Levi Foerderer v. T. Mathias

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 24, 2021 *
Decided May 26, 2021
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20‐1226
LEVI FOERDERER,
Plaintiff‐Appellant,
v.
T. MATHIAS, et al.,
Defendants‐Appellees.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 17‐CV‐429‐SMY‐RJD
Staci M. Yandle,
Judge.
O R D E R
Levi Foerderer, a federal inmate who had expressed concerns over his safety to
prison officials, got into a violent altercation with his cellmate. A disciplinary hearing
officer concluded that Foerderer started the fight and sanctioned him with the loss of
good‐time credit. Foerderer sued various officials under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for failing to protect him. The
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. A PP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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district court entered summary judgment for all defendants on the ground that
Foerderer’s claims were barred under Heck v. Humphrey, 512 U.S. 477 (1994). We affirm.
Construing the record in his favor, see Bridges v. Dart, 950 F.3d 476, 478 (7th Cir.
2020), we describe the circumstances that led Foerderer to believe that his constitutional
rights were violated. Throughout his first year at the Federal Correctional Institution in
Greenville, Illinois, Foerderer periodically told prison officials that he feared for his
safety based on his prior cooperation with law enforcement. He even showed them a
copy of his criminal judgment, which alluded to past attacks on him and recommended
that attention be paid to his safety.
After the one‐year point in his incarceration, he was housed with cellmate
Michael Perkins. The two remained civil until a contraband needle was discovered in
their cell. The needle belonged to Foerderer, but Perkins was found guilty of possessing
it. Tensions then rose between the men, prompting Foerderer to ask defendants for
another cellmate. Later Perkins came across a printout of a news article referring to
Foerderer’s cooperation as a government witness. Perkins confronted Foerderer with
the article and told him to move out of their cell if he “didn’t want to get smashed.” The
next morning the two had a physical altercation in which punches were thrown.
Foerderer was issued an incident report for committing assault with serious injury.
At a hearing on the matter, Foerderer and Perkins offered different versions of
events. Foerderer insisted that he acted in self‐defense. In his telling, he accidentally
angered Perkins when he awakened him early one morning upon returning from a
work shift. Perkins then climbed down from his top bunk, tripped and hit his head on a
table, and proceeded to attack Foerderer. When Perkins grabbed his legs, Foerderer said
he protected himself by punching Perkins until he could push Perkins out of the cell.
Perkins, for his part, said that Foerderer assaulted him in his sleep by striking him in
the head. When Perkins tried to get out of bed, he banged his head on something and
was knocked unconscious. He awoke lying on the floor, and Foerderer continued to
punch him until he fled from the cell in his underwear.
The disciplinary hearing officer credited Perkins’s version of events that
Foerderer was the aggressor and had not acted in self‐defense. The hearing officer relied
on the following evidence: video footage showing a disoriented Perkins stumble out of
the cell in his underwear, medical records reflecting Perkins’s need for emergency
treatment for wounds to his head and face (contrasted with the minor injury Foerderer
suffered to the hand he used to strike Perkins), and the results of an internal

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investigation that fingered Foerderer as the assailant. The hearing officer also noted that
Foerderer did not report to anyone that Perkins had information about his status as a
cooperating witness and instead “[took] measures into his own hands.” Based on the
evidence, the hearing officer concluded that Foerderer committed “Assault with Serious
Injury,” and sanctioned him with the loss of good‐conduct time.
Foerderer then brought this Bivens action against several prison officials for
failing to protect him from Perkins in violation of the Eighth Amendment. These
defendants, he asserted, knew that he had acted as a government witness and had been
attacked for it; failed to prevent Perkins—a known violent inmate—from being placed
in his cell; and, despite his objections, failed to prevent him from being attacked by
Perkins. Perkins’s attack, he continued, left him no choice but to defend himself.
The officers moved for summary judgment based on Heck, which bars a plaintiff
in an action under 42 U.S.C. § 1983 from pursuing a claim for relief that necessarily
implies the invalidity of a criminal conviction, unless that conviction has been set aside
or invalidated. 512 U.S. at 486–87; see Edwards v. Balisok, 520 U.S. 641, 645–46 (1997)
(extending Heck to prison disciplinary decisions); Clemente v. Allen, 120 F.3d 703, 705
(7th Cir. 1997) (applying Heck to Bivens actions). Foerderer countered that his action was
not barred by Heck (or Edwards) because the hearing officer’s finding that he started the
fight was not necessary to impose sanctions; the hearing officer, he maintained, could
have sanctioned him for assault based merely on his admission that he hit Perkins in
self‐defense.
Over Foerderer’s objections, the district judge adopted the magistrate judge’s
recommendation that Foerderer’s action was Heck‐barred and granted summary
judgment for the defendants. As the district court explained, Foerderer’s failure‐to‐
protect claim—which presumed that Perkins instigated the attack—directly
contradicted the hearing officer’s finding that Foerderer attacked Perkins.
On appeal, Foerderer challenges the district court’s application of Heck and
maintains that his admission to hitting Perkins could have enabled the disciplinary
hearing officer to sanction him for assault even without finding that he had instigated
the fight. But this argument misapprehends the standard set forth in Heck. The relevant
inquiry is not whether he could be found guilty of assault even were he not the
aggressor, but whether the factual basis of his claim is inconsistent with the
determination in his prison‐discipline case. See Heck, 512 U.S. at 486–87; see also Moore v.
Mahone, 652 F.3d 722, 724–25 (7th Cir. 2011) (suit barred by Heck where allegations were

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“in tension with the disciplinary board’s findings”). Here, the factual basis of
Foerderer’s failure‐to‐protect claim—that he merely defended himself against Perkins’s
attack—conflicts with the disciplinary decision against him. The hearing officer’s
finding that Foerderer attacked Perkins while he slept formed the basis of the decision
to sanction Foerderer with the loss of good‐conduct time. Indeed, the decision
emphasized that Foerderer was “the perpetrator in this case, not the victim” and that
there was no evidence that he acted in self‐defense. That essential finding cannot be
squared with the premise underlying Foerderer’s claim that he was the one in need of
protection. See Moore, 652 F.3d at 724–25.
AFFIRMED

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