John H. Sheppard v. Larry G. Hicks

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No. 96-1774
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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Facility, Arkansas Department * [UNPUBLISHED]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. *
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Submitted: December 4, 1996
Filed: December 17, 1996
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Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges.
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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.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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