Kente Barker v. Christina Reagle

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 5, 2023*
Decided April 13, 2023
Before
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 22-2572
KENTE BARKER,
Plaintiff-Appellant,
v.
CHRISTINA REAGLE, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Southern District of
Indiana, Terre Haute Division.
No. 2:21-cv-00413-JPH-DLP
James Patrick Hanlon,
Judge.
O R D E R
Kente Barker, who was reimprisoned after his parole was revoked, sued under
42 U.S.C. § 1983 to contest the constitutionality of his reimprisonment, and the district
court dismissed the suit with prejudice. Although Barker says he does not seek release,
he wants a declaration that would necessarily imply that his incarceration is unlawful.
* 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. See 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NONPRECEDENTIAL DISPOSITION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

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No. 22-2572 Page 2
Because Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), bars his claim while he remains
in prison, we affirm but modify the dismissal to be without prejudice.
At this stage, we accept as true the factual allegations in Barker’s complaint.
See Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015). Barker was released from Indiana
prison under a parole agreement. Two months later, parole officers—suspecting that
Barker was trafficking drugs—arrested him at his home where they discovered and
seized drug paraphernalia. Indiana began proceedings to revoke Barker’s parole based
on its allegations that he had violated his parole agreement by possessing drugs.
Barker pleaded not guilty, denying that he had possessed drugs. He alleges that at his
contested revocation hearings, the parole board did not allow him to present evidence,
denied his requests for appointed counsel, and refused to show him the arrest warrant
and supporting investigative reports. The board revoked Barker’s parole.
Barker filed this suit under § 1983 against the parole board and other state
officeholders in their official capacities. (We have substituted Christina Reagle, one of
the current officeholders, as a party. See F ED. R. A PP . P. 43(c)(2).) Relying on Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973), Barker contends that the defendants “unlawfully
reincarcerate[d]” him by refusing to appoint counsel for him. And he argues that the
revocation was unconstitutional because the defendants—disregarding Morrissey v.
Brewer, 408 U.S. 471, 489 (1972)—barred him from presenting evidence, refused to
disclose the evidence against him, and provided an inadequate written decision. He
wants a declaration that the “policies, practices, and customs, and conduct” that led to
his reimprisonment are unconstitutional. He also requests the prospective relief of an
injunction barring the defendants from using those same procedures against him in the
future. Finally, he tells us that he “does not request a speedier release” in this suit and
that he continues to contest the parole revocation in the state courts.
After reviewing the complaint, see 28 U.S.C. § 1915A, the district court dismissed
it with prejudice. The court first reasoned that the defendants had acted in a quasi-
judicial capacity during the revocation proceedings and were thus entitled to absolute
immunity. Second, the court concluded that the suit effectively challenges Barker’s
confinement, and as such the suit must be brought as a petition for a writ of habeas
corpus. See 28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
We begin our analysis with some threshold observations. First, Barker tries to
circumvent Preiser by arguing that he does not seek release from custody. The
defendants respond that Barker lacks standing to seek prospective relief and that Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994), blocks the entire suit. We bypass the standing

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No. 22-2572 Page 3
issue and focus on Heck because we may choose freely among reasons not to reach a
case’s merits, and as we are about to discuss, Heck resolves this case. See Sinochem Int'l
Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007). Next, the district court need
not have ruled that the defendants are absolutely immune because Barker sued them
only in their official capacities; thus absolute immunity does not apply. See Kentucky v.
Graham, 473 U.S. 159, 166–67 (1985). Finally, Barker filed an amended complaint, but the
district court reviewed the original one only. We assess both under Heck.
Barker contends that he may sue under § 1983 because, as just mentioned, he
does not seek release. But under Heck and its progeny, Barker may not sue under § 1983
if his imprisonment is intact and success in the suit would necessarily imply that his
incarceration is invalid. 512 U.S. at 486–87; Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005).
That is Barker’s case. His parole revocation and reimprisonment are intact (though he is
litigating them in the state courts). And judgment in his favor on his claim that he was
unlawfully reimprisoned would necessarily imply that his confinement is invalid.
Barker replies unpersuasively that under Wilkinson and Skinner v. Switzer,
562 U.S. 521 (2011), he may use § 1983 because he seeks prospective relief. Wilkinson
allows prisoners to use § 1983 to seek purely prospective relief in challenging parole-
release procedures if victory would mean only a new parole-eligibility review or parole-
release hearing, not necessarily a finding that current incarceration is wrongful. 544 U.S.
at 82. Similarly, Skinner held that a prisoner could seek DNA testing under § 1983
because the results—which might be incriminating, exculpatory, or inconclusive—
would not necessarily undermine the lawfulness of his imprisonment. 562 U.S.
at 534. By contrast, Barker seeks not just the prospective relief of an injunction against
future wrongful reimprisonments but also a declaration that his revocation was
unconstitutional (based on the procedures that he wants enjoined). Because that
declaration would necessarily imply that his current imprisonment is unlawful, his
additional request for the related prospective relief does not cure the Heck problem.
See Morgan v. Schott, 914 F.3d 1115, 1121-22 (7th Cir. 2019).
We end with an observation about the nature of the dismissal of this case. The
district court’s dismissal on the ground that Barker must seek relief under § 2254 should
have been “without—rather than with—prejudice.” Williams v. Wisconsin, 336 F.3d 576,
580 (7th Cir. 2003). Likewise, a dismissal under Heck should be without prejudice.
See Johnson v. Rogers, 944 F.3d 966, 968 (7th Cir. 2019). We therefore MODIFY the
dismissal to be without prejudice and, as so modified, AFFIRM.

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