                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-2756
                        ___________________________

                           Tony Quinton Newmy, Sr.,

                      lllllllllllllllllllll Plaintiff - Appellant,

                                          v.

 Trey Johnson, Parole Officer, Mississippi County; Fred Wright, Parole Officer,
   Mississippi County; L. House, Area S.O. Coordinator, Mississippi County,

                     lllllllllllllllllllll Defendants - Appellees.
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Jonesboro
                                  ____________

                             Submitted: June 12, 2014
                               Filed: July 14, 2014
                                 ____________

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
                         ____________

COLLOTON, Circuit Judge.

     Tony Quinton Newmy appeals a judgment of the district court1 dismissing his
complaint brought under 42 U.S.C. § 1983 for failure to state a claim. We affirm.

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
       Newmy sued Trey Johnson, a parole officer in Mississippi County, Arkansas,
under § 1983. According to the complaint, Johnson falsely reported that Newmy
failed to report to see him as required by the terms of Newmy’s parole during five
months in 2012. Newmy claimed that as a result of Johnson’s allegation, his parole
was revoked, and he was required to serve an additional three to five months of
detention. He asserted that Johnson’s actions violated his constitutional rights under
the Due Process Clause and sought damages.

       The district court addressed whether Newmy’s § 1983 claim was cognizable
in light of the Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477 (1994),
and this court’s application of Heck in Entzi v. Redmann, 485 F.3d 998 (8th Cir.
2007). In Heck, the Supreme Court considered a claim brought by a prison inmate
against a state police investigator and state prosecutors under § 1983, alleging
misconduct in the investigation and prosecution of the inmate’s criminal case. The
Court held that

      in order to recover damages for allegedly unconstitutional conviction or
      imprisonment, or for other harm caused by actions whose unlawfulness
      would render a conviction or sentence invalid, a § 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, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486-87 (footnote omitted).

       A separate opinion of Justice Souter urged that the favorable-termination rule
announced in Heck should not extend to individuals who are not “in custody” for
habeas purposes, because “the result would be to deny any federal forum for claiming
a deprivation of federal rights to those who cannot first obtain a favorable state
ruling.” Id. at 500 (Souter, J., concurring in the judgment). The Court responded

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directly and disagreed: “We think the principle barring collateral attacks—a
longstanding and deeply rooted feature of both the common law and our own
jurisprudence—is not rendered inapplicable by the fortuity that a convicted criminal
is no longer incarcerated.” Id. at 490 n.10 (majority opinion). In Edwards v. Balisok,
520 U.S. 641 (1997), the Court unanimously extended Heck to bar a § 1983 claim
brought by a state prisoner challenging the validity of the procedures used to deprive
him of good-time credits while incarcerated.

       In Spencer v. Kemna, 523 U.S. 1 (1998), the Court then addressed a habeas
corpus petition brought by a former inmate who sought to invalidate an order
revoking his parole. Because the plaintiff had completed the entire term of
imprisonment underlying the parole revocation, the Court ruled that the plaintiff’s
petition was moot. In a concurring opinion, Justice Souter wrote that although the
habeas petition was moot, the plaintiff was free to bring an action under § 1983. He
renewed his disagreement with footnote 10 in Heck, where the Court had explained
that the principle barring collateral attacks is not rendered inapplicable by the fact that
the plaintiff is no longer incarcerated. Id. at 19-21 (Souter, J., concurring). Justice
Ginsburg, who had joined the opinion of the Court in Heck, also wrote separately.
Citing Justice Frankfurter’s aphorism that “[w]isdom too often never comes, and so
one ought not to reject it merely because it comes late,” Henslee v. Union Planters
Nat’l Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting), Justice
Ginsburg declared that she had “come to agree” with Justice Souter that
“[i]ndividuals without recourse to the habeas statute because they are not ‘in custody’
(people merely fined or whose sentences have been fully served, for example) fit
within § 1983’s ‘broad reach.’” Spencer, 523 U.S. at 21 (Ginsburg, J., concurring).

       A landscape consisting of Heck and the collection of opinions in Spencer has
resulted in a conflict in the circuits about the scope of Heck’s favorable-termination
rule. Several courts—counting up the five Justices who opined in concurring and
dissenting opinions in Spencer—have concluded that the Heck bar does not apply to

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a § 1983 plaintiff who cannot bring a habeas action. See Cohen v. Longshore, 621
F.3d 1311, 1315-17 (10th Cir. 2010); Wilson v. Johnson, 535 F.3d 262, 267-68 (4th
Cir. 2008); Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 599-605
(6th Cir. 2007); Nonnette v. Small, 316 F.3d 872, 875-78 (9th Cir. 2002); Huang v.
Johnson, 251 F.3d 65, 73-75 (2d Cir. 2001); Carr v. O’Leary, 167 F.3d 1124,
1125-28 (7th Cir. 1999). Four other circuits, including this one, have adhered to the
conclusion—set forth in footnote 10 of Heck—that the favorable-termination rule still
applies when a § 1983 plaintiff is not incarcerated. Entzi, 485 F.3d at 1003; Gilles
v. Davis, 427 F.3d 197, 208-12 (3d Cir. 2005); Randell v. Johnson, 227 F.3d 300,
301-02 (5th Cir. 2000) (per curiam); Figueroa v. Rivera, 147 F.3d 77, 80-82 (1st Cir.
1998).

      After Spencer, the Supreme Court said in Muhammad v. Close, 540 U.S. 749,
752 n.2 (2004) (per curiam), that it had “no occasion to settle” whether the
unavailability of habeas may dispense with the Heck favorable-termination
requirement. We concluded in Entzi that the combination of concurring and
dissenting opinions in Spencer did not amount to a holding that binds this court. We
opted instead to follow footnote 10 in the opinion of the Court in Heck. Entzi, 485
F.3d at 1003.

       The district court, screening the complaint pursuant to the Prison Litigation
Reform Act, 28 U.S.C. § 1915A(a), dismissed Newmy’s action for failure to state a
claim. Citing Heck and Entzi, the court concluded that “the Supreme Court’s and
Eighth Circuit’s precedents relating to the intersection of habeas relief and section
1983 relief foreclose Newmy from challenging the asserted deprivation of his
constitutional rights.” R. Doc. 4, at 3. The court ruled that if Newmy were to prevail
and recover damages, the judgment would necessarily imply the invalidity of the
parole revocation and extended incarceration, so his claim was not cognizable under
§ 1983. Although Newmy was no longer incarcerated based on the underlying parole
revocation, the district court followed Entzi in ruling that Heck’s holding is not

                                         -4-
limited to plaintiffs in custody, and that the combination of separate opinions in
Spencer did not overrule Heck’s holding.

       On appeal, Newmy attempts gamely to distinguish Entzi by suggesting that the
decision is limited to circumstances in which an individual could have accessed
federal habeas but failed to do so. He relies on an argument advanced by the State
in Entzi that the plaintiff there knew as early as March 2002 that the defendants were
denying him sentence-reduction credits, but did not seek habeas relief before he was
released from custody in January 2004. He suggests, by contrast, that where
circumstances rendered access to federal habeas corpus relief “a practical
impossibility,” Entzi does not foreclose a suit under § 1983.

       The court in Entzi did not rule against the plaintiff based on his failure to
pursue habeas relief while incarcerated. We said simply, quoting Heck, that “‘the
principle barring collateral attacks . . . is not rendered inapplicable by the fortuity that
a convicted criminal is no longer incarcerated.’” 485 F.3d at 1003 (quoting 512 U.S.
at 490 n.10). We explained that if Entzi’s claim were to succeed, it “would
necessarily imply the invalidity of his conviction or sentence,” and that “[t]herefore,
the claim may be pursued only in an action for habeas corpus relief.” Id. (emphasis
added) (internal quotation omitted). There was no mention of Entzi’s alleged failure
to pursue habeas corpus relief as the reason why his § 1983 action was barred.

       If the Entzi panel had been thinking along the lines suggested by Newmy, then
it is hardly clear that the plaintiff would have been ineligible to pursue a § 1983
action under Newmy’s “practical impossibility” standard. Although Entzi first
learned about a denial of sentence-reduction credits in March 2002, the record
suggested that he was still grieving the decision through the prison’s administrative
process as late as May 2003, just eight months before he was released. Appellant’s
App. 35-36, 75-77, Entzi v. Redmann, 485 F.3d 998 (8th Cir. 2007) (No. 06-2116).
There are also questions under North Dakota law about whether state remedies were

                                            -5-
available to Entzi as a prisoner who was allegedly “unlawfully in custody or
restrained,” N.D. Cent. Code § 29-32.1-01(1)(g), in which case his time for filing a
federal habeas corpus action might not even have begun to run, much less have
expired, before he was released from custody. See Ali v. Tenn. Bd. of Pardon &
Paroles, 431 F.3d 896, 898-99 & n.1 (6th Cir. 2005).

       None of this was considered in the Entzi opinion, because it was not relevant
to the rationale. As the Third Circuit recently recognized, the Eighth Circuit—like
the First, Third, and Fifth—has “interpreted Heck to impose a universal favorable
termination requirement on all § 1983 plaintiffs attacking the validity of their
conviction or sentence.” Deemer v. Beard, No. 13-1986, 2014 WL 764862, at *3 (3d
Cir. Feb. 27, 2014) (unpublished) (citing Entzi), petition for cert. filed, 82 U.S.L.W.
3587 (U.S. Mar. 21, 2014) (No. 13-1153). We recognize that this rule could preclude
a damages remedy for an inmate who is detained for only a short time with limited
access to legal resources, but that is a consequence of the principle barring collateral
attacks that was applied in Heck. The district court correctly followed circuit
precedent in dismissing Newmy’s claim.

      The judgment of the district court is affirmed. Newmy’s motion for service of
the appeal is denied as moot.

KELLY, Circuit Judge, concurring.

      Although I agree the district court correctly applied this circuit’s precedent in
dismissing Newmy’s suit, I write separately to express my concern that our approach
“needlessly place[s] at risk the rights of those outside the intersection of § 1983 and
the habeas statute, individuals not ‘in custody’ for habeas purposes.” Heck, 512 U.S.
at 500 (Souter, J., concurring in the judgment). Indeed, in a “combination of
concurring and dissenting opinions,” supra p. 4, the Supreme Court itself cast doubt
on our broad reading of Heck. In Spencer, five Justices—in concurrence and

                                          -6-
dissent—agreed that “a former prisoner, no longer ‘in custody,’ may bring a § 1983
action establishing the unconstitutionality of a conviction or confinement without
being bound to satisfy a favorable-termination requirement that it would be
impossible as a matter of law for him to satisfy.” 523 U.S. at 21 (Souter, J.,
concurring); id. at 25 n.8 (Stevens, J., dissenting). And as the Tenth Circuit recently
reiterated, “[i]f a petitioner is unable to obtain habeas relief—at least where this
inability is not due to the petitioner’s own lack of diligence—it would be unjust to
place his claim for relief beyond the scope of § 1983 where ‘exactly the same claim
could be redressed if brought by a former prisoner who had succeeded in cutting his
custody short through habeas.’” Cohen, 621 F.3d at 1316–17 (quoting Spencer, 523
U.S. at 21 (Souter, J., concurring)).
                         ______________________________




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