* This order and judgment is not binding precedent, except under the doctrines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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENVER REED, JR.,

Plaintiff - Appellant, No. 97-6341

v. (W.D. Oklahoma) BRAD SMITH, F. MULLENS, D. L. ABBOT, TRUMAN BIDELSPACH, and DAVID HAM,

Defendants- Appellees (Civ. 96-874-C)

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 clai ms 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 results1 After examining the briefs and the appellate record , this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. Fed. R. App. P. 34(a ). The case is therefore ordered submitted without oral argument. 2 of a prison disciplinary proceeding resulting in th e 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 sh ould be asserted in a habeas corpus action rather than in a claim for damages un der Bivens

. For the reasons set forth below, we affirm the dist rict court’s dismissal of Mr. Reed’s due process and excessive force claims. 1

I. BACKGROUND On November 29, 1995, as federal corrections office rs escorted him to the receiving and discharge area of the Federal Transfe r Center in Oklahoma City, Oklahoma, a fight occurred between Mr. Reed and one of the defendants, Officer Brad Smith. Officer Smith filed an incident reportcharging Mr. Reed with assault. The defendant David Ham conducted a discip linary hearing on December 15, 1995. Mr. Reed denied the charges. However, Officer Ham c oncluded that Mr. Reed’s denial was outweighed by the eyewitness acco unts of the three corrections officers and the medical evidence. He found Mr. Ree d guilty of the offense as3

charged and ordered the forfeiture of good time cre dits and placement in disciplinary segregation. See Rec. doc 16, attach. 3. In the instant action, Mr. Reed alleges that Office r Smith and the eyewitnesses to the incident conspired with one ano ther and with Officer Ham to falsely convict him of the assault charge. Additio nally, 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 [s ic] to death for the airlift.” Id. doc 3. Attach. Mr. Reed seeks to recover compensato ry and punitive damages. The magistrate judge read Mr. Smith’s complaint as a due process challenge to the prison disciplinary proceeding. R ec. 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 defenda nts, a cause of action which does not implicate either the process or the substa nce 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 clai m, he noted that Mr. Reed’s allegations, “if established, would also necessaril y call into question the result of the disciplinary hearing.” Id. doc. 52, at 6. The magistrate read the Supreme4

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 pursu ant 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 notdemonstrate the invalidity of any outstanding2 The Court also noted that "habeas corpus is the exc lusive remedy for

a state prisoner who challenges the fact or duratio n of his confinement and seeks . . . speedier release." Heck , 512 U.S. at 481. 5 criminal judgment against the plaintiff, the actio n should be allowed to proceed, in the absence of some other bar to the suit." Id. 2 In subsequent decisions, Heckhas 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 challengin g only the procedures employed in a disciplinary hearing is always cognizable unde r § 1983." Edwards , 117 S. Ct. at 1587. The Court observed that there was a w ell-established distinction in the case law between a claim "that the procedures w ere 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 ne cessarily to imply the invalidity of the judgment." Id. The Court then concluded that the plaintiff prisoner’s procedural due process challenge to a di sciplinary 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 cogni zable under § 1983. In the instant case, the district court’s applicati on of Edwards and Heckto bar Mr. Reed’s claims raises legal issues that we r eview de novo. See Copus v.6

City of Edgerton , 151 F.3d 646, 648 (7th Cir. 1998). We consider M r. Reed’s due process and excessive force claims separately.

B. Due Process Claim Applying Heckand Edwards , we conclude that the district court properly dismissed Mr. Reed’s due process claim without prej udice. Although Heckand Edwards both involved § 1983 actions, we note that they have been applied to bar Bivens actions like Mr. Reed’s that seek relief against f ederal officials. See Clemente v. Allen , 120 F.3d 703, 705 (7th Cir. 1997); Williams v. Hi ll , 74 F.3d 1339, 1340 (D.C. Cir. 1996) (per curiam). Here, Mr . Reed’s allegations that the defendant prison officials conspired to present fal se evidence at the disciplinary hearing necessarily imply that the result of the he aring–the loss of good time credits and the imposition of disciplinary segregat ion--was invalid. Cf. Edwards , 117 S. Ct at 1588 (“The principal procedural defect complained of by [the plaintiff prisoner] would, if established, necessar ily 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 affect ing his sentence “has already7

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 wit h his Bivens due process claim.

C. Excessive Force Claim In applying Heckand Edwards to excessive force claims, courts have reached contrasting conclusions. In Nelson v. Jash urek , 109 F.3d 142 (3d Cir. 1997), the court held that Heckdid not bar an excessive force claim brought by a plaintiff who had previously been convicted for res isting 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 ne cessarily were objectively reasonable.” Id. at 145. Thus, the court said, the plaintiff’s exc essive force claim did not necessarily imply the invalidity of the pri or conviction. See also Simpson v. City of Pickens , 887 F. Supp. 126, 129 (S.D. Miss. 1995) (concludi ng that a prior conviction for resisting arrest did not bar p laintiff’s excessive force claim because “it is possible for a finding that [the pla intiff] was resisting arrest to coexist with a finding that the police used excessi ve force to subdue him”); Scott8

v. San Francisco Police Department , No. C-89-2781 MHP, 1995 WL 55301 (N.D. Cal. Feb. 2, 1995) at * 3 (concluding that Heckdid not bar excessive force claim because the plaintiff “need not prove that he did n ot batter [the arresting officer] in order to establish an excessive force claim aris ing 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 Heckto conclude that a plaintiff inmate could not proc eed with an excessive force claim when his conviction for battery of an o fficer had not been invalidated. Analyzing Louisiana law, the court re asoned that the plaintiff’s excessive force claim, if proved, would establish a“justification” defense to the battery charge (i.e. that the battery was “reasonab le 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 f orce 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 Heckto bar an excessive force claim and noting that if the plaintiff prevailed, t he trier of fact would have to accept the plaintiff’s version of the incident, whi ch could not have supported the conviction for resisting a peace officer).9

In the instant case, we need not decide how to appl y Heckand Edwards to Mr. Reed’s excessive force claim. Upon review of t he 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 mustdemonstrate that the defendant officials engaged in the “‘unnecessary an d 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 t he 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 employ ed 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 cau se of action,” and “de minimus uses of physical force” do not violate the Eighth A mendment 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 off icials “grabbed” him, tried to “ramm [sic] [him] into and against the wal l [he] was facing,” and “halve [sic] walked and halve [sic] dragged [him] to ‘Rece iving and Discharge.’” Rec. doc. 3 Attach. His complaint does not allege spec ific facts indicating that the3 Mr. Reed’s motion for expansion of the record on ap peal is denied.

The material he seeks to add is not necessary for d isposition of this case, and, in any event, Mr. Reed has failed to sufficiently expl ain why this material was not included in the record before the district court. 10 defendant officials engaged the “wanton and unnece ssary” infliction of pain that constitutes a violation of the Eighth Amendment. I ndeed, as the government notes, in support of his contention that he did not assault the defendant prison officials, Mr. Reed invokes a medical report conclu ding 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 clai m upon which relief can be granted. 3

III. CONCLUSION For the reasons set forth above, we affirm the dist rict court’s dismissal of Mr. Reed’s complaint

Entered for the Court, Robert H. Henry Circuit Judge