Brian Hatcher v. Christopher Saldana

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 2, 2022*
Decided December 14, 2022
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-3104
BRIAN HATCHER,
Plaintiff-Appellant,
v.
CHRISTOPHER SALDANA, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 20-CV-1806
J.P. Stadtmueller,
Judge.
O R D E R
Brian Hatcher, a Wisconsin prisoner, appeals the district court’s dismissal of his
civil rights complaint asserting that three probation agents unconstitutionally
prolonged his custody by revoking his extended supervision. Because Hatcher’s claim is
* The appellees were not served with process and are not participating in this
appeal. We have agreed to decide the case without oral argument because the
appellant’s brief and the record adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

-- 1 of 3 --

No. 21-3104 Page 2
barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), we affirm the judgment but
modify the dismissal to be without prejudice.
In 2005, Hatcher was convicted in Wisconsin state court of two counts of armed
robbery, see WIS . S TAT. § 943.32(2), and sentenced to a ten-year bifurcated sentence (five
years’ imprisonment followed by five years’ extended supervision). While Hatcher was
on extended supervision after his period of incarceration was complete, his probation
agents initiated revocation proceedings against him three times: in 2011 by Holly Ferry,
2015 by Kelly Bartazack, and 2019 by Christopher Saldana. After each revocation,
Hatcher was returned to prison and under Wisconsin’s sentencing laws he did not
receive credit for the preceding period of supervision. Because of these repeated
revocations, Hatcher did not complete his 10-year sentence until August 2022, 17 years
after he was convicted. Hatcher is now in prison for a separate conviction.
Hatcher brought this suit for damages, contending that the prolonged custody
for his armed robbery conviction violated his due process rights under the Fifth
Amendment, his right under the Eighth Amendment to be free of cruel and usual
punishment, and his right to liberty under the Fourteenth Amendment.
At screening, see 28 U.S.C. § 1915(e)(2), the district court dismissed Hatcher’s
complaint for failure to state a claim. The court explained that Hatcher’s claim against
Ferry was barred by Wisconsin’s then-six-year statute of limitations. See W IS . S TAT.
§ 893.53 (2011), amended by 2017 Wis. Act 235 (eff. Apr. 5, 2018) (reducing applicable
statute of limitations from six to three years). As for his due process claim against
Bartazack and Saldana, the court concluded that Hatcher did not allege that he was
deprived of a revocation hearing and, regardless, Bartazack and Saldana were entitled
to absolute immunity because the decision to initiate revocation proceedings is
analogous to a judicial act.
On appeal, Hatcher generally challenges the dismissal of his complaint for failure
to state a claim. We agree that dismissal was warranted, though for a reason different
than those given by the district court. In Heck v. Humphrey, 512 U.S. 477, 486–87 (1994),
the Supreme Court held that a state prisoner’s claim for damages is not cognizable
under 42 U.S.C. § 1983 if it calls into question the lawfulness of his confinement, unless
he can demonstrate that the underlying confinement has been invalidated through a
direct appeal, postconviction relief, or some other means. We have applied the rule in
Heck to a Wisconsin probationer’s claim that state officials unlawfully prolonged his
custody by revoking his release and extended supervision credit after his extended
supervision terminated. Huber v. Anderson, 909 F.3d 201, 208 (7th Cir. 2018). Here,

-- 2 of 3 --

No. 21-3104 Page 3
Hatcher explicitly predicates his request for damages on the premise that his prolonged
custody was unlawful, but no state or federal court has invalidated his confinement.
Therefore, a § 1983 action is not the proper vehicle to challenge the lawfulness of his
confinement. Id. at 207.
Hatcher’s Heck-barred claims must be dismissed, though the possibility of future
proceedings over the lawfulness of his confinement means that the dismissal should be
without prejudice. See Morgan v. Schott, 914 F.3d 1115, 1122 (7th Cir. 2019).
We MODIFY the district court’s judgment to dismiss Hatcher’s claims without
prejudice. As so modified, the judgment is AFFIRMED.

-- 3 of 3 --