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The Honorable Stephen M. Reasoner, Chief Judge, United States

District Court for the Eastern District of Arkansas, adopting the

report and recommendations of the Honorable Henry L. Jones, Jr.,

United States Magistrate Judge for the Eastern District of

Arkansas. 

___________

No. 96-1774

___________

John Henry Sheppard, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

Larry G. Hicks, Lt., CO-III * Eastern District of Arkansas

Officer, Jefferson Correction *

Facility, Arkansas Department * [UNPUBLISHED]

of Correction, *

 *

Appellee. *

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 Submitted: December 4, 1996

 Filed: December 17, 1996 ___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

John Henry Sheppard appeals from the final judgment of the

District Court1 for the Eastern District of Arkansas dismissing

with prejudice his 42 U.S.C. § 1983 action. For the reasons

discussed below, we modify the dismissal to be without prejudice

and affirm the judgment as modified.

Sheppard filed a complaint alleging that while he was an

inmate at the Jefferson County Correctional Facility (JCCF),
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Lieutenant Larry Hicks issued him three conduct violations, and

sprayed mace in his face three times for no reason. Sheppard

sought damages, restoration of 365 days of good time credit and his

class status. The magistrate judge ordered the case continued for

120 days to allow Sheppard to exhaust his administrative remedies

under 42 U.S.C. § 1997e(a)(1), and required Sheppard to notify the

court of his efforts, or risk dismissal.

 

After the 120 days had expired, Hicks moved to dismiss the

complaint, arguing that Sheppard had not fully exhausted his

administrative remedies. Sheppard opposed the dismissal, stating

that he filed a grievance with the JCCF warden, the warden and the

assistant director in Pine Bluff, but to no avail; and that he had

no further remedies. The district court, adopting the magistrate

judge's report, dismissed the action with prejudice. Sheppard

appeals. 

Exhaustion of administrative remedies is generally not

required under section 1983. Wilwording v. Swenson, 404 U.S. 249,

251 (1971) (per curiam). Without deciding whether Sheppard has

made a reasonable and good faith attempt to exhaust under 42 U.S.C.

§ 1997e, see Arvie v. Stalder, 53 F.3d 702, 705-06 (5th Cir. 1995),

or whether further exhaustion may have been futile, we conclude

that dismissal is nonetheless proper under Heck v. Humphrey, 114

S. Ct. 2364, 2372 (1994) (Heck). Because Sheppard has requested

restoration of good time credits, Heck applies. See Sheldon v.

Hundley, 83 F.3d 231, 233 (8th Cir. 1996) (if success on merits of

§ 1983 claim would imply invalidity of disciplinary result

lengthening plaintiff's time spent in prison, Heck requires

favorable termination of action in authorized state tribunal or

federal habeas court). Consequently, dismissal should be without

prejudice. See id. at 234.

Accordingly, we modify the judgment to be without prejudice

and affirm the judgment of the district court as mofidied.
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A true copy.

Attest:

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