Alexander Hebrard v. Jeremy Nofziger

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXANDER THOMAS No. 22-35327

HEBRARD,

D.C. No.

Plaintiff-Appellant, 6:19-cv-01498-

YY

v.

JEREMY M. NOFZIGER; OPINION

BRANDON KELLY; JASON

BROWN; C. GOVE,

Defendants-Appellees.

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 earned-

time 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 earned-

time 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, earned-

time 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 earned-

time 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 earned-

time 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 earned-

time 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 earned-

time 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 earned-

time 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 Heck-

barred, 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 earned-

time 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 federal-

court 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 earned-

time 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 earned-

time 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 Heck-

barred.

(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 earned-

time 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 time-

barred 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.