
    Dale AUSTIN, Plaintiff, v. Christopher ELLERD, Raymond Chavez, Mary Greene, John Doe, and Oscar Shade, Defendants.
    Civil Action No. 95-C-487.
    United States District Court, E.D. Wisconsin.
    March 21, 1997.
    
      Gillam Kerley, Madison, WI, for Plaintiff.
    Stephen J. Nicks, Asst. Atty. Gen., Madison, WI, for Defendants.
   DECISION AND ORDER GRANTING SUMMARY JUDGMENT

REYNOLDS, District Judge.

Plaintiff Dale Austin (“Austin”), formerly a prisoner at Racine Correctional Institution (“RCI”), alleges that defendant prison officials disciplined him in retaliation for the exercise of his First Amendment rights, and that the discipline was imposed without procedural and substantive due process. Before the court is defendants’ motion for summary judgment, which the court grants.

BACKGROUND

On January 19, 1993, defendant Christopher Ellerd (“Ellerd”), the security director at RCI, issued a conduct report which charged Austin with violating Wisconsin Administrative Code DOC §§ 303.25 (disrespect) and 303.271 (lying about staff). The report was written after Ellerd received a copy of a letter to the editor of Anarchy Magazine, which was written by Austin. Anarchy Magazine is a small-circulation national magazine which specializes in political commentary and analysis to which Austin was a subscriber. The letter stated in part:

I also seen some pigs today calling themselves a “Program Review Committee.” They sarcastically assured me that if I kept my behavior on good terms that I could be let out of this hole in about 90 days. Upon leaving the “Program Review Committee” they asked if I had anything to say, I said, “Yes, I do, you can all get fucked!” And I was promptly escorted back to my cell in handcuffs and belly chains by the pig guards. Also since I refuse to stop using the anarchy symbol the pig known as Capt. Milliren is continuing to write me major conduct reports. The pig known as Capt. Milliren says to the other ignorant pigs, who believe her, that anarchy and its symbol is used by ‘Satanists’ and ‘White Supremacists.” Yes, this is the type of mentality I have to endure behind these locked doors. And as I keep on refusing to obey their ignorant rules and lies I get punished more.... this certain pig known as Capt. Milliren and her pig associates have been retaliating against me. Why else would I be sitting in the hole for 120 and more days coming?

(Oct. 11, 1995 Jensen Aff., Ex. 2.) The complete text of Austin’s letter is reproduced in the Appendix to this decision. Defendant Raymond Chavez reviewed and approved the conduct report.

A full due process hearing was held on February 5, 1993. The adjustment committee, made up of defendants Mary Greene and John Doe, found Austin guilty of both charges contained in the conduct report (disrespect and lying about staff). Austin was given eight days in adjustment segregation and 180 days in program segregation. The reason for the adjustment committee’s decision given was:

While inmate claims no harm has been done or was intended and that he did not lie about or disrespect staff, the body of the C.R. [conduct report] and examination of magazine article show that the position of staff member was directly slighted by use of derogatory terms and his provocative statements in a public forum.

(Jensen Aff., Ex. 3.)

Austin filed an administrative appeal on February 6, which defendant Oscar Shade, the RCI warden, denied.

DISCUSSION

Austin’s claims are before the court pursuant to 42 U.S.C. § 1983. While defendants raise substantive challenges to these claims, there is an important procedural issue which affects this court’s jurisdiction. Under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), Austin must first challenge the decision to discipline him in state court and, if that challenge fails, file a habeas corpus action under 42 U.S.C. § 2254 before he can sue for damages under § 1983.

For criminal sentences and prison disciplinary punishments, the state court has the first chance to correct any errors. Before a prisoner may file a habeas corpus action (28 U.S.C. § 2254) to restore lost good time, the prisoner must appeal the adverse prison disciplinary findings to state court. Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th Cir.1996) (applying Heck to prison disciplinary decisions). Although 42 U.S.C. § 1983 allows a prisoner to recover damages for a constitutional violation and has no requirement of exhausting state remedies, a prisoner cannot bring a claim that could justify habeas corpus relief, unless the prisoner has complied with procedural prerequisites for a habeas case. Id. Otherwise, a prisoner could bring a § 1983 suit, and the federal court’s findings would bind a state court reviewing the disciplinary decision.

The nature of the claim, not the relief sought, determines whether a prisoner has met the § 2254 requirements before filing a § 1983 claim. This court can make no finding that would justify vacating or reversing the disciplinary decision, or punishment. In other words, if the factual findings necessary for a successful § 1983 claim would, if made by a state court, vacate or reverse the disciplinary decision or punishment, this court may not hear the § 1983 case. Id.

Austin’s due process claims, which challenge the disciplinary hearing, clearly relate to issues which could be raised under § 2254. Further, under the facts of this case, Austin’s retaliation claim is intertwined with the claims which could be raised in a habeas proceeding. If this court were to decide the retaliation claim, the decision could have a preclusive effect on a state court which should make the initial determination of the issues raised by Austin in challenging the disciplinary process which ensued from his authorship of the letter. The adjustment committee hearing would not have occurred, and Austin would not have been disciplined, if he had not written the letter. If Austin would be awarded damages on his First Amendment claim, it could cast doubt on the adjustment committee’s finding that he violated prison rules. All of Austin’s claims must therefore be dismissed as they are not properly before the court. Id. at 242-243, 245; Lewis v. Richards, 107 F.3d 549, 555 (7th Cir.1997).

CONCLUSION

Defendants Christopher Ellerd, Raymond Chavez, Mary Greene, John Doe, and Oscar Shade’s motion for summary judgment is GRANTED and this action is DISMISSED.

APPENDIX

Austin’s letter to Anarchy Magazine reads as follows:

Hi Anarchy and readers,
I am currently at a Wisconsintration camp doing 120 days in the hole for various offenses such as (1) smoking hemp, (2) possession of a bong, (3) possession of a tattoo gun, (4) disobeying the pigs’ orders, and (5) using the word ‘anarchy’ and its symbol the circled ‘A’ in letters to my brother and friends who are also in various Wiseonsintraiton camps. The hole consists of a bed, a sink, and a toilet. Meals consist of mainly dead animal stuffs with- one small helping of vegetables, bread and sometimes a salad. So, being as how I am a vegetarian I really have to suffer. Can you imagine doing 120 days locked in a cell cause of 5 charges so petty? I also seen
some pigs today calling themselves a “Program Review Committee.” They sarcastically assured me that if I kept my behavior on good terms that I could be let out of this hole in about 90 days. Upon leaving the “Program Review Committee” they asked if I had anything to say, I said, “Yes, I do, you can all get fucked!” And I was promptly escorted back to my cell in handcuffs and belly chains by the pig guards. Also since I refuse to stop using the anarchy symbol the pig known as Capt. Milli-ren is continuing to write me major conduct reports. The pig known as Capt. Milliren says to the other ignorant pigs, who' believe her, that anarchy and its symbol is used by ‘Satanists’ and “White Supremacists.” Yes, this is the type of mentality I have to endure behind these locked doors. And as I keep on refusing to obey their ignorant rules and lies I get punished more. I must thank Mr. Noam Chomsky who wrote to the prison warden and security director, explaining what anarchy really means. Due to Mr. Chomsky I did get all the books and zines the pigs here confiscated returned to me. But still, this certain pig known as Capt. Milliren and her pig associates have been retaliating against me. Why else would I be sitting in the hole for 120 and more days coming? Of course each of the charges for most other people would be no more than 3 days in the hole for pot and no more than 8 days for any of the other charges. But for an anarchist who reads and learns the truth about pigs and the pig system it’s a different story. Anyone who can help keep me company by letters, zines, books, pictures (no polaroids) would really help my days out. Books and zines are only allowed through stores or publishers. So just use bold type or rubber stamp for return address to make it look like it’s coming from a store. A few bucks for stamps would be cool too cause stamps & other stuff are not allowed through the mail. We gotta but them here. Also with a few bucks I can buy dried fruit and nuts from canteen. These meals are tough on vegetarians, and I would not be in prison if I had money myself.
I’ll be looking for some mad soon. It’s boring as hell here, well, it is a man-made hell. I’m gonna continue to smoke hemp, do tattoos, piercings, etc. And when appropriate tell the pigs to get fucked.  