[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15280 MAY 2, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00349-CV-OC-10-GRJ
ALBERT SHAW NELSON,
Plaintiff-Appellant,
versus
C. JIMENEZ,
Discipline Hearing Officer,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 2, 2006)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Federal prisoner Albert Shaw Nelson, pro se, appeals the dismissal, on
frivolity review, of his complaint filed pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 395-397, 91 S.Ct. 1999,
2004-05, 29 L.Ed.2d 619 (1971), for failure to state a claim. Nelson sued Jimenez,
a federal disciplinary hearing officer, alleging that Jimenez violated his Fifth
Amendment due process rights during a disciplinary proceeding that upheld
charges against Nelson for possession of marijuana and abuse of the mail system.
He argues that his case is cognizable pursuant to United States Supreme Court law
because his claim did not challenge the fact of his conviction or duration of his
sentence, it fell outside the core of habeas corpus, and success would not
necessarily spell immediate or speedier release.
We review a district court’s sua sponte dismissal of a claim as frivolous
under 28 U.S.C. § 1915 for abuse of discretion. Bilal v. Driver, 251 F.3d 1346,
1349 (11th Cir. 2001). Pursuant to 28 U.S.C § 1915, a district court may dismiss a
case filed in forma pauperis at any time if it is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief against a
defendant who is immune from such relief. 28 U.S.C § 1915(e)(2)(B)(i-iii). “A
claim is frivolous if it is without arguable merit either in law or fact.” Bilal, 251
F.3d at 1349.
In Bivens, the Supreme Court held that injured plaintiffs can bring a cause of
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action for damages against federal officers based on violations of the plaintiffs’
constitutional rights. Bivens, 403 U.S. at 395-397, 91 S.Ct. at 2004-05. Bivens
involved alleged violations of the Fourth Amendment, but the Supreme Court has
also allowed Bivens actions for violations of the Due Process Clause of the Fifth
Amendment. Davis v. Passman, 442 U.S. 228, 233-249, 99 S.Ct. 2264, 2271-
2279, 60 L.Ed.2d 846 (1979).
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383
(1994), the Supreme Court held that “to recover damages for an allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. §
1983 plaintiff must prove that the conviction or sentence has been reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” 512 U.S. at 486-87, 114 S.Ct. at 2372. If
this type of action is brought prior to the invalidation of the challenged conviction
or sentence, it must be dismissed as premature. Id. at 487, 114 S.Ct. at 2372.
Thus, “the district court must consider whether a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can demonstrate that the
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conviction or sentence has already been invalidated.” Id.
We have held that although Heck dealt with a state prisoner’s § 1983 action,
the Heck rule applies with equal force in a Bivens action filed by a federal
prisoner. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995). The Supreme
Court has applied the Heck analysis to claims made by prisoners challenging
prison disciplinary actions, see Edwards v. Balisok, 520 U.S. 641, 643-649, 117
S.Ct. 1584, 1586-89, 137 L.Ed.2d 906 (1997); however, Heck is not categorically
applicable to all suits challenging prison disciplinary actions. Muhammad v.
Close, 540 U.S. 749, 754, 124 S.Ct. 1303, 1306 (2004).
In Muhammad, a prisoner filed a § 1983 action against a prison official,
alleging that the official had charged him with threatening behavior and subjected
him to mandatory prehearing lockup in retaliation for prior lawsuits and grievance
proceedings the prisoner had filed against the prison official. Id. at 753-54, 124
S.Ct. 1305. The Sixth Circuit upheld the dismissal of the suit, finding the action
barred by Heck. Id. at 753, 124 S.Ct. 1306. The Supreme Court reversed, holding
that because the suit did not necessarily affect the computation of “good time”
credits, and the magistrate expressly found no good-time credits were affected by
the actions challenged in the law suit, “[h]is § 1983 suit challenging this action
could not therefore be construed as seeking a judgment at odds with his conviction
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or with the State’s calculation of time to be served in accordance with the
underlying sentence.” Id. at 754-55, 124 S.Ct. 1306. Therefore, the Supreme
Court found that no claim upon which habeas relief could have been granted was
raised, “with the consequence that Heck’s favorable termination requirement was
inapplicable.” Id. at 755, 124 S.Ct. 1306.
Because Nelson’s complaint did not seek to challenge the validity of his
underlying conviction, and did not seek to affect the time he would serve related to
that conviction, the district court abused its discretion in dismissing the complaint
due to Nelson’s failure to show that the disciplinary proceedings had been rendered
invalid.
VACATED AND REMANDED
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