                                _____________

                                No. 95-2057SI
                                _____________

David Allen Sheldon,                  *
                                      *
                 Appellant,           *
                                      *   Appeal from the United States
     v.                               *   District Court for the Southern
                                      *   District of Iowa.
Thomas E. Hundley; Grabowski,         *
sued as Major Grabowski;              *
Charles Harper, *
                                      *
                 Appellees.           *
                                _____________

                       Submitted:    March 15, 1996

                         Filed: May 7, 1996
                              _____________

Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
                              _____________


FAGG, Circuit Judge.


     David Allen Sheldon, an inmate at the Iowa State Penitentiary (ISP),
mailed a letter to an inmate-produced publication at another prison.     In
the letter's postscript, Sheldon had written, "We have your [expletive]
warden Thomas E. Hundley, . . . you could have kept him."     After prison
officials seized the letter, Sheldon was found guilty of violating an ISP
rule against verbal abuse.    As a result, Sheldon received fifteen days of
disciplinary detention and lost sixteen days of good conduct time.


     Sheldon did not challenge the disciplinary action in any state or
federal proceeding before filing this 42 U.S.C. § 1983 lawsuit. Sheldon's
complaint alleged his First Amendment rights were violated when Hundley,
the ISP warden, threatened him with discipline for writing the comment,
when Major Grabowski, an ISP correctional officer, charged him with
disciplinary violations, and
when Charles Harper, an ISP administrative law judge, found him guilty of
the disciplinary violation and imposed sanctions for it.      In his prayer for
relief, Sheldon sought money damages for interference with his First
Amendment rights and for time spent in disciplinary detention, and any
other appropriate relief.


     The district court granted judgment on the pleadings and dismissed
Sheldon's entire complaint with prejudice for failure to state a claim.
The district court construed Sheldon's complaint as alleging only that the
disciplinary action violated his First Amendment rights, and as seeking
recovery of lost good-time credits.      The district court held that under
Heck v. Humphrey, 114 S. Ct. 2364 (1994), a prisoner cannot bring a § 1983
claim challenging a disciplinary proceeding resulting in a loss of good-
time credits before successfully invalidating the disciplinary ruling.
Sheldon appeals.    We affirm, but modify the dismissal to be one without
prejudice to permit Sheldon to refile the action if the state or a federal
habeas court invalidates the disciplinary ruling.


     In Heck, the Supreme Court held that if a judgment favorable to a
prisoner in a § 1983 action would necessarily imply the invalidity of the
prisoner's conviction or the length of the prisoner's sentence, then a
§ 1983 action for damages does not arise until the conviction or sentence
has been reversed on direct appeal, expunged by executive order, declared
invalid by an authorized state tribunal, or called into question by the
issuance of a federal habeas writ.   114 S. Ct. at 2372.     The Court reasoned
that a prisoner should not be able to use a suit for damages to avoid
established procedures, like habeas corpus, for challenging the lawfulness
of the fact or length of confinement.      This reasoning applies whether the
prisoner   challenges   a   conviction   imposing   a   sentence   or   a   prison
administrative ruling lengthening a sentence.       Miller v. Indiana Dep't of
Corrections, 75 F.3d 330, 331 (7th Cir. 1996).       Thus, courts have applied
Heck's holding in




                                     -2-
the   context   of   prison   administrative    rulings,   including    rulings   in
disciplinary proceedings, that affect the length of a prisoner's sentence.
Id.; see Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (per curiam)
(dismissing     §    1983     action   under    Heck   where   inmate     attacked
constitutionality of parole denial and sought immediate release); Armento-
Bey v. Harper, 68 F.3d 215, 216 (8th Cir. 1995) (per curiam) (Heck's rule
not engaged where prisoner challenged constitutionality of procedure used
in disciplinary proceeding denying good-time credits, rather than result
of proceeding, because prisoner was not questioning lawfulness of continued
confinement).   Under Heck, when an inmate's success on a § 1983 claim would
necessarily imply the invalidity of the result of a disciplinary proceeding
that lengthens the inmate's prison sentence, the § 1983 claim does not
arise until the state or a federal habeas court has invalidated the
disciplinary result. Miller, 75 F.3d at 331; see Heck, 114 S. Ct. at 2373.
This is so because unless the disciplinary ruling is invalid, the length
of the prisoner's sentence is lawful.          See Heck, 114 S. Ct. at 2372.


      Sheldon asserts that Heck applies only to his claim for good-time
credits, not to his claims for money damages.           Under Heck, however, we
disregard the form of relief sought and instead look to the essence of the
plaintiff's claims.    Miller, 75 F.3d at 331; see Heck, 114 S. Ct. at 2372.
If success on the merits of a particular § 1983 claim would necessarily
imply the invalidity of a disciplinary result lengthening the plaintiff's
prison sentence, Heck requires favorable termination of the action in an
authorized state tribunal or a federal habeas court, even if the claim is
for damages rather than earlier release.        See 114 S. Ct. at 2369, 2372; see
also id. at 2379 & n.4 (Souter, J., concurring) (referring to requirement
that prisoner successfully overturn conviction or sentence before filing
§ 1983 action as "favorable termination").


      Here, Sheldon essentially asserts he had a First Amendment right to
communicate the remark about the warden, and thus, any




                                        -3-
discipline for the remark is unconstitutional.               If Sheldon is correct about
the First Amendment, the result of the disciplinary proceeding is wrong and
his punishment for the rule violation--both the loss of good-time credits
and the disciplinary detention--is improper.                Sheldon's good-time credits
should be restored and his prison sentence would be shortened as a result.
See Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973).                       Thus, Sheldon
cannot bring any § 1983 claims that challenge the disciplinary result
before the state or a federal habeas court invalidates the disciplinary
ruling.


     Contrary to Sheldon's assertion, his complaint does not present a
First Amendment claim that is not based on the disciplinary action.
According    to     Sheldon,   his    complaint     seeks    damages   for    the   prison's
interference with his mail.          We disagree.    In the complaint's statement of
the claim, paragraph one alleges Hundley told Sheldon he "would stay in
lock up" for writing the disrespectful comment.                     Paragraph two states
Grabowski sent Sheldon a disciplinary notice charging him with violating
prison rules.       The third and final paragraph states Harper found Sheldon
guilty of violating the ISP rule against verbal abuse and imposed the
disciplinary penalties.        As pleaded, 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 sentence.                 Smith v. Straughn, No.
94-3325, 1995 WL 139432, at *1 (8th Cir. Apr. 3, 1995) (unpublished per
curiam).    Although Sheldon might have an independent First Amendment claim,
he did not raise one in this complaint.


     Sheldon asserts his complaint also presents a claim that he was
disciplined in retaliation for exercising his First Amendment rights, and
argues     Heck's    favorable   termination        requirement     does     not    apply    to
retaliatory discipline claims.           See Woods v. Smith, 60




                                           -4-
F.3d 1161, 1164-66 (5th Cir. 1995), cert. denied, 116 S. Ct. 800 (1996).
Liberally construing Sheldon's complaint, we conclude Sheldon has not
alleged a retaliation claim or asserted facts presenting one.          Sheldon does
not dispute that he wrote the postcard, or suggest the ISP officials
fabricated the disciplinary charges for revenge.            See Goff v. Burton, 7
F.3d 734, 738 (8th Cir. 1993), cert. denied, 114 S. Ct. 2684 (1994).


      We note our decision does not preclude federal review of prison
disciplinary rulings.      Prisoners who challenge disciplinary rulings that
lengthen their sentence can file federal habeas actions if a state tribunal
does not overturn their disciplinary ruling, or can bypass federal habeas
and file lawsuits under § 1983 if the ruling is invalidated by the state.
See Preiser, 411 U.S. at 487, 490; Heck, 114 S. Ct. at 2369.          Accordingly,
if the state invalidates Sheldon's disciplinary ruling, he can file a
§ 1983 action for damages, but if the state does not overturn the ruling,
Sheldon must file a federal habeas action and win before filing under
§ 1983.     Indeed, in another case involving censure of outgoing mail under
the same ISP rule, a prisoner whose good-time credits were revoked brought
a   First   Amendment   challenge   under   the   federal   habeas   statute   after
unsuccessfully pursuing relief in state court.          Leonard v. Nix, 55 F.3d
370, 372 (8th Cir. 1995).       On the other hand, prisoners who challenge
disciplinary rulings that do not lengthen their sentence are probably
outside the habeas statute and able to seek damages under § 1983 without
showing favorable termination in an authorized state tribunal or a federal
habeas court.    See Heck, 114 S. Ct. at 2379 n.4 (Souter, J., concurring).
For example, if a prison only imposes disciplinary detention, removal of
the detention record from an inmate's prison file might not affect the
inmate's sentence.      See Sandin v. Conner, 115 S. Ct. 2293, 2302 (1995).


      Having reviewed the district court's dismissal of Sheldon's complaint
de novo, we affirm the dismissal, but modify it to be




                                       -5-
without prejudice so Sheldon can refile his § 1983 claims if he favorably
terminates the disciplinary ruling lengthening his sentence.   Heck, 114 S.
Ct. at 2369, 2374; Schafer, 46 F.3d at 44-45.   The statute of limitations
will pose no obstacle to refiling the § 1983 claims because the claims do
not accrue until the disciplinary ruling has been invalidated.    See Heck,
114 S. Ct. at 2373-74.     Thus, federal courts should no longer stay
prematurely filed § 1983 lawsuits, see Offet v. Solem, 823 F.2d 1256, 1261
(8th Cir. 1987), but should dismiss them without prejudice instead.   Heck,
114 S. Ct. at 2378-79 (Souter, J., concurring); Smith, 1995 WL 139432, at
*1.


      A true copy.


           Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -6-
