                      Revised October 13, 1998

                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT

                            ____________

                            No. 96-30313
                            ____________


          CHARLES W CLARKE,

                           Plaintiff - Appellee - Cross-
                           Appellant,

          versus


          RICHARD L STALDER, ET AL,

                           Defendants

          RICHARD L STALDER

                           Defendant - Appellant - Cross-
                           Appellee

          ROBERT TANNER

                           Defendant - Appellee

          CAPTAIN CHARLES MOULARD

                           Defendant - Appellee.



          Appeals from the United States District Court
              For the Eastern District of Louisiana

                          September 1, 1998

Before POLITZ, Chief Judge, REYNALDO G. GARZA, KING, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:

     We granted rehearing en banc to consider whether the Supreme

Court’s decisions in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct.
2364, 129 L. Ed. 2d 383 (1994), and Edwards v. Balisok, 520 U.S.

641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), bar Charles W.

Clarke,    a   Louisiana   state   prisoner,   from   bringing   a    facial

challenge to a portion of Rule 3 of the Louisiana Department of

Public Safety and Corrections’ Disciplinary Rules and Procedures

for Adult Prisoners (“Rule 3") in a 42 U.S.C. § 1983 action when

Clarke has not yet had his “conviction” reversed, expunged, or

otherwise declared invalid.           If Heck and Edwards do not bar

Clarke’s claim, we also granted rehearing en banc to consider the

question of whether the portion of Rule 3 in question facially

violates prisoners’ First Amendment rights.

     The magistrate judge who heard this case held that Rule 3 had

been unconstitutionally applied to Clarke and that the portion of

the rule in question was facially unconstitutional. Based on these

holdings, the magistrate judge restored Clarke’s lost good-time

credits but declined to award him damages.          On appeal, a panel of

this court reversed the magistrate judge and held that the Supreme

Court’s decisions in Heck and Edwards bar Clarke from bringing

claims for damages and reinstatement of lost good-time credits in

a § 1983 action until his “conviction” has been reversed, expunged,

or otherwise declared invalid. Clarke v. Stalder, 121 F.3d 222 (5th

Cir.), reh’g en banc granted and opinion vacated by 133 F.3d 940

(5th Cir. 1997).     In Part III of its opinion, however, the panel

affirmed   the   magistrate   judge    and   held   that   Clarke’s   facial

challenge to the constitutionality of Rule 3 was not barred by Heck

or Edwards, that Clarke had standing to bring a facial challenge to


                                    -2-
the rule, and that the portion of the rule in question was facially

violative of the First Amendment.

         Finding that Heck and Edwards bar Clarke’s facial challenge at

this time, we vacate the magistrate judge’s holding that Rule 3 is

facially unconstitutional and remand with instructions to dismiss.

All parts of the panel opinion except for Part III and related

portions of Part V are hereby reinstated.

                                            I

         The facts underlying Clarke’s confrontation with Moulard and

the ensuing suit are fully discussed in the panel opinion and

dissent, Clarke v. Stalder, supra.               As recounted there, Clarke

brought the instant action against various prison officials based

on events arising out of a confrontation with Captain Charles

Moulard, a prison guard.           Clarke interfered with another prisoner

to   whom    Moulard   had       assigned   various   chores.     When    Moulard

attempted      to   issue    a    disciplinary   report   to    Clarke,   Clarke

threatened to file a lawsuit and an administrative complaint

against Moulard. Moulard accordingly charged Clarke with violating

Rule 3. This rule, in part, prohibits a prisoner from “threatening

[a prison employee] with legal redress during a confrontation

situation”1 (“no threats of legal redress” portion).               At a hearing

     1
              At the time of the events in question, Rule 3 provided as
follows:

         Defiance (Schedule B): No prisoner shall commit or
         threaten physically or verbally to commit bodily harm
         upon an employee. No prisoner shall curse an employee or
         insult his family in the employee’s presence.         No
         prisoner shall threaten an employee in any manner,
         including threatening with legal redress during a

                                        -3-
before   a   prison   disciplinary    board,   Clarke   denied   Moulard’s

allegations, but to no avail.        The disciplinary board found that

Clarke had violated Rule 3 because Moulard’s report was clear and

precise, Clarke had offered no coherent defense, and Clarke had

little credibility.     The board also noted that Clarke “admit[ted]

he threatened legal redress during a confrontation with staff.”

The board punished Clarke with the loss of ten days good-time

credits and transferred him to a higher-security prison.

     Clarke subsequently brought this suit, alleging that the “no

threats of legal redress” portion of Rule 3 violated his rights

protected by the First Amendment and seeking damages and the return

of his good-time credits.      He also sought prospective injunctive

relief from the “no threats of legal redress” portion of the rule

on grounds of facial unconstitutionality.         A panel of this court

held that Heck and Edwards “clearly barred” Clarke’s contention

that he was entitled to damages and reinstatement of his good-time

credits because so doing would “necessarily imply” the invalidity

of his “conviction.”     See Clarke, 121 F.3d at 226.      With regard to

Clarke’s facial challenge to Rule 3, the panel held that “it is

unclear upon which portion of [Rule 3] Clarke’s conviction is

based.   That being so, a ruling in Clarke’s favor on his First


confrontation situation (this does not mean telling an employee of
planned legal redress outside a confrontation situation and
certainly does not mean the actual composition or filing of a writ,
suit, etc.; threatening to write to the Secretary, the Warden or
other institutional officials is not a violation). No prisoner
shall obstruct or resist an employee who is performing his proper
duties. No prisoner shall try to intimidate an employee to make
the employee do as the prisoner wants him to do.


                                     -4-
Amendment claim for prospective relief will not ‘necessarily imply’

the invalidity of his prison conviction.”         Id. at 227.



                                    II

      The root inconsistency in the panel opinion lies in its

finding that the prison disciplinary board punished Clarke for

violation of the “no threats of legal redress” portion of Rule 3

with regard to Clarke’s claims for damages and restoration of his

good-time credits but not with regard to his claim that this

portion of Rule 3 is facially unconstitutional.             Both the report

issued by the prison disciplinary board and the report issued by

the   Secretary   of   the   Louisiana    Department   of   Corrections   on

Clarke’s internal appeal of the disciplinary board decision state

that Clarke admitted to the prison disciplinary board that he

“threatened legal redress during a confrontation with staff.”

Clarke’s complaint, as amended, alleges that he was punished for

violating the “no threats of legal redress” portion of Rule 3 in

violation of the First Amendment.         Although the appellants argued

below and to this court at its en banc rehearing of this case that

Clarke had been punished for violating other portions of Rule 3 in

addition to the “no threats of legal redress” portion of the rule,

the magistrate’s opinion indicates as follows:

           At issue in this case is that portion of Rule 3
      which allows prison officials to discipline inmates for
      “threatening” legal redress during a “confrontation
      situation” . . . From the evidence that was presented at
      trial, the Court readily infers that plaintiff was
      stripped of good time credits and was transferred to a
      medium security prison in retaliation for voicing his
      intention to exercise his First Amendment rights.

                                    -5-
Critically, the magistrate’s opinion also states: “[h]ad [Clarke]

threatened    the   defendant    with    physical      harm   or       insulted     the

employee or his family, disciplinary action against [Clarke] would

have been appropriate under the other, unchallenged portions of DOC

Rule 3."      Accordingly, we find that Clarke was punished for

violation of the “no threats of legal redress” portion of Rule 3.

                                      III

       We start with several familiar propositions.                      A prisoner

cannot, in a § 1983 action, challenge the fact or duration of his

confinement    or     recover   good-time      credits     lost    in       a    prison

disciplinary proceeding.        See Preiser v. Rodriguez, 411 U.S. 475,

487, 93 S. Ct. 1827, 1835, 36 L. Ed. 2d 439 (1973).                      A prisoner

also cannot bring a § 1983 action seeking damages (rather than the

recovery of good-time credits) based on a “conviction” until that

“conviction” has been reversed on direct appeal, expunged by

executive    order,     or   otherwise      declared     invalid       in    a    state

collateral proceeding or by the issuance of a federal writ of

habeas corpus, if a favorable judgment would “necessarily imply”

the invalidity of the prisoner’s “conviction” or the length of his

confinement.    Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372.                         A

“conviction,” for purposes of Heck, includes a ruling in a prison

disciplinary proceeding that results in a change to the prisoner’s

sentence, including the loss of good-time credits.                     See Edwards,

520 U.S. at --, 117 S. Ct. at 1587; Stone-Bey v. Barnes, 120 F.3d

718,   721   (7th   Cir.     1997)   (“The    ‘conviction’        in    the      prison

disciplinary sense is the finding of guilt on the disciplinary


                                      -6-
charge, and if success of the plaintiff’s section 1983 claim

necessarily would imply the invalidity of that finding, then Heck

bars    the   claim    until    such     time       as     its     requirements     are

satisfied.”).         Claims    for    damages           and     declaratory    relief

challenging the procedures used in, but not the results of, prison

disciplinary proceedings are similarly not cognizable in a § 1983

action until the relevant “conviction” has been reversed, expunged,

or   otherwise   declared      invalid   if     a    favorable       judgment     would

“necessarily imply” the invalidity of the prisoner’s “conviction”

in the disciplinary proceeding or the length of the prisoner’s

confinement.     Edwards, 520 U.S. at --, 117 S. Ct. at 1588.

       Like Clarke, the prisoner-plaintiff in Edwards brought a claim

for prospective injunctive relief, in addition to bringing claims

for damages and declaratory relief. The Supreme Court remanded the

claim for prospective injunctive relief without deciding it because

it had been addressed by neither the Ninth Circuit nor the district

court. Id. at --, 117 S. Ct. at 1589.                    In passing, however, the

Supreme Court noted: “[o]rdinarily, a prayer for prospective relief

will not ‘necessarily imply’ the invalidity of a previous loss of

good time credits and so may properly be brought under § 1983.” Id.

The type of prospective injunctive relief sought in Edwards))date-

stamping witness statements))is, however, very different from that

sought by Clarke in the case at hand.               See id. Indeed, unlike the

sort of prospective relief envisioned by the Supreme Court in

Edwards that may have only an “indirect impact” on the validity of

a prisoner’s conviction, see Orellana v. Kyle, 65 F.3d 29, 31 (5th


                                       -7-
Cir. 1995); see also Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir.

1997), the type of prospective injunctive relief that Clarke

requests       in     this     case))a     facial         declaration    of    the

unconstitutionality of the “no threats of legal redress” portion of

Rule   3))is    so    intertwined   with       his   request   for   damages   and

reinstatement of his lost good-time credits that a favorable ruling

on the former would “necessarily imply” the invalidity of his loss

of good-time credits. See Edwards, 520 U.S. at --, 117 S. Ct. at

1587 (stating that “the nature of the challenge to the procedures

could be such as necessarily to imply the invalidity of the

judgment”).

       An understanding of why Clarke’s facial challenge to Rule 3

and claims for damages and restoration of lost good-time credits

are so intertwined that a favorable ruling on his facial challenge

would “necessarily imply” the invalidity of his “conviction” comes

from our opinion in Serio v. Members of Louisiana State Board of

Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987).                  In considering a

challenge      to    the   procedures    employed    in    determining   prisoner

eligibility for parole, we explained that “[e]ven in some broad-

based attacks, resolution of the factual allegations and legal

issues necessary to decide the § 1983 claim may, in effect,

automatically entitle one or more claimants to immediate or earlier

release . . . [s]uch claims must [] be pursued initially through

habeas corpus.”        Id.    To determine whether resolution of a claim

would automatically entitle a claimant to immediate release, Serio

explained that the “court must consider the distinction between


                                         -8-
claims that would merely enhance eligibility for earlier release

and those that would create entitlement to such relief.”                        Id.

       A favorable ruling on the injunctive relief that Clarke

requests))namely, that the “no threats of legal redress” portion of

Rule     3    violates      prisoners’        rights    protected    by   the    First

Amendment))would be binding on state courts in a subsequent action.

See Heck, 512 U.S. at 488 n.9, 114 S. Ct. at 2373 n.9 (“State

courts       are   bound    to   apply   federal       rules   in   determining       the

preclusive effect of federal-court decisions on issues of federal

law.”); Pilié & Pilié v. Metz, 547 So. 2d 1305, 1308-10 (La. 1989)

(explaining the preclusive effect that Louisiana courts give to

federal court judgments); see also Clayton-EL v. Fisher, 96 F.3d

236, 243 (7th Cir. 1996) (“If Clayton-EL proved in a § 1983 action

that the result of the disciplinary process was invalid, this proof

would have preclusive effect in a state court habeas corpus action

that challenged the recision of his good time credits.”); 18 CHARLES

ALAN WRIGHT    ET AL.,     FEDERAL PRACTICE   AND   PROCEDURE § 4468 (1981 & Supp.

1998). Because Clarke’s “conviction” stemmed from violation of the

“no threats of legal redress” portion of Rule 3))a determination

that again would be binding on a state court in a subsequent

action))the state court could only conclude that Clarke had been

convicted of violating an unconstitutional rule.                    Conviction based

on an unconstitutional rule is the sort of “obvious defect” that,

when established, results in nullification of the conviction. See,

e.g., Edwards, 520 U.S. --, 117 S. Ct. at 1588; Sheldon v. Hundley,

83 F.3d 231, 233 (8th Cir. 1996).               The state court thus would have


                                          -9-
no choice but to strike down Clarke’s punishment and reinstate his

lost good-time credits; resistance by the state would be “‘an

exercise in futility.’” Serio, 821 F.2d at 1119 (quoting Fulford v.

Klein, 529 F.2d 377, 381 (5th Cir. 1976), adhered to en banc, 550

F.2d 342 (1977)).

     Therefore, Clarke’s request that the “no threats of legal

redress” portion of Rule 3 be declared facially unconstitutional is

so intertwined with his requests for restoration of lost good-time

credits and damages that resolution of the issues necessary to

determine whether the “no threats of legal redress” portion of Rule

3 violates the First Amendment would, in effect, if favorable,

automatically entitle Clarke to reinstatement of his lost good-time

credits.   See id.   As such, our determination would “necessarily

imply” the invalidity of his punishment.2   See Clayton-EL, 96 F.3d

at 243; Sheldon, 83 F.3d at 234 (“Sheldon’s First Amendment claims

are so entangled with the propriety of the disciplinary result,

which triggered the loss of good-time credits, that ruling in

Sheldon’s favor on First Amendment grounds would necessarily imply

the invalidity of the disciplinary result and the lengthened

     2
          We also note that the converse is true))if we decided
that Heck did not bar Clarke’s action, reached the merits of
Clarke’s claim and held that the “no legal redress” portion of Rule
3 did not violate the First Amendment, such a ruling again would
have preclusive effect in state court, preventing Clarke from
getting his good-time credits back, which he has consistently
sought. See Dixon v. Chrans, 101 F.3d 1228, 1231 (7th Cir. 1996)
(“If a federal court were to decide))as the district judge did in
this case))that his due process rights were not violated, that
decision could also have preclusive effect in state court, possibly
preventing Dixon from obtaining the one type of relief which is
probably most important to him, or at least to most similarly
situated prisoners))restoration of good time credits.”).

                               -10-
sentence.”).    Accordingly,   because   Clarke   has   not   had   his

“conviction” reversed, expunged or otherwise declared invalid,3 his

claim that the “no threats of legal redress” portion of Rule 3 is

facially unconstitutional is not yet cognizable in a § 1983 action.

See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).          We

express no opinion as to the constitutionality of the “no threats

of legal redress” portion of Rule 3.

                                IV

     The magistrate judge’s judgment in favor of Clarke on his

claim that Rule 3 is facially unconstitutional is VACATED.           We

REMAND with instructions to dismiss this claim without prejudice to

Clarke refiling this claim at such time as he can demonstrate that

he has achieved the requisite relief.    All portions of the panel

opinion except for Part III and related portions of Part V are

REINSTATED.




     3
          In response to questioning at oral argument, both sides
suggested that Louisiana courts recognize state collateral actions
challenging prison regulations and seeking to recover lost good-
time credits. See, e.g., Louisiana ex rel. Gallagher v. Louisiana,
462 So. 2d 1221, 1230-33 (La. 1985); Louisiana ex rel. Bickman v.
Dees, 367 So. 2d 283, 288-89 (La. 1978); Bancroft v. Louisiana
Dep’t of Corrections, 635 So. 2d 738, 740 (La. Ct. App. 1994);
Howard v. Louisiana Bd. of Probation and Parole, 589 So. 2d 534,
535 (La. Ct. App. 1991); Vincent v. Louisiana Through Dep’t of
Corrections, 468 So. 2d 1329, 1332 (La. Ct. App. 1985).

                               -11-
REYNALDO G. GARZA, Circuit Judge, dissenting:4

       My colleagues in the majority utilize Heck v. Humphrey, 512

U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Edwards v.

Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 Ed. 2d 906 (1997), to

dismiss the only issue which is presented before this Court;

whether the “no threats of legal redress” portion of Rule 3

constitutes an impermissible violation of the First Amendment.

       The panel hearing Clarke’s original appeal correctly reversed

the magistrate judge and held that Heck and Edwards barred Clarke

from bringing claims for damages and reinstatement of lost good-

time credits in a § 1983 action until his conviction has been

reversed,         expunged,   or   otherwise   declared   invalid.   Clarke   v.

Stalder, 121 F.3d 222 (5th Cir.) reh’g en banc granted and opinion

vacated by 133 F.3d 940 (5th Cir. 1997).             Moreover, the panel was

correct in affirming the magistrate judge by holding that Clarke’s

facial challenge to the constitutionality of Rule 3 was not barred

by Heck or Edwards.

       The majority, however, now find that Heck and Edwards bar

Clarke’s facial challenge and vacate the magistrate judge’s holding

that       Rule    3   is   facially   unconstitutional     and   remand   with

instructions to dismiss.            This holding is incorrect because the

panel in its opinion did not violate Heck or Edwards.




       4
       Judge Jerry E. Smith joins the dissent only in regards to
part I of this opinion.

                                        -12-
                                    I.

     The majority contends that Heck and Edwards prohibit Clarke’s

request    for   prospective   injunctive   relief.    They   state   that

Clarke’s   request    for   prospective   injunctive   relief,   a   facial

declaration of the unconstitutionality of the “no threats of legal

redress” portion of Rule 3, is so intertwined with his requests for

damages and reinstatement of his lost good-time credits that

granting such relief would “necessarily imply” the invalidity of

his loss of good-time credits.       This conclusion is flawed.

     It is evident that awarding such prospective relief to Clarke

would not “necessarily imply” the invalidity of his conviction. At

best it could “possibly imply” the invalidity of his loss of good-

time credits.      This is because the “no threats of legal redress”

portion of Rule 3 may not be the only basis for his conviction.

The initial disciplinary write-up, the guard’s testimony, and

several pages worth of the Secretary’s own briefs indicate several

grounds for conviction.

     The majority however have taken these facts and “swept them

under the rug” so they can dismiss the prospective relief sought by

Clarke and not address the constitutional issue that stands before

this Court.      They state, “[a]ccordingly, we find that Clarke was

punished for violation of the “no threats of legal redress” portion

of Rule 3.”      My knowlegable colleagues have either made a terrible

mistake or now look at this case with blind eyes.          I will now go

into great detail to paint the true picture that they should have

seen.


                                   -13-
     Clarke’s admission that he threatened to sue provided a

convenient basis for the Disciplinary Board to quickly resolve the

proceedings against Clarke without addressing his other conduct in

violation    of   the   rule.   However,     Captain   Moulard   (the    guard

involved) testified at trial that Clarke “became belligerent, shook

his finger in my face and started cussing, cursing me . . . .”

Captain Moulard’s       disciplinary      report   contained   the    following

description of the incident:

     On the above date and time the above inmate was
     interfering with inmates assigned to extra duty. I Capt.
     Moulard called inmate Clark to C/C to talk to him. I
     told him I was going to write him up for interfering with
     the inmates. Inmate Clarke became belligerent [sic] and
     told me he was going to file a lawsuit and an ARP on me
     and that he was going to see who was going to win.


The Disciplinary Board found Clarke guilty of violating Rule 3.               A

space on the disciplinary report calling for the “[r]easons for

[g]uilty” contained a handwritten notation that “[i]nmate admits he

threatened legal redress during a confrontation with staff.”               This

section of the report also contains check marks next to spaces

indicating that “[r]eport is clear and precise,” “[l]ack of a

credible    defense/little      or   no   defense,”    and   “[t]he   inmate’s

demeanor led the board to believe that inmate’s testimony was

untrue.”    Clarke appealed to the Secretary, who affirmed because

“[t]his inmate admitted that he threatened legal action during this

incident . . . [h]is actions constituted an obvious violation of

Rule #3.”

     Unlike the majority contends, this evidence does not establish

that the sole reason for Clarke’s conviction was his threat to sue.

                                     -14-
In contrast, the Disciplinary Board’s reliance on Captain Moulard’s

“clear and precise” report specifically indicates that the Board

also considered Clarke’s conduct accompanying his threat to sue,

including his interference with the work of other inmates, his

belligerence, and his challenge to “see who was going to win.”

      The Secretary has “shot himself in the foot” by arguing that

based on the adequacy of other grounds in support of Clarke’s

conviction, the Court should not reach the constitutional issue.

The Secretary simply cannot establish from the record which grounds

formed the basis for Clarke’s conviction.              Specifically, the

Secretary forcefully argues that there was no evidence at trial

indicating that the conviction was based solely on Clarke’s legal

threats.      As noted above, the Disciplinary Report indicates that

the   Board    considered   the    totality   of   Clarke’s   conduct,   as

established by the guard’s “clear and precise” report.

      Although it is the trial court’s task to determine what the

specific basis for Clarke’s conviction was, suffice it to say that

there are at least questions of fact in that regard.          In fact, the

Secretary would be hard pressed to argue that the conviction was

based solely on Clarke’s threat to sue, considering Secretary’s

arguments that the record is replete with evidence of other grounds

which support Clarke’s conviction and penalty.           To provide more

detail I will illustrate some instances in which the Secretary

argues that Clarke’s threat to sue was not the sole basis for his

conviction:

      Because, the plaintiff-inmate’s August 16, 1992 write-up
      amply supports its issuance and subsequent conviction by

                                  -15-
     the Disciplinary Board on grounds which have nothing to
     do with the plaintiff-inmate’s alleged exercise of his
     First Amendment free speech rights, the lower court erred
     in even reaching the constitutional issue in this case.


(Appellant’s Original Br. at 6 (italics added)).



     This Court need not even reach the First Amendment issues
     in connection with Charles Clarke’s August 16, 1992
     write-up because he cannot show that the sole reason for
     his punishment . . . was for exercising an alleged First
     Amendment right. In other words, there is sufficient
     evidence in the record supporting the disciplinary action
     . . . on grounds which do not implicate the First
     Amendment . . . .


(Id. at 6-7 (underscoring in original, italics added)).



     As provided in the write-up itself and corroborated by
     the trial testimony of Captain Moulard, Charles Clarke
     took three (3) actions on August 16, 1992, all subjecting
     him to a Rule 3 write-up for Defiance:
          (1) he became belligerent;
          (2) he threatened to file a lawsuit and an ARP
          against Captain Moulard; and
          (3) he told Captain Moulard “he was going to see
          who was going to win.”


(Id. at 9 (bold in original, italics added)).



     There was no evidence adduced at trial whatsoever suggesting

     that Captain Moulard or the Disciplinary Board based their

     decisions solely and exclusively on Charles Clarke’s threat of

     legal redress.



(Id. (italics added)).



                               -16-
     The substantive description in the August 16, 1992 write-
     up amply supports its issuance and Disciplinary Rule 3
     conviction with facts that have nothing to do with a
     verbal threat of litigation of administrative remedy.
     The Magistrate’s Order and Reasons, however, failed to
     even address or mention this argument.


(Id. at 11 (italics added)).



     [T]he   disciplinary   proceeding   at   issue   is   independently

     supported by defiant behavior not constitutionally protected.



(Appellant’s Reply Br. at 2.)



     Clarke was originally cited for belligerence, threatening
     legal   action   in  a   confrontation   situation,   and
     challenging a guard to see who was going to win. Only
     the second of these actions involves a First Amendment
     claim; the constitutional issue need not be addressed
     because the punishment in independently supported by the
     other two grounds.


(Id. at 4 (italics added)).


     Combativeness and a challenge to prison authority are
     each   sufficient   for   defiance,   and   clearly   not
     constitutionally protected behavior. The substance of
     Clarke’s other threat does not cloak these actions with
     constitutional protection, any more than flag burning
     justifies burning down a building in the process.
     Regardless of what he said, Clarke became belligerent and
     “called out” the guard; both action constitute defiance.


(Id. at 5 (italics added)).



     Clarke’s disciplinary conviction can and should be upheld
     based upon his belligerence and his challenge to the
     guard to see who would win. . . . [B]ecoming belligerent
     and threatening to see who would win both constitute

                               -17-
     threats and intimidation efforts, and each separately
     supports conviction for defiance under the rule.


(Defendant-Appellant’s Supp. Br. For Reh’g En Banc at 8 (italics

added)).



     Clarke then became belligerent and threatened Captain
     Moulard. He cursed and shook his finger at the guard,
     and made this three-fold threat.        His belligerence
     suggested the threat of bodily harm and was an effort to
     intimidate Captain Moulard; the threat to file a lawsuit
     and an ARP similarly represented a further effort to
     intimidate the guard not to perform his duties. Finally,
     the challenge to “see who is going to win” was a direct
     threat to the guard’s authority, intimidation and an
     outright challenge to prison discipline. . . .
     Regardless of this threat of legal redress to intimidate
     the guard, Clarke is guilty of belligerence and a direct
     challenge to prison authority, both acts constituting
     defiance.


(Id. at 10 (italics added)).



     It is evident, at the very least, factual issues remain as to

the sufficiency of the other grounds for Clarke’s conviction;

therefore, sending the case back was the proper course of action.

The Secretary pointed out that the magistrate did not address the

other grounds for Clarke’s conviction.          As Clarke’s conviction

could be based on other grounds, our ruling does not necessarily

imply the invalidity of his conviction.

     Finally,    contrary    to    the    majority’s    assertion,     the

magistrate’s    statement   that    “[h]ad   [Clarke]    threatened    the

defendant with physical harm or insulted the employee or his

family,    disciplinary   action   against   [Clarke]   would   have   been


                                   -18-
appropriate under the other, unchallenged portions of DOC Rule 3,”

does not imply that Clarke’s conviction was not based on some other

aspect of the rule.      Significantly, the quoted statement does not

discuss the final two sentences of the rule, which also define

Defiance:

     No prisoner shall obstruct or resist an employee who is

     performing his proper duties.               No prisoner shall try to

     intimidate an employee to make the employee do as the prisoner

     wants him to do.



The Secretary’s assertion that Clarke’s conviction was based on his

belligerence and his direct challenge to prison authority easily

fit within these prohibitions. This further supports my conclusion

that,   because    of   the    other    potential      grounds    for   Clarke’s

conviction, our ruling does not necessarily imply the invalidity of

that conviction.

     The    majority    must   remember       that   Justice   Scalia   in   Heck

established that if a federal judicial action would “necessarily

imply” the invalidity of a prison conviction the court may not act.

Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372.                  Justice Scalia’s

words are “necessarily imply” not “possibly imply” or “probably

imply.”      The   majority    by   ruling      that   Clarke’s    request   for

prospective relief would “necessarily imply” the invalidity of his

loss of good-time credits has essentially put words in Justice

Scalia’s mouth. Justice Scalia never envisioned Heck or Edwards to

be an escape hatch to avoid ruling on constitutional issues that


                                       -19-
come before this Circuit.

     Moreover, the majority fails to fully discuss Heck.                  Justice

Scalia stated in Heck that “[I]f the district court determines that

the plaintiff’s action, even if successful, will not demonstrate

the invalidity of any outstanding criminal judgement against the

plaintiff, the action should be allowed to proceed 5. . . .” Heck,

512 U.S. at 487, 114 S. Ct. at 2372-73. This case presents just

that situation.      This Court in addressing the constitutionality of

“no threats of legal redress” portion of Rule 3 will not invalidate

Clarke’s conviction.         It is evident from the numerous examples I

have provided that the “no threats of legal redress” portion of

Rule 3 was not the sole basis for Clarke’s conviction.                          In

addition, because there are other violations of Rule 3 that the

court    may   use   to    support   Clarke’s      conviction,    there    is   no

substantial     risk      that   granting    the   prospective    relief    will

invalidate     his   conviction.      Therefore,      we   must   address   this

constitutional issue.

     It is our duty and obligation to rule on this First Amendment

issue.    It is not necessary for Clarke to have a lower court

conduct Habeas Corpus proceedings.           It will be a waste of judicial

time and resources.          Regardless of how a lower court holds our


    5
      Justice Scalia provides an example of a suit for damages for
an allegedly unreasonable search. He states that the search may be
used even if the challenged search produced evidence that was
introduced in a state trial resulting in the § 1983 plaintiff’s
outstanding conviction. That is because the plaintiff’s action will
not invalidate any outstanding criminal judgment because there are
doctrines such as independent source and inevitable discovery, and
harmless error that may be utilized. Heck, 512 U.S. at 487 n.7.

                                      -20-
circuit will eventually have to decide the constitutionality of the

“no threats of legal redress” portion of Rule 3.            The losing party

in such an action will surely appeal the lower court’s holding.

       I agree with the majority that Clarke should not have his

conviction set aside.         In fact, the original panel in which I sat

denied    such      relief.     However,     no    inmate   should      have     an

unconstitutional rule hanging over their head.              To allow this to

occur, when this Court has the opportunity to strike down the “no

threats of legal redress” portion of the Rule 3, would be wrong.

       If the majority does or does not believe that the “no threats

of legal redress” portion of Rule 3 is unconstitutional then they

should express their finding.         By doing so, it would give Clarke

the opportunity to seek assistance from the Supreme Court.                     I am

sure if the majority finds, as I have, that this portion of the

Rule 3 is unconstitutional then the State of Louisiana will appeal

this   case    to   the   Supreme   Court.        Consequently,   Clarke       will

rightfully have a final determination of the constitutionality of

Rule 3.



                                      II.



       As stated in my opinion in Clarke v. Stalder, 121 F.3d 222

(5th Cir.) reh’g en banc granted and opinion vacated by 133 F.3d

940 (5th Cir. 1997), the “no threats of legal redress” portion of

Rule 3    is   unconstitutional.       This   determination       was   made     by

applying the test set forth in Turner, in light of the magistrate


                                     -21-
judge’s factual findings.    Clarke, 121 F.3d at 227-31.     Turner

states that a prison rule, which restricts a prisoner’s freedom of

speech, should be upheld so long as it is “reasonably related” to

legitimate penological goals. Turner v. Safley, 482 U.S. 78, 89,

107 S.Ct. 2254, 2261-62 (1987).     We concluded that the goal was

legitimate.   We were, however, convinced that the prison rule was

not “reasonably related.”

     I still firmly believe that our previous holding that the “no

threats of legal redress” portion of Rule 3 was unconstitutional

was the correct determination.    Since the majority has chosen not

to address this constitutional issue, I am forced to adamantly

dissent.




                                 -22-
DENNIS, Circuit Judge, 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     plaintiff’s    action     for

prospective declaratory and injunctive relief based on the alleged

unconstitutionality 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

habeas 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


                                       -23-
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 (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

(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 plaintiff’s still-outstanding conviction.”

Id. n.7. “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 plaintiff’s 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


                                       -24-
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   judicata         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    ineffectual         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 plaintiff’s conviction was unlawful.”                       Id. at 487, n.7.

       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


                                               -25-
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.




                              -26-
