                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-1728
ALEX GILBERT,
                                        Plaintiff-Appellant,
                             v.

TIMOTHY COOK, NIGEL PHELPS, and KEVIN WALKER,
                                      Defendants-Appellees.
                       ___________
          Appeal from the United States District Court
               for the Southern District of Illinois.
     No. 01-286-CJP—Clifford J. Proud, Magistrate Judge.
                       ____________
  ARGUED DECEMBER 6, 2007—DECIDED JANUARY 9, 2008
                   ____________


  Before EASTERBROOK, Chief Judge, and CUDAHY and
RIPPLE, Circuit Judges.
  EASTERBROOK, Chief Judge. Heck v. Humphrey, 512
U.S. 477 (1994), holds that the plaintiff in an action under
42 U.S.C. §1983 may not pursue a claim for relief
that implies the invalidity of a criminal conviction, unless
that conviction has been set aside by appeal, collateral
review, or pardon. Edwards v. Balisok, 520 U.S. 641
(1997), extends this doctrine to the decisions of prison
disciplinary tribunals. A magistrate judge, presiding by the
parties’ consent in this action under 42 U.S.C. §1983,
concluded that Heck and Edwards prevent the plaintiff
from introducing evidence about what happens after the
events that have been the subject of the prior adjudication.
2                                             No. 05-1728

  Alex Gilbert was an inmate at Tamms Correctional
Center in Illinois during March 1999. His account of what
defendants (three guards) did is disputed. Because the
magistrate judge blocked the jury from hearing Gilbert’s
full story, we must summarize things from his perspec-
tive, and the reader must bear in mind that the guards
have a different version. Details are irrelevant for cur-
rent purposes; we give an outline.
  As the guards escorted a handcuffed and shackled
Gilbert up the stairs toward his cell, they tripped him.
After returning Gilbert to his cell, the guards closed the
door and told him to place his arms through the chuckhole,
an opening that can be used to cuff and uncuff prisoners’
hands while their limited mobility reduces the risk of
violence to the guards. A prison disciplinary board found
that Gilbert was nonetheless able to punch one of the
guards while they were removing his cuffs. Given Heck
and Edwards, Gilbert is bound by this finding. (The
board revoked a year’s worth of Gilbert’s good-time
credits; he could have sought review under 28 U.S.C. §2254
but did not.) The guards raised the ante by wrenching
Gilbert’s left arm, using it as a lever and the edge of the
chuckhole as the fulcrum. That violence separated
Gilbert’s shoulder (causing excruciating pain) and scraped
off about six inches of skin (causing more pain and a
prominent scar). Gilbert contends that this on-the-spot
corporal punishment violates the eighth amendment.
  Gilbert denies striking anyone. He would like to tell a
jury his story—that the guards tripped him in the stair-
well and continued the assault through the chuckhole,
all without provocation. In response to the magistrate
judge’s insistence that he not contradict the board’s
decision, however, Gilbert attempted to present his
claim without either contesting or accepting the board’s
finding. Given the board’s (incontestable) finding, Gilbert
had to argue that the guards wrenched his arm out of its
No. 05-1728                                               3

socket in retaliation for an act that Gilbert neither con-
cedes nor denies. This would be a difficult task for a
lawyer and was even more difficult for a poorly educated
layman—as Gilbert, who has been in prison since he
was 14, could not find a lawyer willing to represent him,
and the magistrate judge declined to recruit counsel on his
behalf. Gilbert’s struggle to proceed without confessing
that he had punched a guard frustrated the magistrate
judge; the judge’s effort to enforce the rule of Heck and
Edwards frustrated and confused Gilbert.
  Eventually the magistrate judge directed Gilbert not
to present any evidence about what happened after he
reached the top of the stairs (which is to say, after he
returned to his cell). That ruling effectively gave judg-
ment for the defendants as a matter of law (see Fed. R.
Civ. P. 50), because, without evidence of what happened
after he placed his arms in the chuckhole, Gilbert could
not show that the guards laid a finger on him. Gilbert
rested his case without being allowed to present the bulk
of his evidence, and the magistrate judge then formally
granted the defendants’ Rule 50 motion.
   If Gilbert had been willing to concede that he had
punched a guard, he would have had clear sailing. Like
the law of issue and claim preclusion, Heck prevents a
litigant from contradicting a valid judgment. A contention
that a guard struck back after being hit is compatible
with Heck. Otherwise guards (and for that matter any
public employee) could maul anyone who strikes them,
without risk of civil liability as long as the private party
is punished by criminal prosecution or prison discipline
for the initial wrong. One major function of the due pro-
cess clause is to ensure that a wrongdoer’s punishment
comes after a hearing, rather than being meted out on the
spot by a public official’s fists or weapons. A prison
disciplinary panel lacks authority to prescribe, as the
punishment for striking a guard, a separated shoulder
4                                             No. 05-1728

and a gash in a prisoner’s arm; guards who are dissatis-
fied by the slow pace and (it may seem to them) light
punishments available through the formal disciplinary
apparatus have no right to take matters into their own
hands by beating their charges. Just as Wallace v. Kato,
127 S. Ct. 1091 (2007), holds that Heck does not affect
litigation about police conduct in the investigation of a
crime, so we hold that Heck and Edwards do not affect
litigation about what happens after the crime is completed.
Public officials who use force reasonably necessary to
subdue an aggressor are not liable on the merits; but
whether the force was reasonable is a question that may
be litigated without transgressing Heck or Edwards. See
VanGilder v. Baker, 435 F.3d 689, 692 (7th Cir. 2006).
  Is a plaintiff’s confession to his own offense—a confes-
sion that might facilitate a criminal prosecution on top of
the prison discipline—a precondition to a civil remedy
against public officials who respond with excessive force?
The magistrate judge thought so, relying principally on
Okoro v. Callaghan, 324 F.3d 488 (7th Cir. 2003). But
Okoro did not maintain an agnostic position toward his
conviction; he advanced a claim that could not succeed
unless the conviction was invalid. Despite being con-
victed of selling drugs to an undercover officer, Okoro
maintained that he had been trying to sell, not drugs, but
jewels, which the police stole. He demanded the return of
the gems or damages in their stead. That argument was
incompatible with his conviction. Although Okoro might
have tried to argue that he offered both drugs and gems,
and that the officers bought the former while stealing
the latter—or that he sold drugs on one occasion while
offering jewels on another—he insisted that his inven-
tory was jewelry and nothing else. A plaintiff “is master
of his ground,” 324 F.3d at 490, and having chosen a
ground that could not be reconciled with his conviction
Okoro had to lose, we concluded.
No. 05-1728                                                 5

  An argument along the lines of “The guards violated my
rights by injuring me, whether or not I struck first” does
not present the sort of inconsistency that doomed Okoro’s
suit. To put Gilbert’s claim this way is to show that his
success would not imply the invalidity of the decision
revoking his good-time credits. Only a claim that “neces-
sarily” implies the invalidity of a conviction or disciplinary
board’s sanction comes within the scope of Heck. See
Nelson v. Campbell, 541 U.S. 637, 647 (2004) (stressing
the importance of “necessarily” in stating the rule of
Heck). See also McCann v. Neilsen, 466 F.3d 619 (7th Cir.
2006).
  There remains the fact that Gilbert encountered diffi-
culty adhering to an agnostic posture on the question
whether he had hit a guard. Gilbert told the judge that
he anticipated that one of his witnesses would testify
that the chuckhole’s size and location makes it impossible
for a prisoner to punch anyone outside the cell. The
magistrate judge saw as the last straw Gilbert’s refer-
ence to “the alleged punch” when questioning a guard
about his location during the incident. Yet the judge did
not find that Gilbert violated his orders by phrasing his
question this way; no other part of the judge’s discussion
implies that the eventual restriction—disallowing any
evidence of events that occurred after Gilbert reached his
cell—was imposed as a sanction for disobeying orders
regulating the conduct of the trial.
  Instead of insisting that Gilbert confess in open court
to striking a guard, the judge should have implemented
Heck and Edwards through instructions to the jury at the
start of trial, as necessary during the evidence, and at
the close of the evidence. It would have sufficed to tell
the jurors that Gilbert struck the first blow during the
fracas at the chuckhole, that any statements to the
contrary by Gilbert (as his own lawyer) or a witness
must be ignored, and that what the jurors needed to
6                                           No. 05-1728

determine was whether the guards used more force than
was reasonably necessary to protect themselves from an
unruly prisoner.
  This case must be retried, and Gilbert must be allowed
to present evidence about what the guards did to him
after he extended his hands through the chuckhole. The
district court’s first step on remand should be to deter-
mine, using the standards of Pruitt v. Mote, 503 F.3d 647
(7th Cir. 2007) (en banc), whether to request an attorney
to represent Gilbert at the upcoming trial. See 28 U.S.C.
§1915(e)(1).
                               REVERSED AND REMANDED

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                  USCA-02-C-0072—1-9-08
