Lionel Gibson v. KATHLEEN SULLIVAN and JUDITH MASSA

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 13, 2023*
Decided April 14, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE P. WOOD, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-2273
LIONEL GIBSON,
Plaintiff-Appellant,
v.
KATHLEEN SULLIVAN and JUDITH
MASSA,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Indiana, Hammond Division.
No. 2:22-CV-154-PPS-APR
Philip P. Simon,
Judge.
O R D E R
Lionel Gibson, an Indiana prisoner, sued state officials under 42 U.S.C. § 1983,
contending that they unlawfully refused to shorten his state criminal sentence. The
* The defendants were not served with process and are not participating in this
appeal. After examining the record, we have agreed to decide this case without oral
argument because the appeal is frivolous. See FED. R. APP. P. 34(a)(2)(A).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 22-2273 Page 2
district court dismissed the suit. Because federal collateral relief on a claim that a
prisoner is unlawfully in state custody is not available under § 1983, we affirm.
In 1999, Gibson began serving a 90-year sentence in Indiana for murder and
attempted murder. See IND. C ODE § 35-42-1-1 (1998). Over 20 years later, he asked a state
judge to reduce his sentence because, he said, he faced attacks for aiding prison officers
and his original sentence was erroneous. His request was construed as a motion to
modify his sentence. See IND. C ODE § 35-38-1-17. Because Gibson is a “violent criminal”
and his request came more than a year after sentencing, it required the prosecutor’s
consent. Id. § 35-38-1-17(d), (k). The prosecutor did not consent, and the judge denied
the motion. Gibson then moved under a different provision, id. § 35-38-1-15, to correct
an “erroneous” sentence, and this motion was also denied.
Gibson responded with this suit under § 1983. He sued the prosecutor, and a
judge involved in denying his motions, for damages and an order that they allow him
to relitigate his sentence. The district court reviewed the complaint under 28 U.S.C.
§ 1915A and dismissed it because, among other problems, both defendants are immune
from a claim for damages. The court also denied Gibson’s motion to reconsider.
On appeal, Gibson contends unpersuasively that the district court should have
ordered the defendants to allow him to contest the legality of his state sentence. First,
the district court correctly ruled that the defendants are immune from any claim for
damages. See Stump v. Sparkman, 435 U.S. 349, 355–57 (1978) (judges); Imbler v. Pachtman,
424 U.S. 409, 430–31 (1976) (prosecutors). The acts that Gibson attributes to the judge
(ruling against him) and prosecutor (not consenting to his motion) fell within their roles
as judge and prosecutor. To the extent he seeks damages from either defendant, such
relief is also barred by Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), because his criminal
conviction remains intact.
Second, the injunctive relief that Gibson seeks—an order allowing him to
relitigate in a state court a challenge to state custody—is not available in this suit. The
proper way to seek federal collateral review of state-court rulings enforcing state
custody is to petition for a writ of habeas corpus, see 28 U.S.C. § 2254, not to sue under
42 U.S.C. § 1983. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A court may recharacterize
a § 1983 claim as a habeas-corpus petition, but it should do so only if the complaint
names the correct defendant and does not face other procedural obstacles.
See, e.g., Glaus v. Anderson, 408 F.3d 382, 388–90 (7th Cir. 2005). Here the proper
defendant is the warden of his prison, id., but Gibson has not named the warden.
Further, Gibson has already tried unsuccessfully to challenge his conviction and

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No. 22-2273 Page 3
sentence collaterally. See Gibson v. Superintendent, No. 2:17-CV-144 RL (N.D. Ind. Aug. 3,
2017) (denied as untimely). He therefore would need permission from us to bring a
successive petition under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(b)(3). But he has not
raised any grounds here upon which we would grant permission. Id. § 2244(b); Gonzalez
v. Crosby, 545 U.S. 524, 530 (2005).
We end with the matter of strikes. Under 28 U.S.C. § 1915(g), prisoners incur
“strikes” for actions and appeals dismissed in their entirety as frivolous, malicious, or
for failure to state a claim upon which relief may be granted. Turley v. Gaetz, 625 F.3d
1005, 1012 (7th Cir. 2010). Gibson has thus incurred a “strike” in the district court, and
another “strike” for filing this frivolous appeal.
AFFIRMED

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