                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           FEB 11 2004
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    LEONARD RENAL ROBERTS,

                  Plaintiff-Appellant,

    v.                                                    No. 03-5062
                                                    (D.C. No. 99-CV-842-P)
    RON CHAMPION, Warden;                                 (N.D. Okla.)
    JAMES SAFFLE; RON COLLIVER,
    Case Manager Supervisor,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before BRISCOE and McKAY , Circuit Judges, and          BRORBY , Senior Circuit
Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the 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.




*
      This order and judgment is not binding precedent, except under the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.
       Plaintiff-appellant Leonard Renal Roberts, a pro se state prisoner

incarcerated in Oklahoma, appeals the district court’s dismissal of his 42 U.S.C.

§ 1983 civil rights action for failure to state a claim under Fed. R. Civ. P.

12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

       We review the dismissal of plaintiff’s complaint under Rule 12(b)(6) and

§ 1915(e)(2)(B)(ii) de novo, accepting the allegations in the complaint as true

and construing them in the light most favorable to the plaintiff.   See Perkins v.

Kan. Dep’t of Corrs. , 165 F.3d 803, 806 (10th Cir. 1999). We also construe the

allegations in a pro se complaint liberally, and “[d]ismissal of a pro se complaint

for failure to state a claim is proper only where it is obvious that the plaintiff

cannot prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.”     Id. Applying these standards, we agree with the district

court that plaintiff has failed to state a claim upon which relief can be granted.

We also conclude that it would be futile to give plaintiff an opportunity to file an

amended complaint.

       Plaintiff was formerly incarcerated at the Dick Conner Correctional Center

(DCCC), and he is presently incarcerated at the Oklahoma State Penitentiary

(OSP). In his complaint, plaintiff asserted a number of claims for relief relating

to his confinement at DCCC and OSP. However, plaintiff abandoned the bulk of


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his claims when he filed his objections to the magistrate judge’s report and

recommendation, and he is now appealing only the district court’s determination

that he failed to state a claim for relief relating to a prison disciplinary proceeding

at DCCC. 1

      In January 1999, while incarcerated at DCCC, plaintiff was convicted of

the offense of menacing a staff member. As a result of the menacing conviction,

plaintiff was placed in disciplinary segregation for thirty days, he lost 365 days of

earned credits, he was fined $50.00, and he was transferred to a maximum

security facility at OSP. In addition, plaintiff alleges that he has subsequently

been denied parole due to the menacing conviction.

      Plaintiff claims that the prison officials at DCCC acted with malicious

intent and violated his due process rights when they convicted him of the

menacing offense because: (1) they failed to conduct a proper investigation

regarding the allegations underlying the offense; (2) they prosecuted plaintiff



1
        In his opening brief, plaintiff also alleges that, following his transfer to
OSP, the prison officials at that facility damaged and/or lost certain items of
personal property that he owned and denied him access to the prison law library
for two years. However, plaintiff waived his property claim by failing to assert it
in his objections to the magistrate judge’s report and recommendation.         See Moore
v. United States , 950 F.2d 656, 659 (10th Cir. 1991). Further, because he has not
alleged any facts showing that he was unable to pursue a specific legal claim due
to his alleged lack of access to the prison law library at OSP, plaintiff has failed
to state a claim for denial of access to the courts.     See Lewis v. Casey , 518 U.S.
343, 349-53 (1996).

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based on false allegations; (3) they concluded that plaintiff was guilty of the

menacing offense and that he posed a security risk at DCCC before he received a

disciplinary hearing; and (4) they failed to conduct a proper disciplinary hearing,

and instead conducted what plaintiff refers to as a “mock” hearing. Plaintiff also

claims that the prison officials prosecuted the misconduct charge to retaliate

against him for filing grievances regarding alleged religious discrimination at

DCCC and certain alleged problems with his prison bank account. As relief for

the alleged due process violations and the unlawful retaliation, plaintiff is seeking

to recover money damages and to have the menacing conviction expunged from

his prison record and his earned credits restored.

      The district court concluded that, based on the Supreme Court’s decisions

in Heck v. Humphrey , 512 U.S. 477 (1994) and      Edwards v. Balisok , 520 U.S. 641

(1997), plaintiff had failed to state a due process claim for the recovery of money

damages. R., Doc. 40 at 2. We agree. As the Supreme Court explained in

Edwards , “a state prisoner’s claim for damages is not cognizable under 42 U.S.C.

§ 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that

the conviction or sentence has previously been invalidated.”    Edwards , 520 U.S.

at 643 (quoting Heck , 512 U.S. at 487). Moreover, as the district court

recognized, “this rule of law applies not only when the prisoner challenges his


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judgment as a substantive matter but also when he challenges misconducts entered

as a result of prison disciplinary infractions.” R., Doc. 40 at 2 (citing    Edwards ,

520 U.S. at 648). Having considered the allegations underlying plaintiff’s due

process claim, we agree with the district court that a judgment in favor of plaintiff

would necessarily imply the invalidity of his menacing conviction. Consequently,

because plaintiff has not shown that the menacing conviction has previously been

invalidated, plaintiff’s “request for damages resulting from his prison disciplinary

proceedings, must be dismissed based on [       Heck and Edwards ].” Id.

       The fact that plaintiff is also asserting a retaliation claim does not change

this result. First, like the prisoner in   Edwards , plaintiff is claiming that the prison

officials acted in a deceitful and biased manner when they prosecuted him for the

menacing offense.      See Edwards , 520 U.S. at 647 (noting that prisoner was

“asserting that the cause of the exclusion of the exculpatory evidence was the

deceit and bias of the hearing officer”). Second, plaintiff’s allegations of deceit

and bias form the basis of both his due process claim and his retaliation claim,

and his ability to recover on either of these claims will depend upon whether

he can establish that his menacing conviction was based on false allegations.

As a result, in order to prevail on his retaliation claim, plaintiff must necessarily

establish that his conviction for the menacing offense was wrongfully obtained,

and therefore invalid. Thus, plaintiff’s retaliation claim is not cognizable under


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§ 1983 unless and until the menacing conviction has been expunged or overturned

as a matter of state law.

       Finally, because plaintiff is seeking to have his earned credits restored and

is claiming that he has been denied parole based on the menacing conviction, we

also agree with the district court that the Supreme Court’s decision in     Preiser v.

Rodriguez , 411 U.S. 475 (1973) bars plaintiff from proceeding under § 1983.

See R., Doc. 40 at 2. In accordance with     Preiser , plaintiff’s sole remedy in

federal court is to file a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 after exhausting all available remedies under state law.       See Preiser, 411

U.S. at 500 (holding “that when a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is a determination

that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus”);       Brown v.

Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (holding that a 28 U.S.C. § 2241

habeas petition is the appropriate means by which to seek the restoration of good-

time credits).




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       The judgment of the district court is AFFIRMED. Because the district

court granted plaintiff leave to proceed on appeal in forma pauperis, we remind

plaintiff of his continued obligation to make partial payments toward the appellate

filing fee until it is paid in full.


                                                   Entered for the Court


                                                   Wade Brorby
                                                   Senior Circuit Judge




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