of the punishment imposed and is precluded at this time by Heck v. Humphrey "); see also Higgins v. Coombe, 1997 U.S. Dist. LEXIS 8418, 1997 WL 328623 (S.D.N.Y. 1997)(where inmate claimed that defendants retaliated against him by conducting a biased disciplinary hearing resulting in sixty days keeplock and loss of privileges, court dismissed this substantive due process claim as barred by Edwards) Accordingly, I conclude that Edwards applies to this action irrespective of which punishment (SHU or loss of good time) is at issue.
That said, it is certain that Edwards precludes Burnell's claim that hearing officer Grant failed to conduct the hearing and evaluate the evidence objectively due to his security-related functions. This allegation is precisely the same as that made by the inmate in Edwards, i.e., -- the hearing officer was deceitful and biased. Thus, this claim, if valid, obviously would necessarily imply the invalidity of Burnell's 'conviction.'
I also find that Burnell's remaining claims are barred by Edwards. In my opinion, those claims -- that Grant refused to take testimony from four witnesses; contacted witnesses outside of Burnell's presence; did not provide a written explanation to Burnell for failing to call witnesses; refused to allow Burnell to view a videotape, or review inmate Perez' misbehavior report and introduce it into the record -- are essentially the same as the deceit/bias claim: each, if valid, implies the invalidity of the conviction. Essentially, Burnell claims that the judgment entered against him after the disciplinary hearing was flawed due to several different irregularities in the proceedings. If any of those claims were sustained in the § 1983 lawsuit, such a finding would certainly "imply" that the prior disciplinary 'conviction' was invalid. If Burnell is allowed to proceed now with these claims in a § 1983 action, he could recover money damages based on conduct that supported his 'conviction.' I do not believe that the Edwards majority would countenance such a result. Burnell is attempting to utilize the "wrong," or at least premature, vehicle to remedy the perceived deficiencies in his disciplinary hearing. Heck and Edwards compel the conclusion that Burnell's claims must be dismissed.
Since all the matters raised by Burnell in this civil action relate directly to the hearing and evidence relied on by the hearing officer, it is virtually impossible to parse each claim out separately and make a harmless error determination as to whether that matter formed a basis for the disciplinary determination. If any of the matters alleged here were proven, that certainly would "imply" or suggest that the disciplinary hearing was flawed and the 'conviction' invalid.
I recognize that Justice Ginsburg might find some or all of Burnell's remaining claims "immediately cognizable under § 1983." Edwards, 117 S. Ct. at 1589. However, the Edwards majority did not draw the distinctions suggested by the concurrence and I believe that doing so is inconsistent with the overriding intent of Edwards, Heck and Preiser. I don't believe that the Edwards majority intended to limit its application only to those procedural errors which are so egregious as essentially to constitute 'reversible error' regardless of any other factors. Such a narrow reading would require district courts to make what are essentially 'harmless error' determinations about every claim, based only upon the face of the complaint. This seems inconsistent with the overriding message in the Supreme Court's cases: where an inmate complains that a disciplinary hearing is constitutionally defective and the result unjust, he should challenge the conviction directly, not via a § 1983 action.
Moreover, in this case, all of Burnell's claims are related to the hearing and to the punishment arising therefrom. Apart from the 'conviction' and 'sentence' arising out of the disciplinary hearing, Burnell does not claim that he has suffered any actual, compensable injury. Thus, because there appears to be no injury other than the 'conviction' and 'sentence' received from the disciplinary hearing, no § 1983 cause of action can be sustained regardless of whether Burnell's claims necessarily imply the invalidity of the conviction. See Heck, 114 S. Ct. at 2372-73, fn. 7 (even where a claim would not necessarily imply the invalidity of the conviction the inmate must prove that an unlawful act caused him compensable injury, other than being convicted and imprisoned). Therefore, in accordance with the Supreme Court's directive, I find that Burnell must assert these challenges concerning his disciplinary hearing 'directly' - i.e., via appeal, habeas corpus petition or other collateral attack. He may not assert these claims pursuant to § 1983 because, to date, the disciplinary hearing 'conviction' has not been invalidated. Any other result would be inconsistent with the rationale of Edwards, Heck and Preiser.
Accordingly, I find that Edwards bars all of Burnell's claims and this suit should be dismissed in its entirety.
See Muhammad v. Bush, 121 F.3d 708 (table), 1997 WL 434382, *4 (6th Cir. 1997)(text)(inmate's claim that he was denied opportunity to call a witness not cognizable under § 1983 because, if proven, "would necessarily imply the invalidity of the sanctions..."); Stone-Bey, 120 F.3d 718, 1997 WL 409423 at *4 (inmate's claim that there was insufficient evidence, and also that there was no written explanation -- as "merely a complement to the first" claim -- not cognizable under § 1983 because such claims would imply the invalidity of his conviction); Brodie v. Kuhlman, 1997 U.S. Dist. LEXIS 10575, 1997 WL 411932, *1 (S.D.N.Y. 1997)(inmate's claims of "due process deprivation and bias" not cognizable under § 1983 because they "necessarily imply the invalidity of the punishment imposed"); Kerr v. Orellana, 969 F. Supp. 357, 1997 WL 410894 (E.D.Va. 1997)(inmate's claims that he was denied witnesses, prevented from presenting exculpatory evidence, and that the hearing officer prematurely found him guilty, not cognizable under § 1983 because they would necessarily imply the invalidity of his conviction); Cooper, 1997 WL 361879 at *3 (inmate's claims that he was denied right to cross-examine witnesses, to present evidence, to call witnesses, and that the hearing officer predetermined his guilt using fabricated disciplinary reports, not cognizable under § 1983 because they would imply the invalidity of his punishment).
SUMMARY AND CONCLUSION
For the reasons set forth above, I hereby GRANT defendants' motion for summary judgment ( # 32) in its entirety. The complaint is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT COURT
Dated: Rochester, New York
September 3, 1997.