Document Info

DocketNumber: 96-1774

Filed Date: 12/17/1996

Status: Non-Precedential

Modified Date: 4/17/2021

  •                            ___________
    No. 96-1774
    ___________
    John Henry Sheppard,              *
    *
    Appellant,              *
    *
    v.                           *   Appeal from the United States
    *   District Court for the
    Larry G. Hicks, Lt., CO-III       *   Eastern District of Arkansas
    Officer, Jefferson Correction     *
    Facility, Arkansas Department     *       [UNPUBLISHED]
    of Correction,                    *
    *
    Appellee.               *
    ___________
    Submitted:    December 4, 1996
    Filed: December 17, 1996
    ___________
    Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
    ___________
    PER CURIAM.
    John Henry Sheppard appeals from the final judgment of the
    District Court1 for the Eastern District of Arkansas dismissing
    with prejudice his 42 U.S.C. § 1983 action.     For the reasons
    discussed below, we modify the dismissal to be without prejudice
    and affirm the judgment as modified.
    Sheppard filed a complaint alleging that while he was an
    inmate at the Jefferson County Correctional Facility (JCCF),
    1
    The Honorable Stephen M. Reasoner, Chief Judge, United States
    District Court for the Eastern District of Arkansas, adopting the
    report and recommendations of the Honorable Henry L. Jones, Jr.,
    United States Magistrate Judge for the Eastern District of
    Arkansas.
    Lieutenant Larry Hicks issued him three conduct violations, and
    sprayed mace in his face three times for no reason.        Sheppard
    sought damages, restoration of 365 days of good time credit and his
    class status. The magistrate judge ordered the case continued for
    120 days to allow Sheppard to exhaust his administrative remedies
    under 42 U.S.C. § 1997e(a)(1), and required Sheppard to notify the
    court of his efforts, or risk dismissal.
    After the 120 days had expired, Hicks moved to dismiss the
    complaint, arguing that Sheppard had not fully exhausted his
    administrative remedies. Sheppard opposed the dismissal, stating
    that he filed a grievance with the JCCF warden, the warden and the
    assistant director in Pine Bluff, but to no avail; and that he had
    no further remedies. The district court, adopting the magistrate
    judge's report, dismissed the action with prejudice.      Sheppard
    appeals.
    Exhaustion of administrative remedies is generally not
    required under section 1983. Wilwording v. Swenson, 
    404 U.S. 249
    ,
    251 (1971) (per curiam). Without deciding whether Sheppard has
    made a reasonable and good faith attempt to exhaust under 42 U.S.C.
    § 1997e, see Arvie v. Stalder, 
    53 F.3d 702
    , 705-06 (5th Cir. 1995),
    or whether further exhaustion may have been futile, we conclude
    that dismissal is nonetheless proper under Heck v. Humphrey, 
    114 S. Ct. 2364
    , 2372 (1994) (Heck). Because Sheppard has requested
    restoration of good time credits, Heck applies. See Sheldon v.
    Hundley, 
    83 F.3d 231
    , 233 (8th Cir. 1996) (if success on merits of
    § 1983 claim would imply invalidity of disciplinary result
    lengthening plaintiff's time spent in prison, Heck requires
    favorable termination of action in authorized state tribunal or
    federal habeas court). Consequently, dismissal should be without
    prejudice. See 
    id. at 234.
    Accordingly, we modify the judgment to be without prejudice
    and affirm the judgment of the district court as mofidied.
    -2-
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-