FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXANDER THOMAS 

HEBRARD, 

Plaintiff-Appellant, 

 v. 

JEREMY M. NOFZIGER; 

BRANDON KELLY; JASON 

BROWN; C. GOVE, 

Defendants-Appellees.

No.22-35327 

D.C. No.

6:19-cv-01498-

YY 

OPINION

Appeal from the United States District Court

for the District of Oregon

Youlee Yim You, Magistrate Judge, Presiding

Argued and Submitted April 17, 2023

Portland, Oregon

Filed January 11, 2024

Before: Johnnie B. Rawlinson, Carlos T. Bea, and Jennifer 

Sung, Circuit Judges.

Opinion by Judge Bea;

Dissent by Judge Sung
2 HEBRARD V. NOFZIGER

SUMMARY*

Prisoner Civil Rights/Heck v. Humphrey

The panel affirmed the district court’s sua sponte 

dismissal of Oregon inmate Alexander Hebrard’s 42 U.S.C. 

§ 1983 complaint as barred by Heck v. Humphrey, 512 U.S. 

477 (1994). 

Hebrard alleged that he was disciplined in prison without 

due process of law and sought damages for the disciplinary 

sanctions imposed, but did not seek relief for the revocation 

of 27 days of his earned-time credits. Three years after 

Hebrard’s complaint was filed, the district court sua sponte 

requested briefing on whether Heck barred his claim. Under 

Heck, a section 1983 suit for damages that would necessarily 

imply the invalidity of the length of an inmate’s sentence 

must be dismissed unless the inmate first challenges his 

sentence in habeas and obtains relief. 

The panel determined that defendant’s failure to plead 

Heck as an affirmative defense constituted a forfeiture rather 

than a waiver. The district court did not err when it sua 

sponte resurrected defendant’s forfeited Heck defense at the 

summary judgment stage and dismissed the complaint under 

the Prison Litigation Reform Act, 28 U.S.C. 

1915(e)(2)(B)(ii), which provides that dismissals for failure 

to state a claim are obligatory, even when the legal basis for 

the dismissal is raised sua sponte. 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HEBRARD V. NOFZIGER 3

Addressing the merits of the dismissal, the panel held 

that it was clear from the face of the complaint that Hebrard’s 

claim necessarily implicated the validity of the revocation of 

his earned-time credits, which extended his stay in prison. 

Under Edwards v. Balisok, 520 U.S. 641 (1997), Hebrard’s 

decision not to request relief for the loss of his earned-time 

credits did not mean his claim did not challenge the validity 

of the duration of his confinement. A successful challenge to 

the validity of the procedures employed during Hebrard’s 

disciplinary hearing necessarily encompassed a 

determination that the prison could not validly impose any 

sanctions—including the revocation of plaintiff’s earnedtime credits. To comply with Heck, Hebrard had to obtain 

habeas relief before filing this § 1983 action. Because he did 

not do so, his claim was barred by Heck. 

Dissenting, Judge Sung stated that on this record, it was 

uncertain whether the restoration of Hebrard’s earned-time 

credits would necessarily lead to his immediate or speedier 

release from custody. Under Oregon law, it is possible that 

Hebrard is receiving earned-time credits that cannot lead to 

his immediate or speedier release. She therefore disagreed 

with the conclusion that the district court properly dismissed 

Hebrard’s claim as Heck-barred.

COUNSEL

Jeremy A. Carp (argued), Erick J. Haynie, and Craig Streit, 

Perkins Coie LLP, Portland, Oregon, for Plaintiff-Appellant. 

Jon Zunkel-Decoursey (argued), Assistant Attorney 

General; Benjamin Gutman, Solicitor General; Ellen F. 

Rosenblum, Attorney General; Oregon Department of 

Justice, Salem, Oregon; for Defendants-Appellees. 
4 HEBRARD V. NOFZIGER

OPINION

BEA, Circuit Judge:

Plaintiff-Appellant Alexander Hebrard (“Hebrard”), an 

Oregon state inmate proceeding in forma pauperis, appeals 

the dismissal of his 42 U.S.C. § 1983 action as barred by 

Heck v. Humphrey, 512 U.S. 477 (1994). Hebrard claimed

that he was disciplined in prison without due process of law

because he was prevented from presenting an adequate 

defense and therefore was found guilty of what he claims are

baseless rule violations by Defendant-Appellee Jeremy 

Nofziger (“Nofziger”), the prison official who presided over 

his disciplinary hearing. Hebrard sought damages for the 

sanctions Nofziger imposed, save for the revocation of 27 

days of his earned-time credits, as to which he requested no 

relief in this case.

Three years after Hebrard’s complaint was filed, the 

district court sua sponte requested briefing on whether Heck

barred his claim. Under Heck, “a § 1983 suit for damages 

that would . . . ‘necessarily imply’ the invalidity of the length 

of an inmate’s sentence” must be dismissed unless the 

inmate first challenged his sentence in habeas and obtained

relief. Nelson v. Campbell, 541 U.S. 637, 646 (2004). The 

district court held that Heck required a dismissal of

Hebrard’s claim. Hebrard sought to expunge all of his 

disciplinary convictions, on a basis which would thereby

necessarily invalidate all the sanctions imposed—including 

the revocation of his earned-time credits. And because the 

revocation of Hebrard’s credits lengthened his sentence, the 

district court held that Hebrard should have first filed his 

claim in habeas. His failure to do so meant the court was 

required to dismiss the action as barred by Heck.
HEBRARD V. NOFZIGER 5

We conclude that the district court did not err. Under the 

Prison Litigation Reform Act (“PLRA”), it was authorized

to dismiss Hebrard’s in forma pauperis complaint for failure 

to state a claim, even though it had raised Heck sua sponte. 

And the court correctly held that were Hebrard’s claim 

successful, it would call into doubt the proper duration of his 

confinement. As a result, to comply with Heck, Hebrard

needed to obtain habeas relief before filing this § 1983 

action. Because he did not do so, his claim must be 

dismissed as Heck-barred. Accordingly, we affirm.

I. BACKGROUND1

A. Factual Background

In 2018, prison officials began to suspect that Hebrard

had used his prison account to launder money and had

smuggled drugs into prison. As a result, he was charged with 

violating the prison’s rules against racketeering, distribution 

of a controlled substance, possession of drugs, and 

possession of contraband. Prior to the disciplinary hearing, 

Hebrard submitted written requests for the production of 

evidence related to the charges. He demanded that the prison 

produce the letters Hebrard purportedly wrote to his 

confederates discussing illicit activities, the videos of his 

prison visits with these individuals, and the transcripts of the 

phone calls he had with them. 

Nofziger presided over Hebrard’s disciplinary hearing, 

which was held on November 27, 2018. At the hearing, 

Nofziger read the charges against Hebrard and denied each 

of Hebrard’s written evidentiary requests—allegedly 

1 Except where otherwise stated, these facts are taken from Hebrard’s 

complaint and are accepted as true. See Hoeft v. Tucson Unified Sch. 

Dist., 967 F.2d 1298, 1301 n.2 (9th Cir. 1992).
6 HEBRARD V. NOFZIGER

without “a valid or reasonable reason.” The transcript of the 

disciplinary hearing reveals that Nofziger had informed

Hebrard that these requests were denied because they were 

either moot, or because the requested information was 

confidential. Nofziger then reviewed the evidence

supporting the charges against Hebrard. Nofziger read 

transcripts of Hebrard’s calls that involved Hebrard’s 

conversations with his associates regarding drug smuggling

and money his associates deposited into his prison account 

that was not theirs. And Nofziger stated on the record that

several letters in Hebrard’s handwriting described how he 

planned to smuggle drugs into the prison. Hebrard was not 

permitted to see either the transcripts or the letters.

At the end of the hearing, Nofziger found Hebrard guilty 

of the drug possession, distribution of a controlled substance, 

and racketeering charges and was sanctioned. Hebrard was 

fined $100, had $1,050 confiscated from his prison account,

was placed in segregated housing for 120 days, lost 365 days 

of visitation rights, and had 27 days of his earned-time 

credits revoked. The final disciplinary report reveals that the 

sanctions were imposed collectively and that the rule 

violations had been merged together. The prison denied 

Hebrard’s administrative appeal on February 6, 2019.

B. Procedural History

On September 17, 2019, Hebrard filed this § 1983 action. 

The complaint named several defendants, but only Nofziger 

remains.

2

 Hebrard claimed that Nofziger’s actions during 

the disciplinary hearing violated his procedural due process 

2 Hebrard voluntarily agreed to have the district court enter summary 

judgment in favor of the other named defendants. Thus, only Hebrard’s 

Fourteenth Amendment procedural due process claim against Nofziger 

is before us on appeal.
HEBRARD V. NOFZIGER 7

rights under the Fourteenth Amendment. In particular, he

claimed that Nofziger lacked an evidentiary basis to find him

guilty of the rule violations: Nofziger was alleged not to have

called witnesses, produced documentary evidence, or 

provided an adequate explanation for his denial of Hebrard’s 

request for an investigation into the charges. In his prayer 

for relief, Hebrard sought damages for the sanctions 

imposed. He specifically sought to recoup the confiscated 

money and the fine as well as to recover damages for his 

placement in segregated housing and for his loss of visitation 

rights. But Hebrard did not seek damages for the revocation 

of his earned-time credits.

3

Hebrard filed an application for leave to proceed in 

forma pauperis, which the district court granted. On May 

14, 2020, approximately one year and three months after 

Hebrard’s administrative appeal was denied, Nofziger filed

his answer. Nofziger raised qualified immunity and the 

PLRA’s exhaustion requirement as affirmative defenses.

On June 28, 2021, Nofziger moved for summary 

judgment contending that he had not violated Hebrard’s due 

process rights and that he was entitled to qualified immunity. 

Following briefing and a hearing on the motion, the district 

court requested supplemental briefing on whether Heck v. 

Humphrey barred Hebrard’s claim. This was the first time

3 Hebrard’s briefing describes these 27 days as “good-time” credits 

whereas Nofziger’s briefing and Hebrard’s complaint describe them as

“earned-time” credits. The difference in terminology is immaterial 

because the parties use the terms synonymously. See Samson v. Brown, 

486 P.3d 59, 61 (Or. Ct. App. 2021). Given the complaint and final 

disciplinary report use the term “earned-time” credits, we will do so as 

well.
8 HEBRARD V. NOFZIGER

anyone had raised Heck as a potential bar to Hebrard’s 

ability to obtain relief.

After the parties filed supplemental briefing regarding 

Heck, the district court issued its opinion and order which 

dismissed Hebrard’s suit. The court held that the PLRA 

authorized its sua sponte dismissal under Heck because “it 

[wa]s apparent on the face of the complaint that Heck

bar[red] [hi]s claim[].” The court held that were Hebrard to 

succeed on his claim that his procedural due process rights

were violated at his disciplinary hearing, the favorable ruling

would implicitly call into doubt the revocation of his earnedtime credits, which had extended his stay in prison. Because

Hebrard had not overturned his disciplinary conviction in a

habeas proceeding as Heck required, the court dismissed his

claim without prejudice and entered judgment. Hebrard 

timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291.4

II. STANDARD OF REVIEW

We review the dismissal of a complaint as Heck-barred 

de novo. Beets v. Cnty. of L.A., 669 F.3d 1038, 1041 (9th 

Cir. 2012). And we review the district court’s interpretation 

and application of the PLRA de novo. Andrews v. 

Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Like Rule 

4 Although no party raised the issue, we must ensure we have appellate 

jurisdiction over this appeal. Doe v. Regents of the Univ. of Cali., 891 

F.3d 1147, 1154 (9th Cir. 2018). This court has appellate jurisdiction 

over dismissals without prejudice for failure to satisfy an exhaustion 

requirement. Elliott v. White Mountain Apache Tribal Ct., 566 F.3d 842, 

845–46 (9th Cir. 2009). Under our case law, Heck is akin to such an

exhaustion requirement. Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 

F.3d 1048, 1056 (9th Cir. 2016). It is clear we have appellate jurisdiction

here.
HEBRARD V. NOFZIGER 9

12(b)(6) dismissals, dismissals of in forma pauperis

complaints for failure to state a claim under 28 U.S.C. 

§ 1915(e) are reviewed de novo. Barren v. Harrington, 152 

F.3d 1193, 1194 (9th Cir. 1998). 

III.THE DISTRICT COURT’S SUA SPONTE 

DISMISSAL

Before we assess whether Heck bars Hebrard’s claim, we 

must resolve his preliminary challenges to the district court’s

sua sponte dismissal of his claim. Hebrard contends the 

dismissal was improper because Nofziger waived Heck. 

And he contends that even were Nofziger’s failure to raise 

Heck only a forfeiture, the court’s sua sponte dismissal of 

his complaint as Heck-barred at the summary judgment stage

must be reversed because it was prejudicial.

We agree with Hebrard that Heck is an affirmative 

defense that may be waived or forfeited. Washington v. Los 

Angeles County Sheriff’s Department, 833 F.3d 1048, 1056

& n.5 (9th Cir. 2016). But as explained below, Nofziger did 

not waive Heck. Nofziger’s failure to plead Heck as an 

affirmative defense clearly constituted only a forfeiture. 

And as is further explained below, we also hold that the 

district court did not err when it looked past Nofziger’s 

forfeiture and sua sponte evaluated whether Heck barred 

Hebrard’s claim. This is because the PLRA expressly 

authorized the district court to dismiss Hebrard’s complaint

for failure to state a claim at any time, even when it raised 

the legal basis for the dismissal of its own accord.

A. Nofziger’s Alleged Waiver

Hebrard’s waiver argument is based solely on the fact 

that Nofziger “[n]ever raised Heck as a defense.” But as we 

have explained, the failure to raise an argument in a timely 
10 HEBRARD V. NOFZIGER

fashion is a forfeiture not a waiver. Hill v. Xerox Bus. Servs., 

LLC, 59 F.4th 457, 472 n.18 (9th Cir. 2023). Even at oral 

argument when pressed to distinguish between the two, 

Hebrard continued to argue that Nofziger’s failure to raise 

Heck and the “sheer passage of time” were sufficient to 

constitute a waiver. They are not. A finding of waiver 

requires evidence of a party’s actions that evince his

intentional relinquishment of a known right. Id. at 471–79; 

accord United States v. Depue, 912 F.3d 1227, 1233 (9th 

Cir. 2019). Hebrard’s failure to identify any of Nofziger’s

actions in this case that even remotely suggest he 

“intentionally relinquished” his Heck defense compels us to 

conclude that the Heck defense was not waived. Crowley v. 

Epicept Corp., 883 F.3d 739, 748 (9th Cir. 2018).

B. Sua Sponte Dismissals under the PLRA

Hebrard next contends that the sua sponte dismissal was 

improper because the district court’s resurrection of 

Nofziger’s forfeited Heck defense was prejudicial. This 

argument fails under the plain terms of the PLRA.

Hebrard proceeded in forma pauperis below, which 

means he is subject to the PLRA. Under the PLRA, a “court 

shall dismiss the case at any time if the court determines that

. . . the action . . . fails to state a claim on which relief may 

be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). This provision 

authorizes “sua sponte dismissals of in forma pauperis

cases” that fail to state a claim for relief. Jones v. Bock, 549 

U.S. 199, 214 (2007) (citing 28 U.S.C. § 1915(e)(2)(B)). 

Thus, § 1915(e) “not only permits but requires a district 

court to dismiss an in forma pauperis complaint that fails to 

state a claim.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 

2000) (en banc) (emphasis added). And, under the PLRA,

this mandatory sua sponte dismissal may occur at “at any 
HEBRARD V. NOFZIGER 11

time.” Barren, 152 F.3d at 1194 (quoting 28 U.S.C. 

§ 1915(e)(2)(B)(ii)). Admittedly, the same substantive rules 

apply to Rule 12(b)(6) and § 1915(e) dismissals for failure 

to state a claim. Lopez, 203 F.3d at 1127–28. But under the 

plain text of the PLRA, § 1915(e) dismissals for failure to 

state a claim, unlike Rule 12(b)(6) dismissals, are obligatory, 

even if the court raised the legal basis for the dismissal sua 

sponte. Lopez, 203 F.3d at 1127, 1130.

Thus, Nofziger’s forfeiture did not bar the court’s sua 

sponte application of Heck to Hebrard’s claim. Given his in 

forma pauperis status, § 1915(e) authorized the district court 

to raise Heck as a defense to his claim at any time of its own 

accord. And because the district court found that Heck was 

“an obvious bar to securing relief on the face of the

complaint,” Washington, 833 F.3d at 1056 (citation and 

internal quotation marks omitted)—the standard that 

governs whether a complaint fails to state a claim for relief 

because the cause of action is barred by Heck—the plain 

terms of the PLRA mandated the dismissal of Hebrard’s 

complaint for failure to state a claim.

5

 Thus, under 

5 Hebrard suffered no prejudice as a result of the district court’s sua 

sponte application of Heck. His underlying due process claim is almost 

certainly meritless. A disciplinary conviction comports with due process 

if the prison’s disciplinary findings are supported “by some evidence in 

the record.” Walpole v. Hill, 472 U.S. 445, 454 (1985). And due process 

permits officials to limit a prisoner’s access to evidence if such access 

would create a risk to the safety of others or the operations of the prison. 

Wolff v. McDonnell, 418 U.S. 539, 566–67 (1974). Nofziger satisfied 

due process here. He discussed Hebrard’s phone calls and letters, which

contained evidence that substantiated the disciplinary charges. And 

Nofziger informed Hebrard that his requests for witnesses and further 

documentary evidence would create a risk to the safety and security of 

the prison’s operations. Given Hebrard’s underlying challenge would 

not otherwise merit relief, the delay in the court’s sua sponte dismissal 
12 HEBRARD V. NOFZIGER

§ 1915(e), the district court did not err when it sua sponte

resurrected Nofziger’s forfeited Heck defense at the 

summary judgment stage.

IV.FAILURE TO STATE A CLAIM

Because the PLRA authorized the district court to 

evaluate whether Heck barred Hebrard’s claim of its own 

accord, we must assess whether it properly dismissed

Hebrard’s complaint for failure to state a claim for relief.

We will affirm the district court’s dismissal of his claim only 

if the Heck bar is obvious from the face of his complaint. 

Washington, 833 F.3d at 1056. 

The Heck-bar, or required favorable termination rule, is 

a rule of preclusion named after Heck v. Humphrey—the 

Supreme Court case that outlined the doctrine. Heck

involved a state criminal defendant who filed a § 1983 

damages claim for a purportedly unlawful arrest and 

investigation that resulted in his manslaughter conviction. 

512 U.S. at 478–79. The Court held that the defendant’s 

§ 1983 action was properly dismissed because his state court 

conviction, which had not yet been overturned, precluded his 

civil claim for damages. Id. at 483. It adopted this rule 

because the defendant’s § 1983 claim was analogous to the 

malicious prosecution tort. Id. at 484. At common law, to 

maintain a malicious prosecution claim (i.e., a claim for 

“damages for confinement [improperly] imposed pursuant to 

legal process”), a party had “to prove the unlawfulness of his 

conviction or confinement.” Id. at 484, 486. The

requirement that a criminal defendant first obtain a favorable 

termination of his conviction before filing a malicious 

prosecution claim ensured that he could not collaterally 

of his claim as Heck-barred was not prejudicial.
HEBRARD V. NOFZIGER 13

“challeng[e] the validity of [an] outstanding criminal 

judgment[]” via a “civil tort action[].” Id. at 486. As a result, 

the Heck Court held that to prevent a dismissal of his cause 

of action, a plaintiff, whose § 1983 claim arose from “harm 

caused by actions whose unlawfulness would render [his] 

conviction or sentence invalid,” needed to prove that he had 

first overturned his conviction or sentence in another 

proceeding. Id. at 486–87. 

The Supreme Court extended the application of Heck to

the prison context in Edwards v. Balisok. 520 U.S. 641 

(1997). The prisoner in Edwards filed a § 1983 cause of 

action claiming that his prison disciplinary conviction 

violated his Fourteenth Amendment due process rights

because he was “denied the opportunity to put on a defense” 

or “to present [] extant exculpatory evidence.” Id. at 643, 

646–47. He was found guilty of violating four prison rules

for which he was sentenced to spend 10 days in isolation, to 

spend 20 days in segregated housing, and to lose 30 days of 

earned time that would have shortened his sentence.

6

 Id. at 

643. The prisoner in Edwards sought a declaration that the 

procedures used at his disciplinary hearing violated his due 

process rights and requested “compensatory and punitive 

damages for use of the unconstitutional procedures.” Id. 

But notably, he had “amended [his] complaint [so as] not [to] 

request restoration of the lost credits.” Id. at 643–44. 

Despite the prisoner’s express attempt to avoid challenging 

the duration of his confinement in his complaint, the 

Edwards Court held that Heck barred his due process 

challenge to his disciplinary conviction. Id. at 646. Namely, 

because “[t]he principal procedural defect complained of by 

6 As explained in further detail below, see infra Section IV.A, earnedtime credits generally affect the length of an inmate’s sentence.
14 HEBRARD V. NOFZIGER

[the prisoner] would,” if proven, demonstrate the 

unconstitutionality of the procedures used at his disciplinary 

hearing, it would “necessarily imply the invalidity of the 

deprivation of his [earned]-time credits” in addition to the 

impropriety of his placement in isolated and segregated 

housing. Id. at 646. Thus, after Edwards, Heck applies to a 

prisoner’s due process challenge to his disciplinary 

conviction that claims the “conviction was wrongful,” even 

if he “does not seek damages directly attributable to [his] . . .

confinement.” Id. (quoting Heck, 512 U.S. at 486 n.6).

As explained in more detail below, we find that under 

this case law, it is clear from the face of Hebrard’s complaint

that his claim is Heck-barred. His claim is materially similar 

to the claim in Edwards that was found to be barred by Heck.

A. Oregon’s Earned-Time Credits Reduce Inmates’

Sentences

Before we evaluate whether Heck bars Hebrard’s claim, 

we must resolve a preliminary issue. While Hebrard does 

not argue that the loss of his earned-time credits had no effect 

on the duration of his confinement, Heck cannot apply to 

Hebrard’s claim unless the prison’s revocation of his earnedtime credits “ha[d] an effect on ‘the duration of time to be 

served.’” Nettles v. Grounds, 830 F.3d 922, 928–29, 929 n.4

(9th Cir. 2016) (en banc) (quoting Muhammad v. Close, 540 

U.S. 749, 754–55 (2004)). Thus, we must first ascertain

whether Hebrard could have used the lost earned-time 

credits to reduce his sentence.

Under Oregon law, “[earned-]time credits [] have the 

effect of reducing the sentence served.” Burns v. Newell, 507 

P.2d 414, 415 (Or. Ct. App. 1973) (emphasis added); accord 

Oregon v. Berger, 392 P.3d 792, 796 (Or. Ct. App. 2017) 

(holding that the statutory scheme that governs earned-time 
HEBRARD V. NOFZIGER 15

credits constitutes “a sentence reduction program” (citation

omitted)). Only those prisoners serving sentences amenable 

to a reduction by law are eligible to obtain these credits. 

Oregon ex rel. Engweiler v. Cook, 133 P.3d 904, 908 & n.7 

(Or. 2006). And “‘earned time’ may [not] be granted by the 

[Oregon] Department of Corrections . . . [unless] the 

sentencing court specifically orders that the defendant is 

eligible for such a reduction.” Berger, 392 P.3d at 796. In 

light of this authority, Hebrard could not have obtained his

earned-time credits unless he were legally eligible to have 

his sentence reduced.

7

 See generally Or. Admin. R. 291-

097-0240 (outlining the periodic review of an inmate’s file 

during which a prison official must certify whether the 

inmate was entitled to receive earned-time credits for good 

behavior). 

7 For this reason, Nettles v. Grounds does not require a reversal of the 

district court’s dismissal of Hebrard’s claim. In Nettles, a California 

inmate serving a life sentence with the possibility of parole sought to 

overturn a disciplinary hearing to restore the earned-time credits revoked 

as a sanction for his rule violations. 830 F.3d at 924–25, 927. We held 

that Nettles’s claim could not proceed in habeas. Id. at 925. This is 

because under California law, the restoration of Nettles’s earned-time 

credits would not have had any effect on his sentence. Id. at 934 n.12. 

Rather, his release from confinement was dependent on the discretionary 

decision of the parole board. Id. at 935. 

Nettles is a straightforward application of Heck. If a prisoner’s claim 

does not affect the length of his confinement, Heck does not apply. Cf. 

Muhammad, 540 U.S. at 754–55. In contrast, as explained above,

Hebrard could not obtain earned-time credits under Oregon law unless 

his sentence were legally amenable to a reduction. Berger, 392 P.3d at 

796. Thus, unlike the disciplinary conviction at issue in Nettles,

Hebrard’s conviction had the effect of lengthening the duration of his 

confinement. As a result, Nettles is simply not factually analogous to the 

case at bar and thus does not govern our resolution of this appeal.
16 HEBRARD V. NOFZIGER

Certainly, an Oregon state official could have made a

mistake. But “in the absence of clear evidence to the 

contrary, courts [are to] presume that [public officials] have 

properly discharged their official duties.” United States v. 

Chem. Found., 272 U.S. 1, 14–15 (1926); accord Red Top 

Mercury Mines, Inc. v. United States, 887 F.2d 198, 202–03 

(9th Cir. 1989). This presumption of regularity applies 

equally to a state official’s compliance with state law. 

Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019) (applying 

the presumption of regularity to a state prosecutor’s charging 

decisions under state law). Because Hebrard does not 

contest that the earned-time credits shortened his sentence

and given there is no record evidence to the contrary, we 

conclude, under the presumption of regularity, that Hebrard

received earned-time credits because they reduced the 

duration of his confinement.

8

 Thus satisfied that the 

revocation of Hebrard’s earned-time credits thereby

extended “the duration of time to be served,” we now can 

proceed to the heart of the Heck analysis. Muhammad, 540 

U.S. at 754–55.

8 The dissent maintains that the restoration of Hebrard’s earned-time 

credits would not necessarily reduce the duration of his confinement, but

it reaches this conclusion by relying on argumentation that Hebrard

never raised. The party presentation rule therefore bars our consideration 

of the hypothetical scenarios the dissent presents. See United States v. 

Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (‘“[I]n both civil and 

criminal cases, in the first instance and on appeal . . . , we rely on the 

parties to frame the issues for decision and assign to courts the role of 

neutral arbiter of matters the parties present.’”) (quoting Greenlaw v. 

United States, 554 U.S. 237, 243 (2008)); Smith v. Marsh, 194 F.3d 

1045, 1052 (9th Cir. 1999) (“[A]n appellate court will not consider issues 

not properly raised before the district court.”).
HEBRARD V. NOFZIGER 17

B. Hebrard’s Complaint Is Heck-Barred

As the Supreme Court has summarized, under Edwards,

a prisoner’s § 1983 claim is Heck-barred “if success in th[e] 

action would necessarily demonstrate the invalidity of . . .

[the] duration” of a prisoner’s confinement “no matter the 

relief sought.”

9

 Wilkinson v. Dotson, 544 U.S. 74, 81–82 

(2005). So long as the claim “indirectly [seeks] a judicial 

determination that necessarily implies the unlawfulness of 

the [duration of the] State’s custody,” Heck and Edwards

require his § 1983 cause of action to be dismissed—“only 

habeas corpus (or similar state) remedies” can be used to 

obtain such a ruling. Id. at 81. Thus, if Hebrard’s complaint 

makes clear that he wants to obtain a judicial determination 

that his disciplinary “conviction was wrongful,” his claim is 

barred by Heck even though he did not request “damages 

directly attributable to” the loss of his earned-time credits in 

his prayer for relief. Edwards, 520 U.S. at 646 (quoting 

Heck, 512 U.S. at 486 n.6). A plain reading of Hebrard’s

complaint reveals that his § 1983 claim seeks such a ruling.

According to Hebrard’s complaint, his desired resolution 

of this § 1983 litigation is to have his conviction for the three 

9 For this reason, Hebrard’s contention that his claim cannot be barred 

by Heck because he “chose not to challenge his loss of [earned]-time 

credits” by failing to request damages for that penalty is without merit. 

The Supreme Court expressly rejected this position in Edwards. It held 

that even though the prisoner’s “§ 1983 action [] d[id] not seek damages 

directly attributable to” his loss of earned-time credits, he was

nonetheless “subject to the limitation announced in Heck.” Edwards, 

520 U.S. at 646. The Court explained that Heck still applied because if 

the prisoner prevailed on his legal theory that his disciplinary hearing 

employed invalid procedures, it “would necessarily imply that [hi]s 

[disciplinary] conviction was wrongful” and that his earned-time credits 

should not have been revoked. Id.
18 HEBRARD V. NOFZIGER

rule violations overturned. Namely, Hebrard claims that his 

procedural due process rights were violated and that his 

disciplinary conviction was unlawful because Nofziger 

purportedly lacked any evidentiary support for finding him

guilty of the infractions. Hebrard bolsters this claim with

allegations that he was denied any opportunity to put on a 

defense to the charges levied against him. Nofziger 

allegedly refused “to call or [to] investigate [his proffered] 

witnesses,” who were “indirectly . . . or directly related to 

the misconduct and charge[d]” rule violations. And 

Nofziger allegedly did not “provide certain requested 

documents prior [to] or during [the] hearing,” let alone any 

“meaningful explanation for [the] finding of guilt.” Namely, 

Hebrard alleged he was convicted even though “the 

dispositive items of proof” were absent from the disciplinary 

record.

Because of these procedural defects, Hebrard requests

relief from “[t]he actions of Defendant Nofziger . . . [that] 

f[ound] him guilty of Racketeering, Drug Possession and 

Distribution I with no evidence to support [the] charges.” 

Put another way, Hebrard wants his disciplinary conviction

to be set aside as unlawful because the disciplinary 

proceeding failed to comport with the dictates of due 

process.10 If Hebrard were to prove that Nofziger lacked an

10 This straightforward conclusion follows from the fact that the 

allegations in Hebrard’s complaint strike at the heart of the disciplinary 

investigation and hearing itself—rather than at any particular procedural 

defects related to the imposition of specific sanctions. For this reason, 

we reject Hebrard’s argument on appeal that his complaint challenges 

only those rule violations that are unrelated to his earned-time credits. 

As the district court succinctly stated, Hebrard alleged “there was one

investigation, one disciplinary hearing, and one set of disciplinary 

convictions.” According to the plain language in Hebrard’s complaint, 
HEBRARD V. NOFZIGER 19

evidentiary basis to find him guilty of the rule violations and 

that he was wholly denied an opportunity to present a 

defense, all three of his guilty convictions would need to be 

overturned as unlawful. Edwards, 520 U.S. at 646–47 (The 

“deni[al of] the opportunity to put on a defense” constitutes 

an “obvious procedural defect[ that has led] state and federal 

courts” to set aside prison convictions.). And given the

sanctions were a collective penalty for all of Hebrard’s 

prison infractions, to reverse the convictions as unlawful

“necessarily impl[ies]” that the sanctions imposed were 

unlawful as well.11 See id. at 645–47. Thus, a favorable 

legal ruling on Hebrard’s due process claim encompasses a 

determination that the prison had no lawful basis to impose 

any sanctions. And were the prison to lack a valid basis to 

impose any sanctions, its revocation of Hebrard’s earnedtime credits—and resulting extension of his sentence, see 

each of the three convictions lacks “evidence to support the charges” due 

to the constitutionally defective procedures employed—Nofziger failed 

to provide any “requested documents” or “video evidence,” “to allow 

any testimony,” to include any “arguments . . . [or] defense[s]” in the 

final disciplinary report, or to explain the “denial of an investigation.” 

Despite the more limited request for damages, Hebrard plainly seeks a 

determination that his disciplinary convictions must be expunged in toto.

11 That a successful challenge to the entire disciplinary proceeding would 

overturn all of the sanctions imposed is confirmed by the prison’s 

disciplinary report. This report, which is judicially noticeable, see Lee 

v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (“If the documents are 

not physically attached to the complaint, they may be considered if the 

documents’ authenticity is not contested and the plaintiff’s complaint 

necessarily relies on them.”), reveals that the sanctions were applied 

collectively and that all of the rule violations were merged together. 

Thus, were a court to overturn any of the rule violations, it would also 

necessarily invalidate all of the sanctions imposed.
20 HEBRARD V. NOFZIGER

supra Section IV.A—would necessarily be deemed

unlawful.

Simply put, Hebrard’s due process claim “indirectly

[seeks] a judicial determination that necessarily implies the 

unlawfulness of the [duration of the] State’s custody.” 

Wilkinson, 544 U.S. at 81. A successful challenge to the 

validity of the procedures employed during his disciplinary 

hearing necessarily encompasses a determination that the 

prison could not validly impose any sanctions—including 

the revocation of his earned-time credits. Id.; accord 

Edwards, 520 U.S. at 646–47. As a result, because

Hebrard’s claim plainly calls into question the proper 

duration of his confinement, Hebrard is required under Heck

to proceed in habeas first before he can request damages 

under § 1983.

12

 Edwards, 520 U.S. at 646, 648; see Nettles, 

830 F.3d at 928–29. His failure to seek such habeas relief

means his suit must be dismissed as Heck-barred. 512 U.S. 

at 489–90.

C. Hebrard’s Arguments Why Heck Does Not Apply 

Lack Merit

While the Heck-bar is clear from the face of his 

complaint, Hebrard argues there are two reasons why Heck

should not apply to his case. Neither has merit.

12 Put another way, Hebrard’s outstanding disciplinary conviction, which 

legally supports the validity of the revocation of Hebrard’s earned-time 

credits, precludes this § 1983 claim because it could result in inconsistent 

judgments regarding the validity of the sanctions imposed. See Heck, 

512 U.S. at 484–46, 484 n.4. Thus, Heck requires Hebrard’s challenge 

to the legal basis for the prison’s revocation of his earned-time credits to

be resolved in habeas where his conviction can be overturned, rather than

to have his conviction indirectly challenged in a § 1983 action. Id.; 

Nettles, 830 F.3d at 928–29 (citing Muhammad, 540 U.S. at 754–55).
HEBRARD V. NOFZIGER 21

1. Peralta v. Vasquez conflicts with Edwards

Hebrard first contends that we should follow the Second 

Circuit’s analysis in Peralta v. Vasquez, 467 F.3d 98, 104 

(2d Cir. 2006). Akin to the case before us, the prisoner in 

Peralta brought a due process challenge to his prison 

disciplinary hearing, which had resulted in sanctions 

affecting both the duration and conditions of his 

confinement. Id. at 100. The Second Circuit declined to 

apply Heck to the prisoner’s § 1983 claim because the court 

concluded that the prisoner’s decision not to request the 

reinstatement of his earned-time credits in his complaint 

implied that his claim did not challenge the duration of his 

confinement. Id. at 104.

But Peralta is of no help to Hebrard because it plainly 

conflicts with Edwards. As noted above, Edwards resolved 

a materially similar claim to the one in Hebrard’s complaint.

Both Hebrard and the prisoner in Edwards had their earnedtime credits revoked and were placed in segregated housing 

for violating several prison rules. 520 U.S. at 643. And like 

Hebrard, the prisoner in Edwards alleged that “he was 

completely denied the opportunity to put on a defense 

through specifically identified witnesses who possessed 

exculpatory evidence.” Id. at 646. Moreover, neither

Hebrard nor the prisoner in Edwards requested damages for 

or the restoration of their earned-time credits. Id. at 643–44. 

In fact, the prisoner in Edwards affirmatively “amended 

[his] complaint [so as] not [to] request” relief related to the 

“lost credits.” Id. But despite the prisoner’s affirmative 

decision in Edwards not to recover for his lost earned-time 

credits, the Supreme Court nonetheless held that the 

complaint was barred by Heck. Id. at 648. 
22 HEBRARD V. NOFZIGER

Thus, contrary to the position taken by the Second 

Circuit in Peralta, 467 F.3d at 104, a prisoner’s conscious 

decision not to request relief for the loss of his earned-time 

credits does not mean his claim does not challenge the 

validity of the duration of his confinement. See Skinner v. 

U.S. Dep’t of Justice & Bureau of Prisons, 584 F.3d 1093, 

1100 (D.C. Cir. 2009) (affirming the dismissal of a challenge 

to a prison disciplinary hearing under Heck because 

“recovery for the ‘other, separate disciplinary harms’ 

[unrelated to the inmate’s sentence] depend[ed] on 

overturning the adverse determination that also led to his 

loss of [earned]-time credits[—]if [he] were to win damages 

for the former, he would necessarily have demonstrated the 

invalidity of the latter”). Rather, as the Edwards Court 

explained, a prisoner’s due process challenge “to the 

procedures” employed at his disciplinary hearing

“necessarily impl[ies] the invalidity of the deprivation of his 

[earned]-time credits”—even if he affirmatively declines to 

bring a direct challenge to “the result[ing]” revocation of his 

earned-time credits—so long as the alleged “procedural 

defect,” if proven, would demonstrate the “invalidity of the 

judgment” in his disciplinary hearing. 520 U.S. at 645–47; 

cf. Haywood v. Hathaway, 842 F.3d 1026, 1029 (7th Cir. 

2016) (holding that Heck and Edwards created “a version of 

issue preclusion (collateral estoppel), under which the 

outstanding criminal judgment or disciplinary sanction, as 

long as it stands, blocks any inconsistent civil judgment”).

That is precisely what Hebrard’s due process claim 

demands. See supra Section IV.B. He seeks a judicial 

determination that he was improperly adjudged guilty and 

thereby impermissibly sanctioned for baseless rule 

violations because of Nofziger’s unconstitutional actions: 

Nofziger’s alleged refusal to call witnesses, to present 
HEBRARD V. NOFZIGER 23

evidence of wrongdoing, to conduct an investigation, or to 

permit Hebrard to put on a defense. Because Edwards

resolved a due process challenge that is factually analogous 

to the claim in Hebrard’s complaint, it compels the result we 

reach here. Namely, although Hebrard does not seek to

recover for his lost earned-time credits, his claim is barred

by Heck because he challenges the constitutional validity of

his disciplinary conviction, which constitutes an implied 

challenge to the validity of the sanctions imposed as a result. 

Edwards, 520 U.S. at 643–46.

2. Hebrard had an effective constitutional 

remedy

Lastly, Hebrard argues that Heck should not apply 

because he supposedly has no other remedy at this time. 

This argument cannot be credited.

While a habeas challenge to the revocation of his earnedtime credits would currently be untimely, Hebrard identifies

no legal impediments at the outset that barred him from 

filing a habeas petition instead of this § 1983 claim.

13

 Thus, 

the current time-bar that prevents him from obtaining habeas 

relief does not mean he lacks an effective remedy. It simply

means he did not timely seek the proper remedy. Guerrero 

13 Namely, Hebrard could have overturned his disciplinary hearing in 

habeas, see Barrett v. Belleque, 176 P.3d 1272, 1278–79 (Or. 2008); 

Burns, 507 P.2d at 414–15, and then filed a subsequent § 1983 action to 

recover damages for the other sanctions imposed, Edwards, 520 U.S. at 

643, 645–46. Because his § 1983 claim would not accrue until he 

overturned the disciplinary hearing, the subsequent action would be 

timely. McDonough v. Smith, 139 S. Ct. 2149, 2154–55 (2019). 

Furthermore, any legal determination in the habeas proceeding would be 

“afforded issue-preclusive” effect in the § 1983 action. Gonzales v. Cal. 

Dep’t of Corr., 739 F.3d 1226, 1230 (9th Cir. 2014). Thus, Hebrard’s 

assertion that he is “left with no remedy” is not well-taken.
24 HEBRARD V. NOFZIGER

v. Gates, 442 F.3d 697, 705 (9th Cir. 2006) (“[T]hough 

habeas relief . . . may be ‘impossible as a matter of law,’ . . . 

[Hebrard] cannot now use his ‘failure timely to pursue 

habeas remedies’ as a shield against the implications of 

Heck.”).

***

The bottom line: Heck bars Hebrard’s suit. It is clear 

from the face of his complaint that his claim necessarily 

implicates the validity of the prison’s revocation of his 

earned-time credits, which revocation extended his stay in 

prison. The district court correctly applied Heck to this case

and dismissed Hebrard’s § 1983 claim.

V. CONCLUSION

For all the foregoing reasons, we conclude that 

Hebrard’s complaint was properly dismissed as barred by 

Heck. The district court’s sua sponte dismissal of his in 

forma pauperis complaint for failure to state a claim was 

authorized by the PLRA. And this mandatory dismissal was 

warranted given it is clear from the face of the complaint that 

Hebrard’s due process claim, if successful, would

necessarily imply the invalidity of the prison’s revocation of 

his earned-time credits—a claim that must proceed in 

habeas. That Hebrard has not obtained any such habeas 

relief means his § 1983 claim is Heck-barred. Accordingly, 

we affirm the district court’s dismissal of Hebrard’s § 1983 

cause of action.

AFFIRMED.
HEBRARD V. NOFZIGER 25

SUNG, Circuit Judge, dissenting:

Plaintiff Alexander Hebrard, an Oregon state prisoner, 

filed a claim under 42 U.S.C. § 1983 challenging a prison 

disciplinary action that resulted in various sanctions, 

including revocation of 27 days of earned-time credits. The 

district court sua sponte dismissed Hebrard’s § 1983 claim 

for failure to state a claim based on Heck v. Humphrey, 512 

U.S. 477 (1994). I agree with the majority that Heck is an 

affirmative defense, and that the defendant, Nofziger, bears 

the burden of proving it applies. I also agree with the 

majority that Hebrard’s § 1983 action, if successful, would 

necessarily imply the invalidity of the revocation of 

Hebrard’s earned-time credits—even though his complaint 

does not seek restoration of those credits. See Edwards v. 

Balisok, 520 U.S. 641 (1997). However, I disagree with the 

majority’s conclusion that the district court properly 

dismissed Hebrard’s claim as Heck-barred. 

“Heck applies only to administrative determinations that 

‘necessarily’ have an effect on ‘the duration of time to be 

served.’” Nettles v. Grounds, 830 F.3d 922, 929 n.4 (9th Cir. 

2016) (en banc) (quoting Muhammad v. Close, 540 U.S. 749, 

754–55 (2004) and citing Wilkerson v. Wheeler, 772 F.3d 

834, 840 (9th Cir. 2014)). Further, restoration of a prisoner’s 

earned-time credits does not, in all cases, necessarily affect 

the duration of time to be served. See, e.g., Nettles, 830 F.3d 

at 934–35 (determining that restoration of Nettles’ 

postconviction credits “would not necessarily lead to 

immediate or speedier release”).

Accordingly, the question at the heart of this case is: 

Would restoration of Hebrard’s earned-time credits 

necessarily lead to his immediate or speedier release from 

custody? 
26 HEBRARD V. NOFZIGER

On this record, we simply do not know the answer to that 

question. Under Oregon law, it is possible that Hebrard is 

receiving earned-time credits that cannot lead to his 

immediate or speedier release. And we can’t rule out that 

possibility because we don’t know what sentence or 

sentences Hebrard is serving, or what his underlying 

conviction or convictions are. Because we can’t be certain 

that restoration of Hebrard’s earned-time credits would 

necessarily affect the duration of his custody, we can’t be 

certain that his claim is Heck-barred.

Below, I first explain in more detail why, under Nettles, 

a claim that would effectively restore a prisoner’s earnedtime credits is not necessarily Heck-barred. Second, I explain 

why we can’t be certain, on this record and under Oregon 

law, that restoration of Hebrard’s earned-time credits will 

necessarily have the required effect on his duration of 

custody. Third, I explain that the district court erred in two 

ways: (1) by concluding that Hebrard’s claim is Heckbarred, and (2) by sua sponte dismissing Hebrard’s § 1983 

claim under the Prison Litigation Reform Act, 28 U.S.C. 

§ 1915(e)(2)(B), for failure to state a claim, even though it is 

not obvious from the face of the complaint that the claim is 

barred by Heck. Finally, I explain how dismissing a § 1983 

claim—without certainty that it would, if successful, 

necessarily affect the duration of confinement—is at odds 

with precedent and could have unfair consequences for 

Hebrard and other prisoners.

BACKGROUND

Hebrard challenges a prison disciplinary action that 

resulted in confiscation of $1,050 from Hebrard’s trust 

account, a $100 fine, disciplinary segregation for 120 days, 

limited visitation for a year, and retraction of 27 days of 
HEBRARD V. NOFZIGER 27

earned-time credits. He filed a handwritten, pro se § 1983 

complaint in September 2019, claiming that he was denied 

due process under the Fourteenth Amendment during the 

disciplinary proceeding.1 Hebrard’s complaint seeks 

monetary damages, but it does not seek restoration of the 

revoked earned-time credits.2

Nofziger filed an answer to Hebrard’s complaint, raising 

the affirmative defenses of qualified immunity and PLRA 

exhaustion—but Nofziger did not mention Heck. Nofziger 

also filed a motion for summary judgment—and again, 

Nofziger did not mention Heck. After Nofziger briefed the 

summary judgment motion, however, the district court 

raised Heck sua sponte and ordered supplemental briefing. 

In the supplemental briefing, Nofziger still did not provide 

any information about Hebrard’s underlying conviction(s) or 

the sentence(s) he is serving. Despite the absence of such 

information in the record, the district court concluded that 

Hebrard’s § 1983 claim is Heck-barred and exercised its 

authority under the PLRA, 28 U.S.C. § 1915(e)(2)(B), to sua 

sponte dismiss Hebrard’s complaint for failure to state a 

claim. 

1

It is undisputed that Hebrard’s § 1983 claim seeks to challenge only the 

prison disciplinary action and not Hebrard’s underlying state criminal 

conviction.

2 Even though Hebrard does not explicitly seek restoration of the earnedtime credits in his complaint, I agree with the majority that Hebrard’s 

challenge to the disciplinary action, if successful, would also invalidate 

the revocation of his earned-time credits. 
28 HEBRARD V. NOFZIGER

DISCUSSION

I

As noted above, I agree with the majority that Hebrard’s 

§ 1983 claim, if successful, would necessarily imply the 

invalidity of his disciplinary hearing and effectively restore 

his earned-time credits. See Edwards v. Balisok, 520 U.S. 

641 (1997). However, that does not necessarily mean that 

Hebrard’s § 1983 claim is Heck-barred. 

In Heck v. Humphrey, the Court held that a plaintiff 

could not bring a § 1983 action “that necessarily require[d] 

the plaintiff to prove the unlawfulness of his conviction or 

confinement,” unless the plaintiff first proved that the 

conviction or sentence was eliminated, including “by a 

federal court’s issuance of a writ of habeas corpus.” 512 U.S. 

477, 486–87 (1994). “This favorable termination rule polices 

the intersection of the two most fertile sources of federalcourt prisoner litigation—§ 1983, and the federal habeas 

corpus statute, by ensuring that a court cannot address a 

§ 1983 claim if doing so would require it to first resolve a 

claim that falls within the core of habeas corpus.” Nettles, 

830 F.3d at 928 (cleaned up). 

In Edwards, the Court held that a state prisoner’s § 1983 

claim regarding a disciplinary proceeding that necessarily 

implied the invalidity of his loss of postconviction credits 

“fell within habeas’s exclusive domain and was barred by 

the rule in Heck.” Nettles, 830 F.3d at 928 (citing Edwards, 

520 U.S. at 644, 648). But “[t]he Court later clarified, in 

Muhammad v. Close, that such challenges to disciplinary 

proceedings are barred by Heck only if the § 1983 action 

would be ‘seeking a judgment at odds with [the prisoner’s] 

conviction or with the State’s calculation of time to be 
HEBRARD V. NOFZIGER 29

served.’” Id. at 928–29 (quoting 540 U.S. at 754–55) 

(alteration in original). 

Hebrard’s § 1983 claim has no bearing on his underlying 

conviction(s) or prison sentence(s) (whatever they may 

be)—at most, his claim could restore his 27 days of earnedtime credits. Our en banc decision in Nettles addressed a 

similar claim and clarified several principles regarding the 

scope of habeas jurisdiction, § 1983, and the application of 

Heck to such claims, that are important in this case.

Like Hebrard, Nettles was a state prisoner who 

challenged a prison disciplinary action that resulted in the 

revocation of postconviction credits. 830 F.3d at 924–27. 

Unlike Hebrard, however, Nettles challenged his 

disciplinary action and sought restoration of his 

postconviction credits in a habeas petition. Id. at 927. 

Although Nettles’ claim would effectively restore his 

postconviction credits, we determined that his claim would 

not necessarily affect the duration of his custody. Id. at 934–

35. Consequently, we concluded that Nettles’ claim was not 

“within the core of habeas,” and that the district court 

properly dismissed Nettles’ habeas petition for lack of 

jurisdiction. Id. at 935. Further, we held that § 1983 is the 

“exclusive vehicle” for such claims about prison life “that 

are not within the core of habeas.” Id. at 932–33. A claim 

that may only be brought under § 1983 because it is not 

within the core of habeas should not be dismissed under 

Heck. See Wilkinson, 544 U.S. at 82–84 (reversing Heck

dismissal of prisoners’ § 1983 claims because “neither lies 

at ‘the core of habeas corpus’” (quoting Preiser v. 

Rodriguez, 411 U.S. 475, 489 (1973))). 

Nettles clarifies that a claim that would effectively 

restore postconviction credits is not within the core of 
30 HEBRARD V. NOFZIGER

habeas—and therefore, not Heck-barred—unless it would 

necessarily affect the duration of custody. See Nettles, 830 

F.3d at 929 n.4 (“Heck applies only to administrative 

determinations,” including prison disciplinary actions, “that 

‘necessarily’ have an effect on ‘the duration of time to be 

served.’” (quoting Muhammad, 540 U.S at 754–55, and 

citing Wilkerson, 772 F.3d at 840)). 

An “effect on the duration of custody” means 

“immediate or earlier release from confinement.” Id. at 935; 

see also Wilkinson, 544 U.S. at 82–84 (clarifying that Heck 

bars only claims that would result in “immediate release 

from confinement or a shorter stay in prison”). 

“Necessarily” in this context means “inevitable.” See 

Wilkinson, 544 U.S. at 82 (holding claims did not lie at “the 

core of habeas corpus” because “claims would not inevitably 

lead to release”); Skinner v. Switzer, 562 U.S. 521, 534 

(2011) (“Success in [Skinner’s] suit for DNA testing would 

not ‘necessarily imply’ the invalidity of his conviction. 

While test results might prove exculpatory, that outcome is 

hardly inevitable[.]”); Thornton v. Brown, 757 F.3d 834, 843 

(9th Cir. 2013) (“We have held that a claim does not 

necessarily imply the invalidity of a conviction or sentence 

under Heck unless its success will inevitably call into 

question the state court judgment that led to the plaintiff’s 

custody.” (quotation marks omitted)). Even claims that 

“would be likely to lead to an earlier release” or “could 

potentially affect the duration of a prisoner’s confinement” 

are not within the core of habeas. See Nettles, 830 F.3d at 

933–34 (quotation marks omitted) (emphasis in original) 

(overruling Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 

1989), and Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 

2004)).
HEBRARD V. NOFZIGER 31

Nettles also makes clear that in some circumstances, a 

claim that would restore a prisoner’s earned-time credits 

would not necessarily affect the duration of their custody.

Restoration of a prisoner’s earned-time credits might lead to 

a prisoner’s immediate or earlier release from custody—but 

it does not necessarily do so in every case. For example, in 

Nettles, we determined that restoration of his postconviction 

credits would not necessarily have the required effect 

because Nettles was serving an indeterminate sentence, 

expungement of his disciplinary infraction would not 

necessarily lead to a grant of parole, and the panel would not 

calculate a release date that could be affected by the 

postconviction credits. 830 F.3d at 934–35. 

Thus, when a prisoner’s claim challenges a disciplinary 

action that revoked postconviction credits, we must 

determine on a case-by-case basis whether that claim is 

within the core of habeas. More specifically, we must 

determine whether, considering the prisoner’s sentence(s) 

and state law, restoration of the prisoner’s credits would 

inevitably lead to the prisoner’s immediate or speedier 

release. “If the invalidity of the disciplinary proceedings, and 

therefore the restoration of [postconviction] credits, would 

not necessarily affect the length of time to be served, then 

the claim falls outside the core of habeas” and the claim must 

be “brought in § 1983.” Nettles, 830 F.3d at 929. 

Importantly, we have reversed Heck dismissals when we 

couldn’t tell from the record whether restoration of a 

prisoner’s postconviction credits would necessarily affect 

the length of time to be served. See, e.g., Delgado v. 

Gonzalez, 686 F. App’x 434, 435 (9th Cir. 2017) (citing 

Nettles and rejecting application of the Heck bar because 

“[o]n this record, we do not know whether Delgado’s rules 

violation and loss of sixty days of good-time credit would 
32 HEBRARD V. NOFZIGER

necessarily affect the length of time he must serve” 

(emphasis in original)); Brownlee v. Murphy, 231 F. App’x 

642, 644 (9th Cir. 2007) (“If, under the applicable scheme of 

state law and regulation, this revocation [of good-time 

credits] directly and necessarily increased the duration of 

Brownlee’s confinement, . . . the district court’s dismissal 

[under Heck] would be proper. However, we cannot be sure 

on the record before us of the effect of any such revocation 

under the applicable legal regime.”). As explained below, we 

should reverse the dismissal of Hebrard’s claim for the same 

reason.

II

We can’t tell from the record whether restoration of 

Hebrard’s earned-time credits would necessarily affect the 

length of time he must serve. Therefore, we can’t tell 

whether his claim was properly dismissed under Heck. 

Hebrard’s pro se, handwritten complaint indicates that 

earned-time credits were deducted as a result of the 

challenged prison disciplinary sanction. But the complaint 

contains no other information about what Hebrard’s 

underlying conviction(s) is/are, or the type or length of 

sentence(s) he is serving. That critical information is not 

anywhere else in the record—as Nofziger conceded multiple 

times at oral argument. Oral Arg. at 17:00, 22:32, 23:54, 

28:30. Even after the district court ordered supplemental 

briefing on the application of Heck, Nofziger did not provide 

the factual and state law information needed to determine 

whether restoration of Hebrard’s earned-time credits would 

necessarily lead to his immediate or speedier release.

The majority assumes that restoration of Hebrard’s 

earned-time credits will necessarily affect the duration of his 

custody because, under Oregon law, prisons cannot award 
HEBRARD V. NOFZIGER 33

earned-time credits unless a prisoner has an earned-time 

credit-eligible sentence. The majority ignores, however, at 

least two circumstances under which it is possible for 

Oregon prisoners to lawfully receive earned-time credits that 

can’t have any effect on their release date:3

3

I disagree with the majority’s assertion that this dissent violates the 

party presentation rule by presenting hypothetical scenarios that Hebrard 

never identified. Maj. Op. 16 n.8. The majority and I agree it is 

Nofziger’s burden to prove that the revocation of Hebrard’s earned-time 

credits necessarily affected his duration of custody. The hypothetical 

scenarios that the majority declines to consider merely show that 

Nofziger has not met that burden.

Additionally, all the issues addressed in this dissent were presented 

by the parties. Hebrard’s opening brief states that the issues presented 

include whether the district court erred “when it sua sponte dismissed 

Mr. Hebrard’s due process claim as barred by Heck even though his 

claim does not necessarily implicate the fact or duration of his 

confinement[.]” Dkt. 10 at 5 (Issue Presented #2). Hebrard also argues 

that the district court erred because Nofziger bears the burden of proving 

Heck applies (Dkt. 10 at 13–14) and the Heck bar is not obvious on the 

face of the complaint (Dkt. 10 at 21–22). Further, Hebrard argues that 

“ambiguity over whether an action necessarily implicates the fact or 

duration of the inmate’s sentence precludes dismissal.” Dkt. 10 at 24–25 

(citing and discussing Brownlee v. Murphy, 231 F. App’x 642, 644 (9th 

Cir. 2007) and Delgado v. Gonzales, 686 F. App’x 434, 434–35 (9th Cir. 

2017)). 

Moreover, the majority recognizes that to resolve the issues 

presented, we “must resolve [the] preliminary issue” of whether the loss 

of earned-time credits had an effect on the duration of Hebard’s 

confinement “because Heck cannot apply to Hebrard’s claim unless the 

prison’s revocation of his earned-time credits ‘ha[d] an effect on the 

duration of time to be served.’” Maj. Op. 14 (quoting Nettles, 830 F.3d 

at 928–29 & n.4 (internal quotation marks omitted)). I dissent because I 

disagree with the majority’s resolution of this preliminary issue, but I 

agree that we must resolve it. And, to do so, both the majority and this 

dissent consider state law and arguments that were not explicitly 
34 HEBRARD V. NOFZIGER

(1) Hebrard could be in the exact same position as 

Nettles. In Oregon, a prisoner serving an indeterminate life 

sentence may still receive earned-time credits, but the loss or 

restoration of those credits will not necessarily affect the 

prisoner’s duration of custody because, as in Nettles, any 

release date is ultimately set at the discretion of the parole 

board. See State ex rel. Engweiler v. Cook (“Engweiler IV”), 

133 P.3d 904 (Or. 2006); Engweiler v. Persson (“Engweiler 

VIII”), 316 P.3d 264 (Or. 2013). In Engweiler IV, the 

Oregon Supreme Court held that an Oregon state prisoner 

serving an indeterminate life sentence for a crime committed 

on or after November 1, 1989, is eligible to receive earnedtime credits. See Engweiler VIII, 316 P.3d at 270 

(summarizing the holding of Engweiler IV). Then, in 

Engweiler VIII, the Court held that those earned-time credits 

do not necessarily determine a prisoner’s release date. 

Engweiler argued that he was entitled to be immediately 

released because application of his earned-time credits to his 

initial board-estimated release date meant that he should 

have already been released from custody. Id. at 273. The 

Court, however, rejected that argument and held that even 

presented by the parties. Compare Maj. Op. 14–16 (discussing and 

relying on Burns v. Newell, 507 P.2d 414, 415 (Or. Ct. App. 1973); 

Oregon v. Berger, 392 P.3d 792, 796 (Or. Ct. App. 2017); and Oregon 

ex rel. Engweiler v. Cook, 133 P.3d 904, 908 & n.7 (Or. 2006)), with 

Dkt. 21 (Nofziger’s Answering Brief). Yet, the majority asserts that only 

this dissent violates the party presentation rule. Either both the majority 

and the dissent are violating the party presentation rule, or neither of us 

are. In my view, neither of us are. Where, as here, the issue has been 

presented by the parties, our analysis of that issue need “not perfectly 

track the arguments [a party] presents in her briefing.” Machowski v. 333 

N. Placentia Prop., LLC, 38 F.4th 837, 843 (9th Cir. 2022); see also 

United States v. Sineneng-Smith, 140 S. Ct. 1575, 1581 (2020) (“[A] 

court is not hidebound by the precise arguments of counsel[.]”).
HEBRARD V. NOFZIGER 35

when a prisoner could be released based on earned-time 

credits applied to their estimated release date, the Oregon 

parole board has the discretion to keep the prisoner in 

custody and schedule their actual release for a future date. 

Id. at 274–75. That is, the prisoner’s actual release date (if 

any) would ultimately be determined by the parole board’s 

discretionary review process, which “exists to ensure that 

offenders are not released to parole unless and until the board 

is satisfied that their release is consistent with community 

safety.” Id. 

In this case, Nofziger conceded at oral argument that we 

have no way of knowing on this record that Hebrard is not

serving an indeterminate sentence. This means it is possible 

that Hebrard (like Engweiler and Nettles) is serving an 

indeterminate sentence that is eligible for earned-time 

credits but a parole board retains discretion to decide when 

to release him (if ever). If so, then restoration of Hebrard’s 

earned-time credits would not necessarily lead to his 

immediate or earlier release, and his claim is not Heckbarred.

(2) Under Oregon law, a prisoner can be serving two (or 

more) sentences—one that is eligible for earned-time credits, 

and one that is not. Samson v. Brown, 486 P.3d 59, 64 (Or. 

Ct. App. 2021) (interpreting ORS 137.635, which makes 

sentences for certain crimes ineligible for earned-time 

credits); Woods v. Hendricks, 537 P.3d 974, 977–79 (Or. Ct. 

App. 2023) (interpreting ORS 137.700, which also makes 

certain sentences ineligible for earned-time credits). A 

prisoner in this circumstance must be awarded earned-time 

credits on the eligible sentence—even though the earnedtime credits won’t have any effect on the prisoner’s 

ineligible sentence. Samson, 486 P.3d at 64 (“If a person is 

serving prison time on two sentences simultaneously, one of 
36 HEBRARD V. NOFZIGER

which is subject to ORS 137.635 and one of which is not, 

then the earned-time prohibition in ORS 137.635 applies at 

all times to the sentence that is subject to ORS 137.635, but 

it never applies to the sentence that is not subject to ORS 

137.635.”); Woods, 537 P.3d at 977–79 (agreeing with 

Samson and reaching same conclusion regarding ORS 

137.700). 

If a prisoner is serving credit-eligible and -ineligible 

sentences concurrently and the credit-eligible sentence is 

shorter than the ineligible one, then the prison is legally 

required to award the prisoner earned-time credits on the 

shorter sentence, but those earned-time credits would have 

no effect on the prisoner’s release date. Because revocation 

of those credits would have no effect on the length of time 

to be served, a § 1983 claim that would effectively restore 

those credits would not lie within the core of habeas and 

would not be Heck-barred.

In Oregon, it is reasonably possible that prisoners are 

serving such concurrent sentences. For example, a prisoner 

could receive a 60-month sentence for first degree burglary 

(ineligible for credits under ORS 137.635 if the prisoner is a 

repeat offender with a qualifying previous conviction), to be 

served concurrently with a 40-month sentence for attempted 

second-degree assault (eligible for credits).4 For another 

example, a prisoner could receive a 70-month sentence for 

assault in the second degree (ineligible for credits under 

4 This example is close to the circumstances presented in Samson: 

Samson received a credit-ineligible 60-month sentence for first degree 

burglary, to be served concurrently with a credit-eligible 40-month 

sentence for attempted second degree robbery and a credit-eligible 40-

month sentence for attempted second degree assault. 486 P.3d at 60.
HEBRARD V. NOFZIGER 37

ORS 137.700), to be served concurrently with a 24-month 

sentence for a lesser offense that is eligible for credits.5

We can’t rule out the real possibility that Hebrard is 

serving such concurrent sentences because the record 

contains no information about Hebrard’s convictions or 

sentences. Consequently, we can’t be certain that Hebrard’s 

claim is Heck-barred. 

III

The district court erred in two ways. 

First, the district court erred by concluding that 

Hebrard’s § 1983 claim is barred under Heck. For the 

reasons explained above, the district court could not know, 

on this record, that restoration of Hebrard’s earned-time 

credits would necessarily lead to his immediate or speedier 

release. If not, his claim does not sound in the core of habeas, 

and it is not Heck-barred.

Second, the district court erred by sua sponte dismissing 

Hebrard’s complaint for “failure to state a claim” pursuant 

to 28 U.S.C. § 1915(e)(2)(B)(ii). Although Nofziger did not 

raise Heck as an affirmative defense, the district court 

correctly noted that § 1915(e)(2)(B)(ii) obligates it to 

dismiss a case “at any time if the court determines” that the 

action “fails to state a claim on which relief may be granted.” 

5 Massachusetts has a similar sentencing regime, and there, the courts 

have considered cases in which a prisoner’s postconviction credits had 

no effect on the duration of custody. See, e.g., Reynolds v. 

Superintendent, Old Colony Corr. Ctr., 809 N.E.2d 1051, 1053 (Mass. 

2004) (“Whenever, as here, a sentence on a charge that does not qualify 

for good time is being served concurrently with a sentence on a separate 

charge that does qualify, it may turn out that good time is of no practical 

benefit to the prisoner.”); Rampino v. Superintendent, Old Colony Corr. 

Ctr., 814 N.E.2d 1094, 1095–96 (Mass. 2004) (same).
38 HEBRARD V. NOFZIGER

I agree with the majority that, because the district court 

dismissed Hebrard’s complaint for failure to state a claim, 

we should “affirm the district court’s dismissal of his claim 

only if the Heck bar is obvious from the face of his 

complaint.” However, I disagree with the majority’s 

conclusion that the Heck bar is obvious from the face of 

Hebrard’s complaint.6

In Washington v. Los Angeles County Sheriff’s 

Department, we held that “Heck dismissals” do not 

“categorically count as dismissals for failure to state a 

claim.” 833 F.3d 1048, 1055 (9th Cir. 2016). Rather, a Heck

dismissal “may constitute a PLRA strike for failure to state 

a claim when Heck’s bar to relief is obvious from the face of 

the complaint.” Id. 

Here, the Heck bar was not obvious from the face of 

Hebrard’s complaint. As explained above, the only pertinent 

fact we know from Hebrard’s complaint is that the 

challenged disciplinary action resulted in multiple sanctions, 

including revocation of 27 earned-time credits. That fact 

alone is simply not enough to establish that restoration of 

those credits would necessarily lead to Hebrard’s immediate 

or speedier release—and if they would not, then the Heck bar 

does not apply. 

Moreover, it was Nofziger’s burden to prove that the 

Heck affirmative defense applies—Hebrard was not required 

6 Hebrard argues that Nofziger waived the Heck affirmative defense, but 

the majority concludes that Nofziger merely forfeited it. I do not need to 

resolve that issue because, even assuming that Nofziger merely forfeited 

the Heck defense and the district court was obliged under 

§ 1915(e)(2)(B)(ii) to consider sua sponte whether Hebrard’s complaint 

failed to state a claim under Heck, I conclude that the district court erred 

in concluding that the Heck bar is obvious on the face of the complaint. 
HEBRARD V. NOFZIGER 39

to plead enough facts in his complaint to show that Heck 

does not apply. The majority and I agree that Heck is an 

affirmative defense. Therefore, compliance with Heck is 

“not a pleading requirement.” Washington, 833 F.3d at 1056. 

Even under the PLRA, prisoners are not required “to 

specially plead” around affirmative defenses in their 

complaints. Jones v. Bock, 549 U.S. 199, 216 (2007); see 

also U.S. Commodity Futures Trading Comm’n v. Monex 

Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) (“Rule 8 does 

not require plaintiffs to plead around affirmative defenses.” 

(citing Jones, 549 U.S. at 216)). 

Because it is not obvious from the face of Hebrard’s 

complaint that his claim is Heck-barred, and Heck 

compliance is not a pleading requirement, the district court 

erred in concluding that Hebrard “failed to state a claim” 

based on Heck. Further, because Hebrard did not fail to state 

a claim, the district court erred in concluding that it was 

obliged to dismiss his claim under 28 U.S.C. 

§ 1915(e)(2)(B)(ii). 

IV

We don’t know whether Hebrard’s claim is actually 

Heck-barred. But even assuming that Nofziger could have 

met his burden to prove that Heck applies (and simply 

neglected to do so), I fear that the majority’s decision will 

have unintended consequences for future cases. 

In effect, the majority’s decision sets a double-standard: 

If a prisoner challenges a disciplinary action that revoked 

some postconviction credits in a § 1983 complaint, the 

defendant may get that complaint dismissed as Heck-barred 

(or the court may dismiss sua sponte)—even if the defendant 

fails to provide the court with any additional information. 

But if the prisoner challenges the same disciplinary action in 
40 HEBRARD V. NOFZIGER

a habeas petition, the prisoner will have to prove not only 

that their claim would effectively restore the credits, but also 

that restoration of those credits would inevitably lead to their 

immediate or earlier release. To meet that burden, the 

prisoner would have to provide information about their 

convictions, sentences, and the operation of state law—or 

else their habeas petition will be dismissed for lack of 

jurisdiction. 

The majority’s decision also effectively turns the Heck 

affirmative defense into a pleading requirement for prisoners 

proceeding in forma pauperis under the PLRA, at least in 

cases that involve postconviction credits. Unless the prisoner 

makes clear on the face of the complaint that restoration of 

the prisoner’s credits would not necessarily lead to their 

immediate or earlier release, then, under the precedent set by 

the majority’s opinion, the district court will be required

under § 1915(e)(2)(B)(ii) to sua sponte dismiss the 

complaint for failure to state a claim. 

And what if Hebrard’s claim is not actually Heck-barred 

because restoring his earned-time credits would not 

necessarily affect the duration of his custody? If so, then the 

dismissal of his complaint as Heck-barred was not only 

incorrect but unfair, for several reasons.

Hebrard was proceeding in forma pauperis under the 

PLRA, 28 U.S.C. § 1915. Under § 1915(g), a prisoner who 

proceeds in forma pauperis risks incurring a “strike” if their 

complaint is dismissed for failure to state a claim, and a 

prisoner who incurs three strikes is barred from proceeding 

in forma pauperis in any future claims. Id.; Washington, 833 

F.3d at 1054. Because the district court dismissed Hebrard’s 

complaint for failure to state a claim, he likely incurred a 
HEBRARD V. NOFZIGER 41

strike. If Hebrard’s complaint is not actually Heck-barred, 

then that strike is unwarranted.

Additionally, if Hebrard’s complaint is not actually 

Heck-barred, he has no reasonable option for correcting the 

error and re-filing his § 1983 claim. In theory, he could 

remedy the error by filing a habeas petition that satisfies all 

of AEDPA’s exhaustion and procedural requirements, 

proving that his claim is not within the core of habeas, 

getting his own petition dismissed, and then re-filing his 

§ 1983 complaint. This option, however, effectively shifts 

the Heck burden of proof from the defendant to the prisoner. 

And forcing a prisoner (especially one proceeding in forma 

pauperis) to run this gauntlet to remedy an incorrect Heck

dismissal is unduly burdensome.

In any event, this option is not actually available to 

Hebrard because, as the majority notes, he is now timebarred from filing a habeas petition. And if Hebrard correctly 

filed his claim under § 1983, then he is not to blame for 

missing that deadline. In Nettles, we noted that AEDPA and 

the PLRA impose different requirements, and we predicted 

that the “rule that habeas is available only for actions in the 

‘core of habeas’” would “give needed clarity to state 

prisoners” about whether they should bring their claim in 

habeas or under § 1983. 830 F.3d at 932 n.8 & 934. If 

Hebrard correctly applied the rule that habeas is available 

only for actions in the core of habeas, then he correctly 

followed the PLRA’s requirements instead of AEDPA’s. 

* * * * *

On this record, we do not have the information we need 

to be certain that Hebrard’s claim is within the core of habeas 

and properly dismissed as Heck-barred. Because the record 

does not include that essential information, the district court 
42 HEBRARD V. NOFZIGER

erred in (1) determining that the Heck bars Hebrard’s claim, 

and (2) dismissing his complaint for failure to state a claim. 

Hebrard was not required to plead around the Heck

affirmative defense. Moreover, Nofziger forfeited (and 

possibly waived) the Heck affirmative defense and failed to 

meet his burden to prove that Heck applies despite having 

multiple opportunities to do so. For these reasons, I would 

reverse the district court’s dismissal of Hebrard’s § 1983 

claim as barred by Heck, and I respectfully dissent.