                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1337

B RIAN S. B URD ,
                                                  Plaintiff-Appellant,
                                   v.

G AIL SESSLER, et al.,
                                               Defendants-Appellees.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 1:10-cv-05164—Edmond E. Chang, Judge.



    A RGUED O CTOBER 3, 2012—D ECIDED D ECEMBER 17, 2012




  Before F LAUM, R IPPLE and W ILLIAMS, Circuit Judges.
  R IPPLE, Circuit Judge.     Brian Burd alleges in this
action under 42 U.S.C. § 1983 that prison officials
deprived him of access to the courts by preventing him
from using library resources to prepare a motion to
withdraw his guilty plea. As the case comes to us, he
seeks damages from the prison officials. The district
court held that such a claim is barred by Heck v.
Humphrey, 512 U.S. 477 (1994). We agree with the dis-
trict court and therefore affirm its judgment.
2                                             No. 12-1337

                            I
                    BACKGROUND
                            1.
   On December 7, 2009, Mr. Burd pleaded guilty in
Illinois state court to attempted burglary. Under Illinois
practice, he had thirty days to file a motion to withdraw
his guilty plea. For the first twenty-nine days of this
period, he was held at prison facilities that lacked
library resources of any kind. On the thirtieth day,
Mr. Burd was transferred to Sheridan Correctional
Center. He immediately asked to use its library, but
Sheridan officials told him the library was closed.
   Mr. Burd missed the deadline to file his motion, but
he continued to seek access to Sheridan’s law library. He
filled out request slips, but each time he was denied
access because the library was closed. When he
explained to defendant Gail Sessler, the educational
administrator at Sheridan, that he wanted to research
a motion to withdraw his guilty plea or an appeal of
his sentence, she told him that any such action would
be untimely and denied him access to the library.
Mr. Burd also requested that a fellow inmate, Todd
Howell, be permitted to assist him with his motion.
He never received a response to his request, and when
he filed a grievance about the failure to respond, he
was told that the matter was moot because Howell
had been transferred from Sheridan.
  Mr. Burd did not seek to set aside his conviction
through federal or state habeas corpus before filing this
No. 12-1337                                                     3

§ 1983 action. In November 2011, Mr. Burd was paroled
from prison. The mandatory supervised release portion
of his sentence was scheduled to expire in November 2012.


                                2.
  In his complaint, Mr. Burd alleges that prison officials
at Sheridan and other Illinois correctional officials
denied him his right of access to the courts by depriving
him of the library materials that he needed to file
his motion and to research possible grounds for ap-
pealing his sentence. The district court, after dismissing
Mr. Burd’s claim for injunctive relief,1 invited the
parties to address whether, under Heck, a favorable deter-
mination on the damages claim necessarily would
imply the invalidity of Mr. Burd’s conviction and
therefore warrant the dismissal of the damages claim as
well. The defendants subsequently moved to dismiss
the claim for damages, arguing that Heck barred such
a claim. The district court granted the motion.



1
  In his amended complaint, Mr. Burd sought injunctive
relief. He asked the district court to require that the defendants
“provide access to the library and/or library resources to
Burd and other inmates in the future.” R.22 at 7. On June 21,
2011, the district court dismissed without prejudice this
prayer for injunctive relief based on Mr. Burd’s concession
that he lacked standing to raise such a claim because, at the
time of filing, he no longer was housed in a prison. R.55 at 1-2.
Mr. Burd does not appeal this dismissal and so his entitle-
ment to injunctive relief is not before us on appeal.
4                                              No. 12-1337

                            II
                     DISCUSSION
  As this case comes to us, it presents the question of
whether Mr. Burd may seek damages against the defen-
dants in their individual capacities for the alleged viola-
tion of Mr. Burd’s right of access to the courts, despite
Heck’s “favorable termination requirement.” See Nelson
v. Campbell, 541 U.S. 637, 646-47 (2004). In Nelson, the
Supreme Court explained succinctly that requirement:
    Although damages are not an available habeas
    remedy, . . . a § 1983 suit for damages that would
    necessarily imply the invalidity of the fact of an
    inmate’s conviction, or necessarily imply the
    invalidity of the length of an inmate’s sentence,
    is not cognizable under § 1983 unless and until
    the inmate obtains favorable termination of a
    state, or federal habeas, challenge to his convic-
    tion or sentence.
Id. at 646 (quoting Heck, 512 U.S. at 487) (internal quota-
tion marks omitted); see Edwards v. Balisok, 520 U.S. 641,
648 (1997). The Court reasoned that, because habeas
corpus is the exclusive remedy for a challenge to the fact
or duration of one’s confinement, see Preiser v. Rodriguez,
411 U.S. 475, 488-90 (1973), an inmate must first seek to
set aside his conviction through habeas corpus before
initiating a § 1983 action that necessarily calls that con-
viction into doubt. Heck, 512 U.S. at 487.
 Mr. Burd submits that the favorable termination re-
quirement does not bar his claim for monetary damages
No. 12-1337                                                5

because, in this situation, such a judgment would not
necessarily call into question the validity of his conviction
or sentence. He further argues that the unavailability
of collateral relief at this point in the litigation makes
Heck’s favorable termination requirement inapplicable.
We shall examine each of these arguments in turn.


                             A.
  We address first Mr. Burd’s contention that the
favorable termination requirement of Heck and its
progeny is inapplicable because an award of damages
for having been denied an opportunity to research his
motion to withdraw his plea or his right to appeal his
sentence would not necessarily imply that his conviction
or sentence is invalid. Mr. Burd submits that his situa-
tion is analogous to those presented to the Supreme
Court in Wilkinson v. Dotson, 544 U.S. 74 (2005), and in
Skinner v. Switzer, 131 S. Ct. 1289 (2011). In Dotson, the
Court examined the application of Heck to a suit chal-
lenging procedures in a prison parole hearing; in Skinner,
the Court examined the application of Heck to a suit
seeking DNA testing. In both cases, the Court held that
Heck did not bar the § 1983 action for injunctive relief.
In Dotson, the Court concluded that a successful
challenge to the procedures used in prison parole
hearings would not necessarily entail immediate or
speedier release. 544 U.S. at 82. In Skinner, the Court
noted that DNA testing “may prove exculpatory,
inculpatory, or inconclusive.” 131 S. Ct. at 1293.
6                                                No. 12-1337

  In both of these cases, the plaintiff was seeking pro-
spective relief to ensure that he was treated fairly in
the underlying proceedings. In Dotson, the plaintiff
sought a change in parole procedures under which his
case would be heard. He asked for no alteration in his
confinement status, only that any adjudication of that
status be conducted in a manner that comported with
federal constitutional standards. In Skinner, the plaintiff
sought access to biological evidence for the purpose
of forensic testing. 131 S. Ct. at 1296. He planned to use
the tests to seek relief from a criminal conviction. In both
cases, the Justices held that the favorable termination
requirement of Heck was not implicated because, should
the plaintiff obtain the relief requested, the validity of his
underlying conviction or confinement would not be put
in question. Dotson, 544 U.S. at 82; Skinner, 131 S. Ct. at
1298. Rather, the prisoner simply would have been af-
forded procedural pathways that, if successfully em-
ployed, might lead to the overturning of the underlying
conviction. Dotson and Skinner simply apply the principle
described in Heck: “[I]f the district court determines
that the plaintiff’s [§ 1983] action, even if successful,
will not demonstrate the invalidity of any outstanding
criminal judgment against the plaintiff, the action
should be allowed to proceed, in the absence of some
other bar to the suit.” 512 U.S. at 487.
  Mr. Burd sees the principle articulated in Skinner and
Dotson as controlling in his case. He points out that his
access-to-courts claim does not challenge directly his
underlying criminal conviction, despite the fact that he
admits that he sought access to the courts to withdraw
No. 12-1337                                                7

his guilty plea. Invoking Lewis v. Casey, 518 U.S. 343
(1996), and Christopher v. Harbury, 536 U.S. 403 (2002),
Mr. Burd further argues that “the loss of an opportunity
to seek some particular order of relief” can form the
basis of an access-to-courts claim. Harbury, 536 U.S. at
414 (emphasis added). Consequently, Mr. Burd main-
tains that he need only demonstrate that his lost, under-
lying claim—here, a lost opportunity to withdraw a
guilty plea or to appeal—would have been non-frivolous
or “arguable,” not that it would have been successful.
See id. at 415; Lewis, 518 U.S. at 353 n.3, 356; In re Maxy,
674 F.3d 658, 660-61 (7th Cir. 2012).
  This argument gives too crabbed a reading to the
scope of the bar established in Heck: “[T]he district court
must consider whether a judgment in favor of the
plaintiff would necessarily imply the invalidity of his
conviction or sentence.” 512 U.S. at 487 (emphasis added).
This bar requires us to evaluate the substantive require-
ments for obtaining the particular remedy—damages—
that Mr. Burd seeks on his access-to-courts claim. We
addressed the problem of damages in a prisoner access-to-
courts claim in Hoard v. Reddy, 175 F.3d 531 (7th Cir. 1999).
In Hoard, an inmate alleged that prison officials had
prevented him from mounting a state-court collateral
attack on his conviction. He therefore brought an action
against them for damages. We concluded “that only
prospective relief is available in a prisoner’s suit com-
plaining of denial of access to the courts unless he
has succeeded in getting his conviction annulled, since
otherwise an effort to obtain damages would be blocked
by Heck.” Id. at 533. Hoard acknowledged that this
8                                               No. 12-1337

ruling seemed paradoxical alongside Lewis’s holding that
a § 1983 plaintiff in an access-to-courts case needs only
a non-frivolous, rather than meritorious, claim:
    To get damages you must prove you lost some-
    thing of monetizable value; but this is not required
    for an injunction—indeed, the inadequacy of one’s
    damages remedy is normally a prerequisite to
    injunctive relief. If a prisoner whose access to
    the courts is being blocked in violation of the
    Constitution cannot prove that, had it not been
    for the blockage, he would have won his case or
    at least settled it for more than $0 (the point em-
    phasized in Lewis), he cannot get damages but he
    can get an injunction. In a case such as Heck, where
    the prisoner is complaining about being hindered
    in his efforts to get his conviction set aside, the
    hindrance is of no consequence if the conviction
    was valid, and so he cannot get damages until the
    conviction is invalidated. But suppose that he is
    complaining instead about being hindered in his
    efforts to rectify illegal prison conditions. Since
    it is well known (and emphasized in both Lewis
    and Walters) that colorable claims have a settle-
    ment value, the prisoner may be able to show that
    had he not been hindered in prosecuting his
    claim he might have gotten some money for it,
    even if it wasn’t a sure winner. He has to show
    that the claim was colorable and so had
    some value in the litigation market but he does not
    have to establish the validity (as distinct from
    colorableness) of the claim as a precondition to
No. 12-1337                                                  9

    obtaining damages. In the setting of Heck, there
    is nothing corresponding to a colorable claim;
    either the conviction was invalid, in which case
    the defendant suffered a legally cognizable harm,
    or it is not and he did not.
Hoard, 175 F.3d at 533-34. What we said in Hoard is com-
patible with what we said in Nance v. Vieregge, 147 F.3d
589, 591 (7th Cir. 1998). Nance, an Illinois state prisoner,
brought an action alleging denial of access to the courts
after prison officials lost a box containing litigation-
related documents during a transfer of Nance from
one institution in the Illinois prison system to another.
In affirming the district court’s dismissal of the case,
we emphasized the role that remedy plays in deter-
mining the applicability of Heck:
    To establish a deprivation of access to the courts, a
    prisoner must show that unjustified acts or condi-
    tions “hindered his efforts to pursue a legal claim.”
    Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135
    L.Ed.2d 606 (1996). If the hindrance is ongoing,
    prospective relief can compel the state to restore
    access so that the claim may be vindicated. This
    was the theory behind the order in Bounds v.
    Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72
    (1977), to improve the prison’s law library. But
    Nance does not protest an ongoing hindrance
    or contend that another deprivation of legal mate-
    rials is likely. He has been released from the
    state’s custody. Only damages are available. But
    damages for what injury? If the injury in question
10                                              No. 12-1337

     is losing the underlying case, then Heck v.
     Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d
     383 (1994), comes into play. Heck holds that a
     damages remedy that necessarily implies the
     invalidity of a criminal conviction (or the loss of
     good-time credits, see Edwards v. Balisok, 520
     U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997))
     is impermissible while that conviction stands.
     Nance pleaded guilty; his motion to withdraw the
     plea was denied; and although the prison’s uncon-
     stitutional hindrance of his efforts to with-
     draw the plea (if that is what occurred) would
     be a good ground for a new hearing on the motion
     to set aside the plea, it would not establish that
     Nance is entitled to damages for wrongful incar-
     ceration—not unless he went to trial and was
     acquitted, or the invalidity of his incarceration
     was established in some other fashion. The holding
     of Lewis that a claim based on deprivation of
     access to the courts requires proof of concrete
     injury, combined with the holding of Heck, means
     that a prisoner in Nance’s position must have
     the judgment annulled before damages are avail-
     able for wrongful imprisonment.
Nance, 147 F.3d at 591.
  The approach of Nance and Hoard establish the path
that we must follow today. Because the underlying claim
for which Mr. Burd sought access to the prison law
library was the opportunity to withdraw his guilty
plea, he cannot demonstrate the requisite injury without
No. 12-1337                                                   11

demonstrating that there is merit to his claim that he
should have been able to withdraw the plea. Such a
showing necessarily would implicate the validity of the
judgment of conviction that he incurred on account of
that guilty plea. The rule in Heck forbids the maintenance
of such a damages action until the plaintiff can demon-
strate his injury by establishing the invalidity of the
underlying judgment. Accordingly, we conclude that
Mr. Burd has not established a basis for recovering
any type of damage relief under § 1983.2


                               B.
  Alternatively, Mr. Burd urges that, even if success in
his § 1983 action would imply that his conviction is
invalid, his claim for damages should not be dismissed
under Heck because collateral relief is not available to
him. We have held that, where a plaintiff cannot obtain
collateral relief to satisfy Heck’s favorable termination
requirement, his action may proceed under § 1983
without running afoul of Heck. See Simpson v. Nickel, 450
F.3d 303, 307 (7th Cir. 2006); DeWalt v. Carter, 224 F.3d


2
   Mr. Burd states in passing that, if permitted to proceed to
trial, he would be entitled to nominal damages in addition to
compensatory and possibly punitive damages. We do not
reach this issue because Mr. Burd did not request this relief
in his amended complaint and fails to offer more than a
brief mention of it in his brief before this court. Specifically,
he makes no argument as to how he could maintain an action
for nominal damages in light of the Heck bar. See Edwards
v. Balisok, 520 U.S. 641, 644-46 (1997).
12                                                     No. 12-1337

607, 613, 616-18 (7th Cir. 2000); Carr v. O’Leary, 167 F.3d
1124, 1127 (7th Cir. 1999).3
  Relying on this principle, Mr. Burd focuses on his
recent release from prison and his imminent release
from mandatory supervisory release. Release from
prison does not, standing alone, eliminate the possibility
of habeas corpus relief because mandatory supervised
release often entails sufficient restraints on liberty to
meet the “in custody” requirement of habeas corpus. See
Cochran v. Buss, 381 F.3d 637, 640 (7th Cir. 2004). At the
time of argument, Mr. Burd was still serving super-
vised release, which was scheduled to end Novem-
ber 2012. Once Mr. Burd’s supervised release expires,
any subsequent habeas corpus petition may be foreclosed
due to failure to meet the “in custody” requirement at
the time of filing. Cf. Spencer v. Kemna, 523 U.S. 1, 8 (1998).4


3
   This issue has caused a split among the circuits. See Cohen v.
Longshore, 621 F.3d 1311, 1315-16 (10th Cir. 2010) (collecting
cases). The Supreme Court has not specified, in a majority
holding, whether Heck applies where habeas corpus relief is
unavailable, although five Justices in one opinion expressed
their views that it should not. See Spencer v. Kemna, 523 U.S. 1,
19-21, 25 n.8 (1998) (concurring and dissenting opinions); see
also Muhammad v. Close, 540 U.S. 749, 752 n.2 (2004) (recognizing
the open question but declining to resolve it). We follow our
previous opinions in this regard.
4
   In Nance v. Vieregge, 147 F.3d 589 (7th Cir. 1998), we noted that
Illinois offers a remedy “along the lines of coram nobis to
wipe out lingering civil disabilities” and suggested that the
                                                       (continued...)
No. 12-1337                                                 13

He claims, however, that habeas corpus relief is no
longer available to him since he is no longer in custody.
We cannot accept this argument. In agreement with
those circuits that already have had to address the situa-
tion, we hold that Heck applies where a § 1983 plaintiff
could have sought collateral relief at an earlier time
but declined the opportunity and waited until collateral
relief became unavailable before suing. See Powers v.
Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 601
(6th Cir. 2007); Guerrero v. Gates, 442 F.3d 697, 704-05 (9th
Cir. 2006). Permitting a plaintiff who ignored his oppor-
tunity to seek collateral relief while incarcerated to skirt
the Heck bar simply by waiting to bring a § 1983 claim
until habeas is no longer available undermines Heck and
is a far cry from the concerns, as we understand them,
of the concurring Justices in Spencer for those indi-
viduals who were precluded by a legal impediment
from bringing an action for collateral relief.
  The record reveals no impediment that prevented
Mr. Burd from seeking collateral relief during his period
of incarceration. Mr. Burd has not explained his failure
to seek such relief while he was still in custody or why
such failure is excusable. We therefore join the Sixth
and Ninth Circuits in holding that Heck bars a § 1983



4
  (...continued)
availability of such a remedy to someone in Mr. Burd’s
position might preclude monetary relief under the rule of
Heck. Id. at 591. Neither party has addressed this possibility;
we therefore pretermit further consideration of it here.
14                                           No. 12-1337

action where: (1) favorable judgment would necessarily
call into question the validity of the underlying convic-
tion or sentence and (2) the plaintiff could have pursued
collateral relief but failed to do so in a timely manner.
We therefore conclude that this case is barred by Heck.


                      Conclusion
  The district court correctly ruled that Heck bars
Mr. Burd’s action under § 1983. Accordingly, we affirm
the judgment of the district court.
                                               A FFIRMED




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