Clarke v. Stalder

REYNALDO G. GARZA, Circuit Judge,

dissenting:1

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 L.Ed.2d 906 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.

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, “[ajeeordingly, we find that Clarke was punished for violation of the ‘no threats of legal redress’ portion of Rule 3.” My knowledgeable 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.

Clarke’s admission that he threatened to sue provided a convenient basis for the Disci*192plinary 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 writé 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]e-port 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. In contrast, the Disciplinary Board’s rebanee 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 bebigerenee, 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 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.

(Appebant’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 S write-up for Defiance:
*193(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 lohatsoever suggesting that Captain Mou-lard or the Disciplinary Board based their decisions solely and exclusively on Charles Clarke’s threat of legal redress.

(Id. (italics added)).

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)).

[TJhe 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_ [Bjecoming belligerent and threatening to see who would win both constitute 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 Mou-lard; 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 “[hjad [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,” 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 *194an 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 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 plaintiffs action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgement against the plaintiff, the action should be allowed to proceed2....” 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.

lt 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 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 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 penolog*195ical goals. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (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.

. Judge Harold R. DeMoss, Jr., concurs in the dissent. Chief Judge Henry A. Politz, Judges Jerry E. Smith and Carl E. Stewart join the dissent only in regards to part I of this opinion.

. 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 plaintiffs 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, 114 S.Ct. 2364.