                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                                  JUN 1 1999
                                   TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 DENVER REED, JR.,

               Plaintiff - Appellant,                         No. 97-6341
        v.                                                 (W.D. Oklahoma)
 BRAD SMITH, F. MULLENS, D. L.                              (Civ. 96-874-C)
 ABBOT, TRUMAN BIDELSPACH,
 and DAVID HAM,

                Defendants- Appellees




                             ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges.


       Denver Reed, Jr., a federal prisoner proceeding pro se, appeals the district

court’s order dismissing without prejudice his claims for damages against the

defendant prison officials, asserted under Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Applying Heck v.

Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 117 S. Ct. 1584 (1997),

the district court concluded that because Mr. Reed’s claims challenged the results


        * This order and judgment is not binding precedent, except under the doctrines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.
of a prison disciplinary proceeding resulting in the loss of good-time credits, they

were not cognizable in a Bivens action. The district court reasoned that Mr.

Reed’s challenges to the disciplinary proceeding should be asserted in a habeas

corpus action rather than in a claim for damages under Bivens.

      For the reasons set forth below, we affirm the district court’s dismissal of

Mr. Reed’s due process and excessive force claims. 1



                                I. BACKGROUND

      On November 29, 1995, as federal corrections officers escorted him to the

receiving and discharge area of the Federal Transfer Center in Oklahoma City,

Oklahoma, a fight occurred between Mr. Reed and one of the defendants, Officer

Brad Smith. Officer Smith filed an incident report charging Mr. Reed with

assault. The defendant David Ham conducted a disciplinary hearing on December

15, 1995.

      Mr. Reed denied the charges. However, Officer Ham concluded that Mr.

Reed’s denial was outweighed by the eyewitness accounts of the three corrections

officers and the medical evidence. He found Mr. Reed guilty of the offense as



      1
            After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. Fed. R. App. P. 34(a). The case is therefore
ordered submitted without oral argument.

                                          2
charged and ordered the forfeiture of good time credits and placement in

disciplinary segregation. See Rec. doc 16, attach. 3.

      In the instant action, Mr. Reed alleges that Officer Smith and the

eyewitnesses to the incident conspired with one another and with Officer Ham to

falsely convict him of the assault charge. Additionally, Mr. Reed alleges that

Officers Smith and Mullens “grabbed me and tried to ramm [sic] me into and

against the wall I was facing. This attempt wasn’t good enough, these same two

officers halve [sic] walked and halve [sic] dragged me to ‘Receiving and

Discharge’ where I awaited, frighten [sic] halve [sic] to death for the airlift.” Id.

doc 3. Attach. Mr. Reed seeks to recover compensatory and punitive damages.

      The magistrate judge read Mr. Smith’s complaint as a due process

challenge to the prison disciplinary proceeding. Rec. doc. 52, at 3. The district

judge noted that Mr. Reed’s complaint also “appear[ed] to allege the use of

excessive force against the Transfer Center defendants, a cause of action which

does not implicate either the process or the substance of the disciplinary

proceeding.” Id. doc. 38, at 2.

      The magistrate judge recommended dismissal of both the due process and

excessive force claims. As to the due process claim, he noted that Mr. Reed’s

allegations, “if established, would also necessarily call into question the result of

the disciplinary hearing.” Id. doc. 52, at 6. The magistrate read the Supreme


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Court’s decision in Edwards v. Balisok, 117 S. Ct. 1584 (1997) to hold that “any

claim which would necessarily imply the invalidity of the punishment imposed in

a prison disciplinary proceeding is barred.” Id. As to Mr. Reed’s excessive

force claim, the magistrate concluded that it too was barred by Edwards. See id.

at 6 n.5. Alternatively, the magistrate concluded that Mr. Reed had failed to

exhaust his administrative remedies with respect to the excessive force claim.

See id. (citing 42 U.S.C. § 1997e(a)).

      The district judge adopted the magistrate’s report in its entirety and

dismissed Mr. Reed’s complaint without prejudice.



                                 II. DISCUSSION

                                A. Heck and Edwards

      In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that

when a prisoner seeks damages in a suit filed pursuant to 42 U.S.C. § 1983, "the

district court must consider whether a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction and sentence; if it would, the

complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487

(1994). On the other hand, “if the district court determines that the plaintiff's

action, even if successful, will not demonstrate the invalidity of any outstanding


                                          4
criminal judgment against the plaintiff, the action should be allowed to proceed,

in the absence of some other bar to the suit." Id. 2

      In subsequent decisions, Heck has been applied to judgments in prison

disciplinary proceedings. See, e.g., Edwards, 117 S. Ct. at 1586-89 (1997); Lusz

v. Scott, 126 F.3d 1018 (7th Cir. 1997). In Edwards, the Supreme Court rejected

the Ninth Circuit's ruling that "a claim challenging only the procedures employed

in a disciplinary hearing is always cognizable under § 1983." Edwards, 117 S.

Ct. at 1587. The Court observed that there was a well-established distinction in

the case law between a claim "that the procedures were wrong" and a claim "that

the result was [wrong]." Id. However, the Court further stated, "the nature of

the challenge to the procedures could be such as necessarily to imply the

invalidity of the judgment." Id. The Court then concluded that the plaintiff

prisoner’s procedural due process challenge to a disciplinary proceeding

necessarily implied the invalidity of the sanction imposed at that proceeding–the

forfeiture of good time credits. Thus, the Court said, the plaintiff’s claims for

declaratory relief and money damages were not cognizable under § 1983.

      In the instant case, the district court’s application of Edwards and Heck to

bar Mr. Reed’s claims raises legal issues that we review de novo. See Copus v.


      2
               The Court also noted that "habeas corpus is the exclusive remedy for
a state prisoner who challenges the fact or duration of his confinement and seeks
. . . speedier release." Heck, 512 U.S. at 481.

                                           5
City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998). We consider Mr. Reed’s

due process and excessive force claims separately.



                               B. Due Process Claim

      Applying Heck and Edwards, we conclude that the district court properly

dismissed Mr. Reed’s due process claim without prejudice. Although Heck and

Edwards both involved § 1983 actions, we note that they have been applied to

bar Bivens actions like Mr. Reed’s that seek relief against federal officials. See

Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997); Williams v. Hill, 74 F.3d

1339, 1340 (D.C. Cir. 1996) (per curiam). Here, Mr. Reed’s allegations that the

defendant prison officials conspired to present false evidence at the disciplinary

hearing necessarily imply that the result of the hearing–the loss of good time

credits and the imposition of disciplinary segregation--was invalid. Cf. Edwards,

117 S. Ct at 1588 (“The principal procedural defect complained of by [the

plaintiff prisoner] would, if established, necessarily imply the invalidity of the

good-time credits.”); Lusz, 126 F.3d at 1022 (7th Cir. 1997) (“A judgment in [the

plaintiff prisoner’s favor] would therefore likely imply the invalidity of the loss

of at least some of his good-time credits.”). Mr. Reed’s due process claim thus

challenges the validity of his sentence. Because he has not demonstrated that the

result of the prison disciplinary proceeding affecting his sentence “has already


                                          6
been invalidated,” Heck, 512 U.S. at 486-87 (e.g., through the issuance of a writ

of habeas corpus), Mr. Reed may not now proceed with his Bivens due process

claim.



                              C. Excessive Force Claim

         In applying Heck and Edwards to excessive force claims, courts have

reached contrasting conclusions. In Nelson v. Jashurek, 109 F.3d 142 (3d Cir.

1997), the court held that Heck did not bar an excessive force claim brought by a

plaintiff who had previously been convicted for resisting arrest. The court

acknowledged that the prior conviction established that the arresting officer was

justified in using “substantial force” in arresting the plaintiff. However, it said,

the fact that substantial force was justified “[did] not mean that the [arresting

officer] was justified in using an excessive amount of force and thus does not

mean that his actions in effectuating the arrest necessarily were objectively

reasonable.” Id. at 145. Thus, the court said, the plaintiff’s excessive force claim

did not necessarily imply the invalidity of the prior conviction. See also Simpson

v. City of Pickens, 887 F. Supp. 126, 129 (S.D. Miss. 1995) (concluding that a

prior conviction for resisting arrest did not bar plaintiff’s excessive force claim

because “it is possible for a finding that [the plaintiff] was resisting arrest to

coexist with a finding that the police used excessive force to subdue him”); Scott


                                           7
v. San Francisco Police Department, No. C-89-2781 MHP, 1995 WL 55301 (N.D.

Cal. Feb. 2, 1995) at * 3 (concluding that Heck did not bar excessive force claim

because the plaintiff “need not prove that he did not batter [the arresting officer]

in order to establish an excessive force claim arising from the same incident”),

rev’d on other grounds, 1996 WL 637842 (N.D. Cal. Oct. 24, 1996), aff’d, no.

97-15096, 1998 WL 704093 (9th Cir. Oct. 5, 1998).

      In contrast, other courts have applied Heck to bar excessive force claims.

For example, in Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996) the court applied

Heck to conclude that a plaintiff inmate could not proceed with an excessive

force claim when his conviction for battery of an officer had not been

invalidated. Analyzing Louisiana law, the court reasoned that the plaintiff’s

excessive force claim, if proved, would establish a “justification” defense to the

battery charge (i.e. that the battery was “reasonable and necessary to prevent a

forcible offense against himself.”). Hudson, 98 F.3d at 873. Thus, the court

said, if the plaintiff prevailed on the excessive force claim, that would necessarily

imply the invalidity of the prior conviction. See also Crooms v. Mercado, 955 F.

Supp. 985, 988-991 (N.D. Ill. 1997) (applying Heck to bar an excessive force

claim and noting that if the plaintiff prevailed, the trier of fact would have to

accept the plaintiff’s version of the incident, which could not have supported the

conviction for resisting a peace officer).


                                             8
      In the instant case, we need not decide how to apply Heck and Edwards to

Mr. Reed’s excessive force claim. Upon review of the allegations of the

complaint, we conclude that Mr. Reed’s allegations are insufficient to allege an

Eighth Amendment claim for excessive force.

      In order to establish such a claim, a prisoner must demonstrate that the

defendant officials engaged in the “‘unnecessary and wanton infliction of pain.’”

Hudson v. McMillan, 503 U.S. 4, 5 (1992) (quoting Whitley v. Albers, 475 U.S.

312, 319 (1986)). Factors to consider in judging the excessiveness of the force

in question include the extent of the injury, the justification for the use of force,

the relationship between the degree of force employed and the need that compels

its use, the threat reasonably perceived by prison officials, and efforts made to

temper the severity of the force. Hudson, 503 U.S. at 7. Not “every malevolent

touch by a prison guard gives rise to a federal cause of action,” and “de minimus

uses of physical force” do not violate the Eighth Amendment unless such force is

“repugnant to the conscience of mankind.” Id. at 9-10 (internal citations and

quotations omitted).

      Here, Mr. Reed’s complaint alleges that prison officials “grabbed” him,

tried to “ramm [sic] [him] into and against the wall [he] was facing,” and “halve

[sic] walked and halve [sic] dragged [him] to ‘Receiving and Discharge.’” Rec.

doc. 3 Attach. His complaint does not allege specific facts indicating that the


                                           9
defendant officials engaged the “wanton and unnecessary” infliction of pain that

constitutes a violation of the Eighth Amendment. Indeed, as the government

notes, in support of his contention that he did not assault the defendant prison

officials, Mr. Reed invokes a medical report concluding that he suffered no

injuries. See Rec. doc. 23, at 6. Accordingly, we conclude that Mr. Reed’s

allegations of excessive force fail to state a claim upon which relief can be

granted. 3



                               III. CONCLUSION

       For the reasons set forth above, we affirm the district court’s dismissal of

Mr. Reed’s complaint



                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




       3
             Mr. Reed’s motion for expansion of the record on appeal is denied.
The material he seeks to add is not necessary for disposition of this case, and, in
any event, Mr. Reed has failed to sufficiently explain why this material was not
included in the record before the district court.

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