Nelson v. Vilsack

¶1Iowa inmate Donald Nelson (Nelson) appeals the district court’s1 preservice dismissal of his 42 U.S.C. § 1983 action. Having carefully reviewed the record de novo, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir.2000) (per curiam), we conclude the district court properly dismissed the complaint, see 28 U.S.C. § 2254(b)(1)(A); Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Preiser v. Rodriguez, 411 U.S. 475, 499-500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). However, we believe the dismissal should be without prejudice. See Sheldon v. Hundley, 83 F.3d 231, 234 (8th Cir.1996). Accordingly, we modify the district court’s judgment to be without prejudice, and affirm. See 8th Cir. R. 47B. We also deny Nelson’s request for appointment of appellate counsel.