                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-3824
                                     ___________

William G. Carter,                        *
                                          *
             Appellant,                   * Appeal from the United States
                                          * District Court for the
      v.                                  * Eastern District of Missouri.
                                          *
R. Timothy Bickhaus, P.A.,                * [UNPUBLISHED]
                                          *
             Appellee,                    *
                                     ___________

                              Submitted: June 3, 2005
                                 Filed: July 27, 2005
                                  ___________

Before BYE, MAGILL, and MELLOY, Circuit Judges.
                           ___________

PER CURIAM.

       William G. Carter was civilly committed after pleading not guilty by reason of
insanity to state criminal charges. He brought this civil-rights action against the state
prosecutor, asking for damages, release from custody, and other injunctive relief. The
district court dismissed the action under 28 U.S.C § 1915(e)(2)(B), and Carter
appeals.

       We grant Carter leave to appeal in forma pauperis. Having carefully reviewed
the record de novo, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per
curiam), we conclude for the reasons the district court stated that dismissal of the
complaint--insofar as it sought damages and injunctive relief other than release--was
proper, in part based on Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). However,
we modify the dismissal to be without prejudice. See Sheldon v. Hundley, 83 F.3d
231, 234 (8th Cir. 1996).

       As for Carter’s request for release, we agree with the district court that such
relief is not available under 42 U.S.C. § 1983, but is properly sought in a habeas
corpus petition after exhaustion of state remedies. See Preiser v. Rodriguez, 411 U.S.
475, 487-90 (1973). Construing this aspect of the complaint as a habeas petition, see
Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam) (court must look
to substance of relief sought to determine if action is § 1983 suit or habeas corpus
action; prisoner’s labeling of suit is not controlling), we are unable to determine on
the record before us whether Carter has fully exhausted the necessary state procedures
to challenge his civil commitment. The district court should make this determination
after giving Carter the opportunity to demonstrate, through an amended habeas
petition, that he has met the exhaustion requirement. Cf. Rhines v. Weber, 125 S. Ct.
1528, 1533-35 (2005) (discussing district court’s options for handling habeas
petitions in light of time limitations imposed by 28 U.S.C. § 2244(d)). We suggest
the district court reconsider Carter’s motion for appointment of counsel.

      Accordingly, we affirm in part, as modified, and remand in part for further
proceedings consistent with this opinion.
                      ______________________________




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