09-3515 Moore v. Mahone

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Civil Procedure
Dismissal

Where a prisoner’s pro se complaint of excessive force failed to state a claim, it should have been dismissed without prejudice.

“The plaintiff was proceeding pro se. He may not have heard of Heck v. Humphrey when he filed his complaint. All the judge said in dismissing the claim was that ‘as plaintiff lost good time regarding the March 2, 2007, altercation with [the two officers], his claim that they used excessive force against the plaintiff is barred by Heck v. Humphrey.’ This was too terse, and in fact was erroneous. That the plaintiff was disciplined didn’t trigger the application of Heck, as the judge implied; what triggered it was the fact that the plaintiff was challenging the findings of the disciplinary board. The judge should have said that, and rather than dismissing the case with prejudice should either have retained it but warned the plaintiff that he could not challenge the findings made by the disciplinary board or have permitted him to file a second amended complaint that would delete all allegations inconsistent with those findings. McCann v. Neilsen, 466 F.3d 619, 622 (7th Cir. 2006). That might have been a preferable alternative to letting the existing complaint stand and ignoring the challenges in it to the disciplinary findings, since those challenges permeate the complaint and the plaintiff may be unwilling to abandon them.”

Reversed and Remanded.

09-3515 Moore v. Mahone

Appeal from the United States District Court for the Central District of Illinois, Baker, J., Posner, J.

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