Revised October 13, 1998

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 96-30313

____________

CHARLES W CLARKE,

Plaintiff

- Appel lee - CrossAppellant,

versus

RICHARD L STALDER, ET AL,

Defendants

RICHARD L STALDER

Defendant - Appellant - CrossAppellee

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, Ch ief 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, 5 12 U.S. 477

, 114 S. Ct.-2-

2364, 129 L. Ed. 2d 383 (1994), and Edwards v. Balisok

, 5 20 U.S.

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

Clarke, a Louisiana s tate prisoner, from bringing a facial

challenge to a portion of Rule 3 of the Louisiana D epartment of

Public Sa fety 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 H eck 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 mag istrate 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 vaca ted by 1 33 F.3d 940

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

affirmed the magistrate judge and held tha t 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 to1 At the time of the events in question, Rule 3 provided as

follows:

Defiance (Schedule B): No prisone r shall commit or

threat en 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 employ ee in any manner,

including threatening with legal redress during a

-3- 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 C larke, 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 hearingconfrontation situation (this does not mean telling an employee of

p lanned 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 of ficials 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- 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, an d 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 hi s 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 an d 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, th e panel held that “it is

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

based. That being so, a ruling in Clarke’s favor on his First-5-

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 L ouisiana Department of Corrections on

Clarke’s internal appeal of the disciplinary board decision state

that Clarke admitted to the prison discipl inary board that he

“threatened legal re d ress during a confrontation with staff.”

Clarke’s complaint, a s 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 t hat plaintiff was

stripped of good time credits and was transferr ed to a

medium security prison in retaliation for voicing his

intention to exercise his First Amendment rights.-6-

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, expu nged 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. H

eck

, 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, includi ng 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 (7t h Cir. 1997) (“The ‘conviction’ in the prison

disciplinary sense is the finding of guilt on the disciplinary-7-

charge, and if success of the pla intiff’s section 1983 claim

necessarily would imply the invalidity of that finding, then Heck

bars the claim until su ch 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 )) datestamping 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-8-

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

1997), the ty pe of prospective injunctive relief that Clarke

requests in this case )) a facial d eclaration 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 --, 11 7 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 wh y 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 S erio 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 p risoner

e ligibility for parole, we explained that “[e]ven in some broadbased 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 di stinction between-9-

claims that would merely enhance eligibility for earlier release

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

A favora ble 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 gi ve to

feder al court judgments); s ee 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 C HARLES

A LAN W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE § 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 wo uld be binding on a state court in a subsequent

action )) t he 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 have2 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 ca se )) that his due process rights were n ot 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- no choice but to strike down Clarke’s punishment and reinstate his

l ost 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 o f 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. S ee id. As such, our determination would “necessarily

imply” the invalidity of his punishment. 2 S ee 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 disciplinar y 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 disciplinar y result and the lengthened3 In response to questioning at oral argument, both sides

suggested that Louisiana courts recognize state collateral actions

challenging priso n regulations and seeking to recover lost goodtime credits. S ee, 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. 1 994);

Howard v. L ouisiana 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- 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 exc ept for Part III and related portions of Part V are

REINSTATED.4 Judge Jerry E. Smith joins the dissent only in regards to

part I of this opinion.

-12- REYNALDO G. GARZA, Circuit Judge, dissenting: 4

My colleagues in the majo rity utilize H eck 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 o nly 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 Edward s barred Clarke

f rom bringing claims for damages and reinstatement of lost go odtime credits in a § 1983 action until his convi ction has been

reversed, expunged, or otherwise declared invalid. Cl arke 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 i s facially unconstitutional and remand with

instructions to dismiss. This holding is incorrect because the

panel in its opinion did not violate Heck or Edwards

.-13- 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 in validity 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 goodtime 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 discipli n ary 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.-14-

Clarke’s admission that he t hreatened to sue provided a

convenient basis for the Disciplinary Board to quickly resolve the

proceedings against Clarke without addressing his other conduct in

viola tion 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 t ime the above inmate was

interfering with inmates assigned to extra duty. I Capt.

Moulard called inmate Clark to C/C to ta lk 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 repo rt 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

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

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

demeanor led the boar d 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.-15-

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

“clear and precise” report sp ecifically indicates that the Board

a lso 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 constituti onal issue.

The Secretary simply cannot establish from the record which grounds

formed the basis for Clarke’s con viction. 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 c onviction 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-16-

the Disciplinary Board on grounds which have nothing to

do with the plaintiff-i nmate’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 conn e ction 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, t here is sufficien t

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 Moul ard, 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 threat ened to file a lawsuit and an ARP

against Captain Moulard; and

(3) he told Captain Mou lard “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 ba sed their

decisions solely and exclusively on Charles Clarke’s threat of

legal redress

.

( Id. (italics added)).-17-

The substantive description in the August 16, 1992 writeup amply supports its i ssuance and Disciplinary Rule 3

conviction with facts that have nothing to do with a

verbal threat of litigation of administrative remedy

. The Magistr ate’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 goin g to win. O nly

the second of these actions involve s a First Amendment

claim ; the const itutional issue need not be addressed

because the punishment in independently supported by the

other two grounds.

( Id. at 4 (italics added)).

C ombativeness 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 t he 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 upo n his belligerence and his challenge to the

guard to see who would win.

. . . [B]ecoming belligerent

and t hreatening to see who would win both constitute-18-

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 repr esented 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 di scipline. . . .

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 i nsulted the employee or his

family, disci plinary action against [Clarke] w ould have been-19-

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 res ist an employee who is

performi ng 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

belli gerence 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 r emember that Justice Scalia in H eck

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 H eck or Edwards to

be an escape hatch to avoid ruling on constitutional issues that5 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- 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 succe ssful, will not demonstrate

the inval idity 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 convicti o n. 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

invalidat e 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-21-

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

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

the opportunity to seek assistance from t he 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 stat ed in my opinion in C larke 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-22-

judge’s factual findings. Clarke

, 121 F.3d at 227-31. T urner

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.-23-

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 t hose 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 imposin g disciplinary punishment on Clarke was

harmless error; (2) Therefore, the plaintiff’s acti on 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 c hallenged

p rohibition was harmless error, based both on the Department’s

co ncession 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 pros pective

declaratory and injunctive relief.

Clarke prays for prospect ive relief declaring that a

Department of Corre ctions disciplinary rule’s prohibition of a

prisoner from “threatening [any Department employee] with legal

redress during a confrontation situation” violates the free speech-24-

cla use 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. E dward s 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 sui t. H eck 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 intro duced 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.” I d

. In the present

case, as Judge Reynaldo G. Garza has cogently demonstrated in his

dissent, the Secretary of the Departmen t 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 ot her acts by

Clarke in the same episode for which Clarke does not claim

protection under the First Amendment. For instance, in the same-25-

confrontation, Clarke not only threatened to sue; he also

demonstrated belligerence or aggressiveness toward the guard; he

defiantly “cal led out” the guard; he threatened the guard while

cursing and shakin g 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 al leviate 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 overwhelm ing support for that conclusion in the record, will

have res judicata effect in Clarke’s future habeas proceeding. If

this were not the cas e, the Supreme Court in H eck would not have

stated tha t because of doctrines like independent source,

in evitable 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-toface threats to sue is con stitutional. I acknowledge the

persuasive force of my dissenting colleague’s argument on the

subject in his panel opinion. The majority did not address the-26-

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.