                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 19 2005
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


JULIUS LESLIE STEWART,

          Plaintiff-Appellant,

v.
                                                        No. 04-2174
TIM LEMASTER, Warden, New
                                                 (District of New Mexico)
Mexico State Penitentiary; CHET
                                            (D.C. No. CIV-04-507-MCA/WDS)
EDWARDS, Unit Manager,
Penitentiary of New Mexico; CARLOS
VALDEZ, Unit Manager, Penitentiary
of New Mexico,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.


      After examining appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Appellant Julius Stewart, a state prisoner proceeding pro se, filed a

complaint pursuant to 42 U.S.C. § 1983 asserting that Defendants violated his

constitutional right to due process when they implemented disciplinary sanctions

resulting in the termination of his ability to earn good time credits. Stewart

sought both the restoration of good time credits and monetary damages. The

district court dismissed Stewart’s complaint without prejudice, concluding that an

action seeking the restoration of good time credits must be brought under the

habeas corpus statutes with exhaustion of state remedies required. See United

States v. Furman, 112 F.3d 435, 438 (10th Cir. 1997). The court further

concluded that Stewart’s claims for damages were barred by Heck v. Humphrey,

512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 648 (1997).

      Stewart then filed the instant appeal together with a request to proceed in

forma pauperis. In his appellate brief, Stewart does not address the grounds upon

which the district court dismissed his complaint but, instead, presents arguments

challenging his underlying conviction and sentence. Having reviewed the record,

Stewart’s appellate brief, and the applicable law, we conclude that the dismissal

of Stewart’s § 1983 complaint was proper. Accordingly, the district court’s order

dismissing Stewart’s complaint without prejudice is   affirmed for substantially


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the reasons stated by the district court in its Memorandum Opinion and Order

dated June 30, 2004. Stewart’s       motion to proceed in forma pauperis is granted.

Stewart is reminded that he remains obligated to continue making partial

payments until his appellate filing fee is paid in full.   See 28 U.S.C. § 1915(b).

                                            ENTERED FOR THE COURT



                                            Michael R. Murphy
                                            Circuit Judge




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