains that while incarcerated in the federal prison at Terre Haute in the fall of 1983 he was denied due process of law by being repeatedly subjected to disciplinary sanctions in retaliation for having rejected homosexual solicitations by guards and resisted improper searches having homosexual overtones. The disciplinary proceedings led to his spending 119 days in administrative segregation (an approximation to solitary confinement) and losing 70 days of statutory "good time" credits; in addition his eligibility for parole was undermined. The suit, brought in 1987 against then Attorney General Meese, the warden of Terre Haute, and a number of prison officers, seeks both the restoration of the good-time credits and parole-eligibility status, and the payment of damages to compensate Greene for being wrongfully punished. The district court construed Greene's complaint as an application for habeas corpus and dismissed the suit because he had not exhausted his administrative remedies.
On the surface at least, this is a hybrid civil rights-habeas corpus suit. Insofar as Greene seeks damages for the infringement of his constitutional right to due process of law, it is a Bivens-type civil rights suit (see Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980)), that is, a suit brought directly under the Constitution against federal officers. Normally a civil rights plaintiff is not required to exhaust his administrative or judicial remedies. But insofar as Greene seeks the expungement of disciplinary sanctions in order to shorten his stay in prison, he seeks relief obtainable only in a habeas corpus proceeding, Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Larsen v. Sielaff, 702 F.2d 116, 118 (7th Cir.1983), where exhaustion--of state judicial remedies in the case of state prisoners and federal administrative remedies in the case of federal prisoners--is required. Statutory for state prisoners, see 28 U.S.C. Sec. 2254(b), the requirement of exhaustion is judge-made for federal ones, see, e.g., Del Raine v. Carlson, 826 F.2d 698, 703 (7th Cir.1987); Sanchez v. Miller, 792 F.2d 694, 697 (7th Cir.1986), but it is a requirement nonetheless. Greene's suit is based on seven separate incidents in which he was punished for alleged disciplinary infractions, and he concedes that the record does not demonstrate that in every instance he exhausted the administrative remedies available to him in the Bureau of Prisons for the rectification of such punishment.
The rule of complete exhaustion announced in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), is an interpretation of section 2254(b), the provision requiring exhaustion by state prisoners as far as we know, the question whether complete exhaustion should be required of federal prisoners as well had not arisen until this case. Insofar as Rose emphasizes considerations of comity--more concretely, the desirability of the federal courts' respecting decisions by courts of (nominally) other sovereigns, the states--it has no application to a habeas corpus case brought by a federal prisoner. But the opinion in Rose also mentions the desirability of avoiding piecemeal litigation, see id. at 520-21, 102 S.Ct. at 1204, and in support cites a federal-prisoner case, Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). These bits of authority are not definitive, but we think the rule of complete exhaustion should apply to federal-prisoner cases. If Greene wants a federal district court to adjudicate a group of interrelated claims all involving the same conduct at the same prison in the same period of time, he ought to exhaust all the claims so that the district judge can consider them in one lump at one time.
Greene advances a number of arguments against requiring exhaustion in the circumstances of this case. One is that exhaustion would be futile because the higher-ups in the Bureau of Prisons are bound to turn down Greene's remaining requests for relief, just as they turned down his other claims. No doubt denial is the likeliest outcome, but that is not sufficient reason for waiving the requirement of exhaustion. Lightning may strike; and even if it doesn't, in denying relief the Bureau may give a statement of its reasons that is helpful to the district court in considering the merits of the claim. It is true that a request by Greene for relief now would be untimely; it is almost six years since he was disciplined and he should have complained within 15 days of each incident. 28 C.F.R. Sec. 542.13(b). But "where the inmate demonstrates a valid reason for delay [in filing his complaint], an extension in filing time shall be allowed." Sec. 542.13. Perhaps the extension can be sought even after the time for filing has expired--the regulations are silent on this.
The Bureau must be given a chance to clean up its act before the courts are asked to intervene. If the Bureau declines to act, the question will then arise whether Greene's delay in seeking administrative relief on the unexhausted claims should also forfeit his right to seek judicial relief. Even if the answer is "yes," this will not put Greene completely out of court; he will be allowed to proceed on the five claims that he did exhaust in timely fashion.
Greene next argues that no exhaustion should be required here because this is not really a habeas corpus case--a case about the duration of confinement--but a damages case. This would be a good argument if the target of his complaint were homosexual impositions or other indignities visited on him by the guards, for these indignities would not be redressed by a shortening of Greene's remaining term of imprisonment; indeed, such a remedy would bear no relation to the nature of the wrong. But that is not his target: Greene alleges that he successfully resisted the homosexual solicitations. Nor does he (in this court anyway) complain directly about the patdown searches and body-cavity inspections that he contends were homosexual assaults, beyond a passing reference in his brief to injury from "unreasonable searches." His complaint, at least his principal complaint, is about the punishment he received (for resisting the assaults, he says), and he seeks restoration of his lost good-time credits and of his former parole-eligibility status as well as damages. The effect of restoration of those lost credits and parole status would be to shorten the expected term of his imprisonment, and this makes the suit a challenge to the duration of his confinement and hence a habeas corpus suit. Preiser v. Rodriguez, supra, 411 U.S. at 494, 93 S.Ct. at 1838; Hanson v. Heckel, 791 F.2d 93 (7th Cir.1986) (per curiam); see also Crump v. Lane, 807 F.2d 1394 (7th Cir.1986); Scruggs v. Moellering, 870 F.2d 376, 379 (7th Cir.1989).
This was true, we held in Hanson, even when the prisoner is not asking for a reduction in his prison stay (Hanson was a suit for a declaratory judgment). For if the prisoner proved that he had been wrongfully deprived of his statutory good time, he could not be forbidden to request its restoration in a habeas corpus proceeding later; there is no defense of res judicata to habeas corpus. A prisoner may not circumvent the requirement of complete exhaustion by first suing for damages or a declaratory judgment and then using a favorable judgment in that suit as the basis for requesting a reduction in the length of his imprisonment. Greene's brief coyly states that "there is nothing in the record which demonstrates the effect of [restoring the good-time credits] on the plaintiff's custodial status." But if the effect were nil, there would be no point in asking for their restoration; indeed, that aspect of the case would be moot. What is true is that if the...
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