dissenting:
I respectfully dissent for reasons closely associated with and derivative of those stated in Part I of Judge Reynaldo Garza’s dissenting opinion. I write further to add or make explicit several of those reasons: (1) The Department of Corrections defendants have conceded that, if the “face-to-face threat of legal redress” prohibition is unconstitutional, their reliance in part on that provision in imposing disciplinary punishment on Clarke was harmless error; (2) Therefore, the plaintiffs action for prospective declaratory and injunctive relief based on the alleged uneon-stitutionality of that prohibition, even if successful, will not demonstrate the invalidity of the previous determination of his guilt of prison rule infractions or the loss of good time imposed as punishment therefor; (3) Our determination that the Department of Corrections defendants’ reliance, in part, on the challenged prohibition was harmless error, based both on the Department’s concession and the overwhelming evidence of record, will be res judicata in Clarke’s future attempt to regain his lost good time in habe-as proceedings, even if the prohibition is ultimately adjudged to be unconstitutional in the present action for prospective declaratory and injunctive relief.
Clarke prays for prospective relief declaring that a Department of Corrections disciplinary rule’s prohibition of a prisoner from “threatening [any Department employee] with legal redress during a confrontation situation” violates the free speech clause of the First Amendment and enjoining the Department from enforcing that prohibition. This claim is not cognizable under 18 U.S.C. § 1983 if such a judgment for Clarke would “necessarily imply” the invalidity of his previous loss of 10 days of good-time credit as punishment for prison rule infractions. Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997). But if the success of Clarke’s action will not necessarily imply the invalidity of the punishment imposed, the action should be allowed to proceed, in the absence of some other bar to the suit. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). “For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction.” Id. n. 7, 114 S.Ct. 2364. “Because of doctrines like [ ] especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308[ ](1991), such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful.” Id. In the present case, as Judge Reynaldo G. Garza has cogently demonstrated in his dissent, the Secretary of the Department of Corrections and the other defendants have conceded that, even if the prison regulatory prohibition against a prisoner’s face-to-face threat to sue a guard is unconstitutional, the Department’s partial reliance upon it was harmless error because there was overwhelming and conclusive proof of Clarke’s guilt of the prison rule infraction by other acts by Clarke in the same episode for which Clarke does not claim protection under the First Amendment. For instance, in the same confrontation, Clarke not only threatened to sue; he also demonstrated belligerence or aggressiveness toward the guard; he defiantly “called out” the guard; he threatened the guard while cursing and shaking his finger at the guard; his belligerence suggested the threat of bodily harm to the guard. The majority’s fears that a judgment in the present § 1983 action declaring that the prohibition is violative of the free speech clause of the First Amendment would be res judica-ta in Clarke’s future habeas proceedings to alleviate his punishment are unfounded. Our determination that the Department’s reliance, in part, on the challenged prohibition of allegedly protected speech was harmless and *196ineffectual to his prison disciplinary proceeding and punishment, based on the Department’s concession of this fact and the overwhelming support for that conclusion in the record, will have res judicata effect in Clarke’s future habeas proceeding. If this were not the case, the Supreme Court in Heck would not have stated that because of doctrines like independent source, inevitable discovery, and “especially harmless error” certain § 1983 actions, “even if successful, would not necessarily imply that the plaintiffs conviction was unlawful.” Id. at 487, n. 7, 114 S.Ct. 2364.
Consequently, I agree with and concur in part I of Judge Reynaldo G. Garza’s dissenting opinion. I will reserve judgment, however, on the merits of whether the prohibition against face-to-face threats to sue is constitutional. I acknowledge the persuasive force of my dissenting colleague’s argument on the subject in his panel opinion. The majority did not address the issue, however, and I would prefer to decide upon it after having the benefit of a more robust discussion and debate among the members of the court.