[DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                No. 04-15280                    MAY 2, 2006
                            Non-Argument Calendar             THOMAS K. KAHN
                                                                  CLERK
                          ________________________

                   D. C. Docket No. 04-00349-CV-OC-10-GRJ

ALBERT SHAW NELSON,


                                                          Plaintiff-Appellant,

                                     versus

C. JIMENEZ,
Discipline Hearing Officer,

                                                          Defendant-Appellee.


                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                                  (May 2, 2006)

Before ANDERSON, DUBINA and HULL, Circuit Judges.

PER CURIAM:

      Federal prisoner Albert Shaw Nelson, pro se, appeals the dismissal, on
frivolity review, of his complaint filed pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 

, 395-397, 

,

2004-05, 

(1971), for failure to state a claim. Nelson sued Jimenez,

a federal disciplinary hearing officer, alleging that Jimenez violated his Fifth

Amendment due process rights during a disciplinary proceeding that upheld

charges against Nelson for possession of marijuana and abuse of the mail system.

He argues that his case is cognizable pursuant to United States Supreme Court law

because his claim did not challenge the fact of his conviction or duration of his

sentence, it fell outside the core of habeas corpus, and success would not

necessarily spell immediate or speedier release.

      We review a district court’s sua sponte dismissal of a claim as frivolous

under 28 U.S.C. § 1915 for abuse of discretion. Bilal v. Driver, 

,

1349 (11th Cir. 2001). Pursuant to 28 U.S.C § 1915, a district court may dismiss a

case filed in forma pauperis at any time if it is frivolous or malicious, fails to state

a claim upon which relief may be granted, or seeks monetary relief against a

defendant who is immune from such relief. 28 U.S.C § 1915(e)(2)(B)(i-iii). “A

claim is frivolous if it is without arguable merit either in law or fact.” 

.

      In Bivens, the Supreme Court held that injured plaintiffs can bring a cause of



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action for damages against federal officers based on violations of the plaintiffs’

constitutional rights. 

, 91 S.Ct. at 2004-05. Bivens

involved alleged violations of the Fourth Amendment, but the Supreme Court has

also allowed Bivens actions for violations of the Due Process Clause of the Fifth

Amendment. Davis v. Passman, 

, 233-249, 

, 2271-

2279, 

(1979).

      In Heck v. Humphrey, 

, 

, 

(1994), the Supreme Court held that “to recover damages for an allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a 42 U.S.C. §

1983 plaintiff must prove that the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal court’s

issuance of a writ of habeas 

, 114 S.Ct. at 2372. If

this type of action is brought prior to the invalidation of the challenged conviction

or sentence, it must be dismissed as premature. 

114 S.Ct. at 2372.

Thus, “the district court must consider whether a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless the plaintiff can demonstrate that the



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conviction or sentence has already been invalidated.” 

held that although Heck dealt with a state prisoner’s § 1983 action,

the Heck rule applies with equal force in a Bivens action filed by a federal

prisoner. Abella v. Rubino, 

, 1065 (11th Cir. 1995). The Supreme

Court has applied the Heck analysis to claims made by prisoners challenging

prison disciplinary actions, see Edwards v. Balisok, 

, 643-649, 

, 1586-89, 

(1997); however, Heck is not categorically

applicable to all suits challenging prison disciplinary actions. Muhammad v.

Close, 

, 754, 

, 1306 (2004).

      In Muhammad, a prisoner filed a § 1983 action against a prison official,

alleging that the official had charged him with threatening behavior and subjected

him to mandatory prehearing lockup in retaliation for prior lawsuits and grievance

proceedings the prisoner had filed against the prison official. 

. The Sixth Circuit upheld the dismissal of the suit, finding the action

barred by Heck. 

. The Supreme Court reversed, holding

that because the suit did not necessarily affect the computation of “good time”

credits, and the magistrate expressly found no good-time credits were affected by

the actions challenged in the law suit, “[h]is § 1983 suit challenging this action

could not therefore be construed as seeking a judgment at odds with his conviction



                                           4
or with the State’s calculation of time to be served in accordance with the

underlying sentence.” 

. Therefore, the Supreme

Court found that no claim upon which habeas relief could have been granted was

raised, “with the consequence that Heck’s favorable termination requirement was

inapplicable.” 

.

      Because Nelson’s complaint did not seek to challenge the validity of his

underlying conviction, and did not seek to affect the time he would serve related to

that conviction, the district court abused its discretion in dismissing the complaint

due to Nelson’s failure to show that the disciplinary proceedings had been rendered

invalid.

      VACATED AND REMANDED




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