Judges: PerCuriam
Filed: May 07, 2014
Latest Update: Mar. 02, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 8, 2014* Decided May 7, 2014 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 13---3173 Appeal from the United States District Court for the DONALD S. LACY, Southern District of Indiana, Plaintiff---Appellant, Indianapolis Division. v. No. 1:13---c
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted April 8, 2014* Decided May 7, 2014 Before FRANK H. EASTERBROOK, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge No. 13---3173 Appeal from the United States District Court for the DONALD S. LACY, Southern District of Indiana, Plaintiff---Appellant, Indianapolis Division. v. No. 1:13---cv..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 8, 2014*
Decided May 7, 2014
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 13-‐‑3173 Appeal from the United
States District Court for the
DONALD S. LACY, Southern District of Indiana,
Plaintiff-‐‑Appellant,
Indianapolis Division.
v.
No. 1:13-‐‑cv-‐‑811-‐‑RLY-‐‑DML
STATE OF INDIANA, et al., Richard L. Young, Chief Judge.
Defendants-‐‑Appellees.
Order
Donald Lacy was convicted of child molestation and sentenced to eight years in
prison. He continues to maintain his innocence and has refused to participate in Indi-‐‑
ana’s Sex Offender Management and Monitoring Program, which requires participants
to admit their misconduct as part of a plan of therapy. Participants must admit not only
* Defendants were not served with process in the district court and have elected not to participate in
this appeal. After examining appellant’s brief and the record, we have concluded that oral argument is
unnecessary. See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 13-‐‑3173 Page 2
the crimes of which they have been convicted but also all other sexual misconduct, in-‐‑
cluding acts that still could be prosecuted. Apart from the possibility of being prosecut-‐‑
ed for other sex-‐‑related crimes, Lacy, who testified in his own defense at trial, could be
prosecuted for perjury if he now admits that he committed the acts charged, and thus
that he lied under oath when testifying otherwise.
Lacy maintains that the consequences of his refusal to admit culpability include loss
of good-‐‑time credits, a reduction in credit-‐‑earning class, and deferral of parole eligibil-‐‑
ity. He contends that attaching these consequences to a refusal to admit criminal acts
violates the self-‐‑incrimination clause of the Constitution’s fifth amendment, applied to
the states by the due process clause of the fourteenth amendment. Although McKune v.
Lile, 536 U.S. 24 (2002), holds that a state does not violate the Constitution by providing
benefits to inmates who admit their crimes as part of a program similar to Indiana’s, it
adds that “compulsory” participation is forbidden and that postponement of an earned
release date may make participation effectively compulsory.
Lacy filed a civil action under 42 U.S.C. §1983, asking the district court to direct the
warden and other responsible officials to restore his good-‐‑time credits and to treat him
no worse than the state would have done had he participated. The district judge
screened the complaint under 28 U.S.C. §1915A and dismissed, ruling that it fails to
state a claim on which relief may be granted. The judge relied on Entzi v. Redmann, 485
F.3d 998, 1004 (8th Cir. 2007), which he understood to hold that, when a state has discre-‐‑
tion over a prisoner’s release (in Entzi, by extending or revoking probation), exercising
that discretion does not make self-‐‑accusation compulsory for the purpose of McKune
and the fifth amendment. On appeal, Lacy contends that Indiana’s good-‐‑time-‐‑credit sys-‐‑
tem is not discretionary—that he is entitled to credits unless he misbehaves, and that
exercising his privilege not to admit a crime cannot be deemed misconduct.
Far from deciding that states are entitled to revoke good-‐‑time credits of prisoners
who refuse to incriminate themselves, Entzi observed that, unless a state or federal
court first restores the credits in an action under 28 U.S.C. §2254 (or the equivalent state
remedy), the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), forecloses resort to
§1983. That is equally true here to the extent that Lacy wants damages. And to the ex-‐‑
tent that he seeks earlier release, he has chosen the wrong kind of suit. Section 1983 does
not allow a federal court to change a prisoner’s release date. That remedy is available
only by petition under §2254. See Preiser v. Rodriguez, 411 U.S. 475 (1973). We held in
Montgomery v. Anderson, 262 F.3d 641, 644–45 (7th Cir. 2001), that Preiser applies to any
request for the restoration of good-‐‑time credits or placement in a higher credit-‐‑earning
class.
No. 13-‐‑3173 Page 3
Preiser and Montgomery foreclose this §1983 action. A court cannot on its own con-‐‑
vert a §1983 suit to one under §2254; the two kinds of actions have different conditions,
different defendants (or respondents), and different consequences on either success or
an adverse outcome. See, e.g., Moore v. Pemberton, 110 F.3d 22 (7th Cir. 1997); Copus v.
Edgerton, 96 F.3d 1038 (7th Cir. 1996). A district judge might ask a litigant whether he is
willing to accept the risks and consequences of a different procedural form, see Castro v.
United States, 540 U.S. 375, 382–83 (2003); Glaus v. Anderson, 408 F.3d 382, 388–89 (7th
Cir. 2005), but the district judge did not ask Lacy.
The judgment of the district court is vacated, and the case is remanded with instruc-‐‑
tions to ask Lacy whether he is willing to dismiss all defendants other than the warden,
forego his request for damages, and have the suit treated as a petition under §2254. If
Lacy agrees to that approach, the district judge should consider how McKune applies to
the particular consequences that Indiana attaches to a refusal to participate in its Sex Of-‐‑
fender Management and Monitoring Program, a question that is open in this circuit
(and to which Entzi and similar decisions do not speak). It might be prudent for the dis-‐‑
trict judge to appoint counsel under the Criminal Justice Act, 18 U.S.C. §3006A(a)(2)(B),
so that this subject can be fully briefed and any necessary evidence presented. If Lacy
does not agree to proceed under §2254, the suit should be dismissed without prejudice.
