OpenJurist

43 F3d 1468 Shepard v. E Freeman W

43 F.3d 1468

Alexander Hewatt SHEPARD, Plaintiff Appellant,
v.
Franklin E. FREEMAN, Jr.; Hazel W. Keith, Defendants Appellees.

No. 94-6803.

United States Court of Appeals, Fourth Circuit.

Dec. 16, 1994.
Submitted: November 17, 1994.
Decided: December 16, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (CA-94-55)

Alexander Hewatt Shepard, Appellant Pro Se.

E.D.N.C.

AFFIRMED AS MODIFIED.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Appellant appeals from the district court's order denying relief on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Because a judgment in Appellant's favor on his claim for injunctive relief would affect the duration of his confinement, his claim is not cognizable under Sec. 1983. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Todd v. Baskerville, 712 F.2d 70, 72-73 (4th Cir.1983). A Sec. 1983 claim that calls into question the validity or duration of confinement, even if not seeking habeas relief, is subject to the exhaustion requirement of 28 U.S.C. Sec. 2254(b) (1988). Id. To the extent that a judgment in Appellant's favor on his claim for compensatory and punitive damages would call into question the duration of his confinement, he cannot seek relief under Sec. 1983 before showing that his imprisonment has been invalidated either in state court or through federal habeas relief. See Heck v. Humphrey, 62 U.S.L.W. 4594, 4597 (U.S.1994).

2

For these reasons we grant Appellant leave to proceed in forma pauperis on appeal and affirm the judgment of the district court as modified to reflect that Appellant's complaint is dismissed without prejudice so Appellant may exhaust his state court remedies. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED AS MODIFIED