Shondell Killebrew v. HEATHER RIEHLE VOGEL and MARQUELEANA MCMURTRY

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 18, 2024*
Decided December 18, 2024
Before
ILANA DIAMOND ROVNER, Circuit Judge
DORIS L. PRYOR, Circuit Judge
NANCY L. MALDONADO, Circuit Judge
No. 24-2458
SHONDELL KILLEBREW,
Plaintiff-Appellant,
v.
HEATHER RIEHLE VOGEL and
MARQUELEANA MCMURTRY,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 24-CV-514-JPS
J.P. Stadtmueller,
Judge.
O R D E R
Shondell Killebrew appeals the dismissal at screening of his lawsuit against two
parole officers for initiating revocation proceedings without probable cause.
See 42 U.S.C. § 1983. Because his claim is barred under Heck v. Humphrey, 512 U.S. 477,
487 (1994), we affirm.
* We have agreed to decide the case without oral argument because the brief and 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NONPRECEDENTIAL DISPOSITION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 FED. R. A PP. P. 32.1

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No. 24-2458 Page 2
This is not the first time that Killebrew has sought to litigate this claim. In mid-
2023, he filed a nearly identical complaint against his parole officer, Marqueleana
McMurtry,1 and her supervisor, Heather Vogel. See Killebrew v. Vogel, No. 23-cv-677pp,
2023 WL 8603111 (E.D. Wis. Dec. 12, 2023). In that suit, Killebrew alleged that
McMurtry violated a policy of Wisconsin’s Department of Community Corrections by
commencing revocation proceedings against him without conducting a thorough
investigation. Killebrew, who alleged that he was improperly written up for an
altercation with his ex-girlfriend, maintained that (1) the defendants failed to obtain
evidence that was favorable to him (e.g., by failing to take statements from his
witnesses); (2) McMurtry omitted facts from her violation summary that she knew
would negate probable cause to revoke his supervision; and (3) McMurtry and Vogel
proceeded to initiate revocation proceedings without probable cause. Chief Judge
Pepper dismissed the complaint at screening, see 28 U.S.C. § 1915A(a), (b),
determining—as relevant to this appeal—that Killebrew’s claims for damages were
barred under Heck, which prohibits a cause of action under § 1983 that would invalidate
a plaintiff’s conviction or sentence, see 512 U.S. at 489. To the extent he sought to
challenge the validity or legality of the revocation, the judge advised him to pursue an
appeal through the state court system or petition for a writ of habeas corpus under
28 U.S.C. § 2254. In March 2024, she denied Killebrew’s request to reopen and
reconsider the case.
The following month, Killebrew filed this suit, reasserting essentially the same
claims against the same defendants. The case was assigned to Judge Stadtmueller,
who—apparently unaware of Killebrew’s prior case—dismissed it at screening with
prejudice for failure to state a claim. Judge Stadtmueller construed Killebrew’s claims as
challenging not the parole agents’ collection of evidence, but only their decision to
initiate revocation proceedings, and found that these defendants were absolutely
immune from suit. Killebrew appealed.
At the outset, we note that although Killebrew’s filing here resembles his prior
suit, it is not claim-precluded. Claim preclusion applies only when the claim in the
previous suit was “decided on the merits,” United States ex rel. Conner v. Mahajan,
877 F.3d 264, 271 (7th Cir. 2017), and a claim dismissed under Heck—as was Killebrew’s
prior suit—is not a merits determination, Johnson v. Rogers, 944 F.3d 966, 968 (7th Cir.
2019). (A claim barred under Heck does not accrue until the conviction or sentence is
1 In Killebrew’s prior suit, the district judge mistakenly referred to McMurtry as “Moriartry.”

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No. 24-2458 Page 3
invalidated on appeal, through a collateral attack, or by executive pardon or clemency.
See Heck, 512 U.S. at 486–87; Courtney v. Butler, 66 F.4th 1043, 1049–50 (7th Cir. 2023).)
Killebrew argues that Judge Stadtmueller construed his complaint too narrowly
and overlooked his allegation that McMurtry failed to thoroughly investigate his
purported violation of supervision. But this argument is beside the point because his
suit remains barred under Heck.2 Heck’s favorable-termination requirement has been
extended to apply to claims like Killebrew’s that supervised release was improperly
revoked. See Courtney, 66 F.4th at 1049–50 (collecting cases).
We close with an observation about the nature of the dismissal of this case. The
district court’s dismissal under Heck should have been without, rather than with,
prejudice. See Johnson, 944 F.3d at 968. We therefore MODIFY the dismissal to be
without prejudice and, as so modified, AFFIRM.
2 To the extent Killebrew maintains that the defendants failed to conduct a thorough investigation before
initiating revocation proceedings, absolute immunity—Judge Stadtmueller’s basis for dismissal—does
not bar this suit. “Absolute immunity does not … extend to day-to-day duties” of “investigating and
gathering evidence for revocation.” Tobey v. Chibucos, 890 F.3d 634, 650 (7th Cir. 2018).

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