                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                           December 15, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-20225
                              Summary Calendar


                               SANTOS MONTOYA,

                                                       Plaintiff-Appellant,

                                   versus

   MR. JONES; D.A. TURRUBIARTE, Major; FRANCIS CHERIAN, Medical
Director; BRADIE BACHMANN, Physician Assistant; MR. ROESLER,

                                                       Defendants-Appellees.


            Appeal from the United States District Court
                 for the Southern District of Texas
                           (4:03-CV-4445)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

      Santos Montoya, Texas state prisoner # 544493, appeals, pro

se, the dismissal, pursuant to 28 U.S.C. § 1915A(b)(1), of his 42

U.S.C. § 1983 action and denial of his FED. R. CIV. P. 59(e) motion.

      Montoya contends:       because the district court denied leave to

proceed in forma pauperis, it erred in invoking 28 U.S.C. § 1915A

in   dismissing   his    civil   rights   action.       Montoya’s   claim     is

unavailing because § 1915A “applies regardless of whether the

plaintiff   has   paid    a   filing   fee   or   is   proceeding   in    forma

      *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
pauperis”.   Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir.

1998).

     Montoya claims the district court erred in denying his FED. R.

CIV. P. 59(e) motion, which maintained the pendency of his state and

federal   habeas   applications     equitably   tolled   the   two-year

limitations period, rendering his civil rights complaint timely

filed. Montoya has not demonstrated he was prevented from pursuing

his § 1983 civil rights claims by the pendency of his state or

federal habeas proceedings.       See Holmes v. Texas A&M Univ., 145

F.3d 681, 684-85 (5th Cir. 1998); Gartrell v. Gaylor, 981 F.2d 254,

257 (5th Cir. 1993).    The denial was not an abuse of discretion.

See Midland West Corp. v. FDIC, 911 F.2d 1141, 1145 (5th Cir.

1990).

     Montoya cannot attack his disciplinary proceedings resulting

in the loss of good time credits in a § 1983 action until his

“convictions” in those proceedings have been expunged, reversed, or

otherwise set aside.   Edwards v. Balisok, 520 U.S. 641, 648 (1997);

Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en banc),

cert. denied, 525 U.S. 1151 (1999).     Because Montoya’s claims call

into question the validity of those convictions, he must satisfy

the conditions of Heck v. Humphrey, 512 U.S. 477, 484-87 (1994),

before he can proceed in a civil rights action for damages.

     Accordingly, the dismissal is AFFIRMED, but the judgment is

MODIFIED to state that his claims challenging his disciplinary

                                    2
convictions are DISMISSED WITH PREJUDICE to their being asserted

again until the Heck conditions are met.   Johnson v. McElveen, 101

F.3d 423, 424 (5th Cir. 1996).

                                           AFFIRMED AS MODIFIED




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