In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1573
URBANO C. ALEJO,
Plaintiff-Appellant,
v.
GARY E. HELLER and KEITH HECKLER,1
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 94-CV-682-JPG—J. Phil Gilbert, Judge.
____________
ARGUED FEBRUARY 19, 2003—DECIDED MAY 13, 2003
____________
Before FLAUM, Chief Judge, COFFEY and KANNE, Circuit
Judges.
KANNE, Circuit Judge. Prisoner-detainee Urbano C.
Alejo was disciplined for failing to obey a federal correction
officer’s order that was issued in English. Alejo, a Spanish-
speaking Cuban national, brought this Bivens-style action,
1
The docket sheet for this appeal also lists as defendants-
appellees K. Murphy, Fernando Castillo, and M.L. Batts. At no
time in this appeal has Alejo made an argument that the dis-
missal of these defendants was in error. These defendants are
therefore dismissed with prejudice from this appeal. See also infra
note 2.
2 No. 01-1573
alleging various denials of due process based on his na-
tionality and ethnicity. All but one of these claims—that
Alejo was unconstitutionally disciplined for his failure to
obey an order he could not understand—were dismissed
for want of prosecution, a ruling that is not challenged
here. What is challenged is (i) the district court’s sua
sponte dismissal without prejudice, at the threshold stage,
of all but one of the prison-personnel defendants on ac-
count of Alejo’s failure to allege their personal involve-
ment, and (ii) the district court’s subsequent dismissal of
the remaining claim against defendant Lieutenant Gary
Heller, because that claim necessarily asserted the in-
validity of a disciplinary determination that had not
previously been challenged. We affirm in part, reverse in
part, and remand for proceedings consistent with this
opinion.
I. HISTORY
Alejo’s Background
Alejo fled Cuba for the United States in 1980. Shortly
after his arrival, the Immigration and Naturalization
Service detained him and placed him in federal custody.
Three years later, while in detention, Alejo was convicted
and sentenced for conveying a weapon at a federal facility.
Thereafter, in 1986, Alejo was convicted and sentenced
for killing his cellmate.
During his sentence for murder, Alejo served time at
various federal prisons, including the United States Peni-
tentiary at Marion, Illinois (“USP Marion”), where the
events giving rise to this action occurred. Alejo has com-
pleted his criminal sentence, but remains confined as an
INS detainee.
No. 01-1573 3
The Incident
While at USP Marion, Alejo was housed in the prison’s
“B Unit” and was placed in the prison’s “pretransfer” pro-
gram, a unit and program designated for those prisoners
and detainees who had maintained “clear conduct” during
their recent history of incarceration and as a reward
received special privileges, such as relaxed rules and the
ability to work at a cable factory. As a condition for re-
ceiving these privileges, however, B-Unit inmates were
subject to random strip searches.
In the afternoon of August 12, 1994, Alejo was stopped
as he was leaving the dinner hall by USP Correction Offi-
cer Keith Heckler and ordered to strip. Alejo complied.
Heckler then ordered Alejo in English to hand Heckler his
clothes as he removed them. Heckler contends that Alejo
refused this order, placing his clothes instead on a near-
by wooden bench and telling Heckler also in English to pick
them up himself.
Alejo denies this, and contends that although he under-
stood Heckler’s order to strip—having complied with
such orders on occasions too numerous to list—he did
not understand what Heckler was ordering him to do with
his discarded clothes. It is undisputed that Alejo has
difficulty understanding English. In fact, this was ap-
parently known to prison officials at the time of the strip-
search incident. A November 1993 prisoner report on
Alejo described the extent of his grasp of the English
language: “Caberra-Alejo does not speak English in any
substantial manner and effective communication is only
accomplished by use of an interpreter.”
Nonetheless, Heckler reported Alejo’s noncompliance
to his superior, USP Lieutenant Gary Heller. Heller in-
structed Heckler to write him up for refusal to obey an
order. Heckler did so, and after another lieutenant con-
ducted a short investigation into the incident, which
4 No. 01-1573
revealed Alejo’s defense that he had not understood the
order, the report was referred to the prison disciplinary
committee.
Three days later, the disciplinary committee convened
to consider the incident report and determined that
Alejo had willfully disobeyed Heckler’s order. As a result,
Alejo was removed from the B Unit and the pretrans-
fer program.
On September 12, 1994, Alejo appealed the disciplinary-
committee decision to the prison warden, who denied re-
lief. Alejo then submitted an administrative appeal of the
warden’s decision to the regional director. But that ap-
peal did not challenge the disciplinary committee’s deci-
sion regarding the strip-search incident; instead, it chal-
lenged an unrelated disciplinary determination arising from
a separate incident involving Alejo’s possession of a razor
blade, which had resulted in Alejo being placed in dis-
ciplinary segregation.
The Lawsuit
Rather than further pursuing his administrative ap-
peal of the strip-search incident, on September 14, 1994,
Alejo initiated this action by filing a pro se complaint
written entirely in Spanish. The district court struck
the complaint for noncompliance with Federal Rule of
Civil Procedure 8(a), granting Alejo leave to refile. On
March 27, 1995, Alejo filed his amended pro se complaint,
written in English.
The amended complaint named Heller and Heckler, as
well as various other prison officials, as defendants. But
in Alejo’s statement of his claim, only Heller is referred
to by name. He described the defendants as “Gary E. Heller,
and other John Does of the Bureau of Prisons,” and accused
them of violating his constitutional rights by (i) harassing
No. 01-1573 5
him on account of his Cuban ancestry and in retaliation
for prior complaints about his custodial conditions, (ii)
inflicting disproportionate punishment upon him also on
account of his Cuban ancestry, and (iii) denying him
Spanish-speaking interpreters when issuing orders and
preventing him from meaningful access to the courts by
refusing to address his administrative appeals written
in Spanish.
On May 17, 1995, the district court granted Alejo per-
mission to proceed in forma pauperis, but sua sponte
dismissed Heckler and every other defendant except for
Heller from the suit, finding that in his statement of
claim, Alejo made no allegation that any of them were
personally involved in the events giving rise to the suit.
The dismissal regarding the other defendants was granted
without prejudice, and the case against Heller was referred
to a magistrate judge for further proceedings.
Heller moved for a more definite statement on July 24,
1995, a motion which the district court summarily denied
a month later. On January 30, 1996, the district court
appointed counsel for Alejo.
A year later, Heller filed a motion seeking dismissal or,
alternatively, summary judgment on Alejo’s claims, argu-
ing that he was not personally involved in the events
at issue and that even if he was, he did not violate any
of Alejo’s clearly established constitutional rights by
advising Heckler to pursue disciplinary charges against
Alejo and was therefore entitled to qualified immunity.
Because Heller had relied on materials outside of the
pleadings, the motion was treated as one for summary
judgment.
In his report and recommendation issued June 17, 1997,
the magistrate judge recommended rejection of Alejo’s
First Amendment access-to-the-courts claim and reten-
tion of the remaining claims. On August 19, 1997, the
6 No. 01-1573
district court adopted the report and recommendation in
full, granting summary judgment in favor of Heller on
the access-to-the-courts claim and denying relief as to
the balance of the claims.
For the next three years, the case meandered through
discovery and pretrial motions. On July 14, 2000, Heller
filed his second motion for summary judgment, claiming
that because success on Alejo’s claims arising out of the
strip-search incident would necessarily invalidate the
disciplinary determination resulting from that incident, he
was precluded from collaterally seeking damages relief
without having first invalidated that determination di-
rectly. Heller noted that Alejo had not exhausted his
administrative remedies to expunge that incident report
or the decision of the disciplinary committee. Heller
also reasserted his lack-of-personal-involvement and
qualified-immunity arguments. On August 7, 2000, Alejo
filed his response to the motion.
The magistrate judge agreed with Heller’s position
that this Circuit’s precedent interpreting the Supreme
Court’s holding in Heck v. Humphrey, 512 U.S. 477 (1994),
required Alejo to invalidate the disciplinary determina-
tion before collaterally attacking it in a Bivens-style suit.
On September 9, 2000, he recommended the complaint
be dismissed. Alejo filed his objections to the magistrate
judge’s report and recommendation on September 25, 2000.
On November 13, 2000, the district judge adopted
the report and recommendation and dismissed without
prejudice Alejo’s claims relating to the strip-search incident.
The district judge recognized that in a decision issued
August 11, 2000, we overruled our prior precedent apply-
ing Heck to prisoners who challenge only the conditions
of their confinement, DeWalt v. Carter, 224 F.3d 607, 617-
18 (7th Cir. 2000); however, he concluded that the invalid-
ity of that prior precedent was “unrelated to the principles
at issue in this case.”
No. 01-1573 7
Further, the court ordered Alejo to show cause why
it should not dismiss for want of prosecution any remain-
ing claims that did not arise out of the strip-search inci-
dent. On February 22, 2001, the district court ruled on
the show-cause order, finding that for several years
Alejo had not mentioned any specific event other than
the proceedings relating to the strip-search incident,
and therefore the court dismissed without prejudice all
remaining claims for want of prosecution. Having then
dispensed with all of Alejo’s claims, the district court
entered final judgment pursuant to Federal Rule of
Civil Procedure 58, and Alejo filed a timely notice of appeal.
Alejo’s appeal challenges only the dismissal of Heckler
for lack of personal involvement2 and the dismissal of
the claim arising out of the strip-search incident against
Heller. Neither the grant of summary judgment on the
First Amendment claim nor the want-of-prosecution
dismissal of any remaining claims not arising from the
August 12, 1994 strip-search incident are at issue here.
We restrict our discussion accordingly.
II. ANALYSIS
Heckler’s Dismissal
Alejo attacks the district court’s sua sponte decision—
made at the threshold, in forma pauperis determina-
tion stage—to dismiss the claim against Heckler with-
out prejudice because of Alejo’s failure to allege facts
2
Although this order also dismissed prison-official defendants
“K. Murphy, Fernando Castillo, Mr. Miranda, Lt. Miliacia, M.L.
Batts, Mr. Koillow, and Jesus Navarro,” (R. 12) Alejo does not
challenge the dismissal of these defendants. Our discussion is
therefore restricted to the district court’s ruling as applied to
Heckler alone.
8 No. 01-1573
sufficient to establish Heckler’s personal involvement in
the allegedly unconstitutional conduct.
As an initial matter, Heckler argues that Alejo has
waived any argument contesting Heckler’s dismissal.
Heckler’s argument is that because he was dismissed
without prejudice, a ruling which invited Alejo to amend
his complaint to add allegations of Heckler’s personal
involvement, and because Alejo never amended his com-
plaint to include these allegations, we should not now
entertain his objections to the district court’s prior dis-
missal.
We have squarely rejected this type of “waiver” argu-
ment previously and do so again here. See Bastian v.
Petren Res. Corp., 892 F.2d 680, 682 (7th Cir. 1990). Alejo
argues that the dismissal of Heckler was erroneous—that
his amended pro se complaint was sufficient to place
Heckler on notice of his personal involvement and to
state a claim against him, and as a result the complaint
against him should not have been dismissed sua sponte.
Alejo could not have challenged this dismissal on appeal
at the time the decision was rendered, because the dis-
missal of a complaint without prejudice is generally not
considered a final, appealable decision. See id.; see also
Hoskins v. Poelstra, 320 F.3d 761, 763 (7th Cir. 2003);
Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001);
Furnace v. Bd. of Trustees of S. Ill. Univ., 218 F.3d 666, 669
(7th Cir. 2000). A final order was not rendered in this case
until the court entered judgment pursuant to Rule 58. And
“[w]hen a final decision is appealed, the appeal brings up
all previous rulings of the district judge adverse to the
appellant.” Bastian, 892 F.2d at 682 (citing Asset Alloca-
tions & Mgmt. Co. v. W. Employers Ins. Co., 892 F.2d 566,
569 (7th Cir. 1989)). Thus, this appeal presents Alejo with
the opportunity to challenge all of the district court’s prior
adverse rulings. But if before this appeal Alejo would
have amended his complaint in accordance with what he
No. 01-1573 9
now asserts was an erroneous ruling, he would have
abandoned the principal arguments he raises here. Cf. id.
at 683. Rather than signifying his surrender of the ar-
gument raised here, his refusal to amend reflects, if any-
thing, his resolute adherence to it. We now turn to the
merits.
This case was filed before the enactment of the Prison
Litigation Reform Act of 1996 (“PLRA”). Therefore—pre-
PLRA—the court could have dismissed the claim against
Heckler only if the court found Alejo’s claim to be frivolous
or malicious. See 28 U.S.C. § 1915(d) (1994); Walker v.
Taylorville Corr. Ctr., 129 F.3d 410, 412 (7th Cir. 1997)
(“[B]ecause [the petitioner’s] appeal was filed before April
24, 1996, the effective date of the PLRA, we look to the
former version of § 1915(d) to see if the claim was ‘frivolous
or malicious,’ rather than asking in addition whether
the proposed complaint failed to state a claim upon which
relief can be granted, as the amended § 1915(e)(2)(B)
requires.”). Which is to say, it must have found that
Alejo could “make no rational argument in law or fact to
support his . . . claim for relief” against Heckler. Williams
v. Faulkner, 837 F.2d 304, 307 (7th Cir. 1988), affirmed sub
nom., Neitzke v. Williams, 490 U.S. 319 (1989).
A plaintiff bringing a civil rights action must prove that
the defendant personally participated in or caused the
unconstitutional actions. Duncan v. Duckworth, 644 F.2d
653, 655 (7th Cir. 1981). Thus, even under the pre-PLRA
standard of § 1915(d), we have upheld sua sponte dismissals
by the district court when the plaintiff did not allege
personal involvement on the part of the defendant. See,
e.g., Walker, 129 F.3d at 413 (citing Whitford v. Boglino, 63
F.3d 527, 530-31 (7th Cir. 1995)).
Here, Alejo’s complaint does not allege that Heckler
personally participated in or caused any allegedly unconsti-
10 No. 01-1573
tutional action.3 Although he named nine defendants in
his complaint, Alejo specifically accused only defendant
Heller of violating his constitutional rights. Rather than
make any personal allegations against Heckler, Alejo
accused groups of unknown “John Does” of participating
in the allegedly unconstitutional conduct.
Because of the factual circumstances in this case, that
phrase is insufficient to allege Heckler’s personal involve-
ment. The phrase “John Does” is fatally overbroad in
suggesting that an uncertain number of Bureau of Pris-
ons officials, potentially from every level, participated in
denying Alejo his constitutional rights. At the same time,
“John Does” is fatally underinclusive, because it indi-
cates that those defendants—other than Heller—who vio-
lated Alejo’s constitutional rights were unknown to him.
In fact, Alejo included Heckler as a named defendant at
USP Marion, thus plainly indicating that Heckler was
known to Alejo. Because only unknown John Does and
Heller were alleged to be personally involved, it follows
that Heckler was excluded from the claim.
To the extent that Alejo alleged unconstitutional con-
duct on behalf of USP officials that he knew and with whom
he had personally interacted, he had the burden to
name them specifically in his complaint. Absent this, the
district court could not infer that Heckler was an unknown
John Doe and was personally involved in the allegedly
unconstitutional conduct. For this reason, the sua sponte
dismissal of Heckler was proper.
3
We have learned about Heckler’s alleged interaction with Alejo
during the strip-search incident at issue only by virtue of Heller’s
substantive motions, which included as exhibits Alejo’s disciplin-
ary records, the contemporaneous incident report that Heckler
submitted, and Heller’s declaration regarding the events. The
amended complaint is silent regarding this specific incident
and the actors involved.
No. 01-1573 11
Heller’s Dismissal
In his report and recommendation on Heller’s second
motion for summary judgment issued September 9, 2000,
the magistrate judge found that Alejo’s claims arising
out of the strip-search incident necessarily implied the
invalidity of the disciplinary proceedings resulting from
that incident. Citing Heck and Miller v. Ind. Dept. of Corr.,
75 F.3d 330 (7th Cir. 1996), the magistrate judge con-
cluded that Alejo’s civil-rights claim would not accrue
until the decision to impose discipline had been reversed,
expunged, declared invalid, or otherwise called into ques-
tion. Citing our holding in Stone-Bey v. Barnes, 120 F.3d
718 (7th Cir. 1997), he then concluded that rather than
staying the case until Alejo successfully challenged the
validity of the underlying disciplinary proceedings (a
decision that could cause the case to remain on the court’s
docket in perpetuity should Alejo’s subsequent attempts
never prove successful), the case should be dismissed
without prejudice to allow Alejo to refile the claim at a
later date should the disciplinary proceedings be invali-
dated. See id. at 721 (applying Heck’s favorable-termina-
tion requirement to all decisions by prison disciplinary
boards that entail some finding of guilt in adjudicating
a disciplinary charge).
The district judge adopted the report and recommenda-
tion, holding that Heck barred Alejo’s Bivens-style claim.
The district court held that dismissal without prej-
udice, rather than a stay, was the proper way to dispose
of Alejo’s suit. In reaching this position, the district
court acknowledged that we had recently overruled Stone-
Bey, see Dewalt, 224 F.3d at 618, but noted that the invalid-
ity of the holding in Stone-Bey was “unrelated to the
principles at issue in this case.”
We disagree with that assessment. In DeWalt, this
court recognized that “a prisoner may bring a § 1983
12 No. 01-1573
claim ‘challenging the conditions of [his] confinement
where [he] is unable to challenge the conditions through
a petition for federal habeas corpus.’ ” Id. at 613 (quoting
Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir. 1999)). In other
words, our opinion in DeWalt holds that where a prisoner-
litigant challenges only the conditions of confinement,
rather than the fact or duration of his confinement, Heck’s
favorable-termination requirement does not apply, be-
cause federal habeas corpus relief is not available. See id.
at 617 (citing Pischke v. Litscher, 178 F.3d 497, 500 (7th
Cir. 1999) (holding that habeas relief is restricted to
claims for which the prisoner “is seeking to ‘get out’ of
custody in some meaningful sense”), and Graham v.
Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (stating that if
a prisoner is challenging “merely the conditions of his
confinement his proper remedy is under civil rights law”
and not federal habeas)).
Under DeWalt, Alejo’s claim against Heller, which arose
out of the strip-search disciplinary proceedings that re-
sulted in his removal from the B-Unit and pretrans-
fer programs, challenges the conditions of his confinement
and cannot be barred by Heck. The district court’s holding
to the contrary was therefore erroneous.
Nevertheless, Heller argues that we should affirm the
district court’s dismissal on other grounds; namely, his
summary-judgment arguments that he was not per-
sonally involved in the August 12, 1994 strip-search
incident and that even if he was, he is entitled to qualified
immunity. This Court has unequivocally stated that with-
out cross-appeal, an appellee may not “attack the decree
with a view either to enlarging his own rights there
under or of lessening the rights of his adversary, whether
what he seeks is to correct an error or to supplement
the decree with respect to a matter not dealt with be-
low.” United States ex rel. Stachulak v. Coughlin, 520 F.2d
931, 937 (7th Cir. 1975) (quotations omitted). The district
No. 01-1573 13
court’s dismissal without prejudice pursuant to its belief
that Heck barred Alejo’s claim was not a ruling on the
merits, see Greenwell v. Aztar Ind. Gaming Corp., 268 F.3d
486, 494 (7th Cir. 2001), cert. denied, 535 U.S. 1034 (2002),
whereas a grant of summary judgment on the basis of
either of Heller’s arguments would be. Accordingly, Heller
seeks to enlarge his rights and supplement the district
court’s decree with a ruling on the merits that was not
reached below. He cannot do this without filing a cross-
appeal.
III. CONCLUSION
Because Alejo’s complaint did not allege (and in fact
precluded) Heckler’s personal involvement in the alleged
deprivation of Alejo’s constitutional rights, the district
court’s sua sponte dismissal of Heckler at the in forma
pauperis stage was proper. The district court, however,
incorrectly decided that Alejo’s Bivens-style claim against
Heller was barred by Heck’s favorable-termination re-
quirement. For these reasons, the dismissal of Keith
Heckler is AFFIRMED, and the dismissal of the suit against
Gary E. Heller is REVERSED and the case is REMANDED
for further proceedings.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-13-03