Dog Essence Saladin Amin ("Amin") is a Virginia inmate who was granted parole by the Virginia Parole Board in February 1994. Less than two months later but prior to his release Amin tested positive for drug use. The Parole Board subsequently made a decision to "not grant" parole to Amin. Amin brings this action pursuant to 42 U.S.C. Sec. 1983 alleging that his constitutional rights were violated by the drug testing procedure used at James River Correctional Center where he is incarcerated.

Presently before Court are several motions: (1) a motion by plaintiff for production of documents and a motion in response by defendants for a protective order; (2) a motion for summary judgment by defendants; (3) a motion by plaintiff for perjury sanctions against one defendant; and (4) a motion by plaintiff for extension of time to file his own summary judgment motion.

For the reasons set forth below Court now believes this action is barred by Heck v. Humphrey 129 L. Ed. 2d 383 114 S. Ct. 2364 (1994) unless plaintiff can demonstrate by evidence that his institutional conviction has been invalidated; plaintiff will be given thirty days to demonstrate that it has been.

I. Factual and Procedural Background

A detailed summary of the factual background to this case is set forth in Court's Opinion and Order of January 19 1996 (docket entry #44) and it will not be repeated in full here. In brief the plaintiff an inmate at James River Correctional Center ("James River") challenges the constitutionality of the drug testing procedure and subsequent administrative hearing which led to the imposition of an institutional infraction in April 1994. This finding Amin avers led the Virginia Parole Board to reverse an earlier decision that it had made to grant him parole.

On June 17 1994 plaintiff filed this action alleging that the drug tests conducted at James River and the consequent finding that he had tested positive were constitutionally defective. He seeks damages and injunctive relief. *fn1 In June 1995 while this action was pending plaintiff filed a petition for writ of habeas corpus in state court alleging that the Parole Board had failed to grant him a hearing in the proper quarter of calendar year 1995 pursuant to Va. Code Ann. Sec. 53.1-154 (Michie 1994). On September 20 1995 the Supreme Court of Virginia denied the writ. On November 2 1995 plaintiff filed a petition for writ of habeas corpus in this Court pursuant to 28 U.S.C. Sec.2254 alleging the ground set forth in his state habeas petition and the additional ground that the Parole Board had violated its own policies and procedures in the rescission hearing in preventing Amin from defending himself against the infraction (the positive drug test) lodged against him. Plaintiff also moved this Court for leave to "proceed with a combined 42 U.S.C. Sec.1983 action...and 28 U.S.C. Sec. 2254 action." In the meantime in August and October 1995 all remaining defendants moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. *fn2 On January 19 1996 Court denied plaintiff's motion to consolidate his habeas petition with this Sec. 1983 action. The Court also granted in part and denied in part the defendants' motion to dismiss. Court held that the challenge to the drug testing procedure and administrative hearing was proper under Sec. 1983 and was not as defendants contended essentially an action in habeas.

Following the issuance of the January 19 order defendants failed to timely file their answer within 10 days as Federal Rule of Civil Procedure 12(a)(4)(A) requires. On February 2 1996 plaintiff moved for a default judgment. On February 7 1996 defendants filed a motion for enlargement of time in which to file their answer citing excusable neglect by their Counsel. On February 22 1996 Court granted defendants' motion for enlargement of time and denied plaintiff's motion for a default judgment. Plaintiff also made an alternative motion to strike defendants' answer; that motion was also denied in the February 22 order.

On February 16 1996 plaintiff moved for production of documents. Defendants responded on March 6 1996 by moving for a protective order. On that same date all defendants moved for summary judgment renewing their argument that plaintiff's action lies in habeas and alternatively urging that defendants are entitled to the defense of qualified immunity. Plaintiff was properly served notice pursuant to Roseboro v. Garrison 528 F.2d 309 (4th Cir.1975). Also on March 6 plaintiff filed a motion for extension of time to file his own summary judgment motion contending that he could not do so without the documents which he seeks through discovery. On April 19 1996 plaintiff responded to defendants' summary judgment motion. On May 1 1996 plaintiff moved for perjury sanctions against defendant Leabough based on a statement in the affidavit she submitted with her motion for summary judgment.

II. Discussion

Defendants renew their argument also made in the motion to dismiss that Amin's claim properly lies in habeas. Court previously rejected this argument holding that a finding that the drug testing procedure used in Amin's case was constitutionally infirm would not "necessarily imply" that his continued incarceration is invalid because the decision to grant parole is discretionary. See Opinion and Order of January 19 1996 at 5-6. New information submitted along with the motion for summary judgment requires Court to reconsider its earlier conclusion.

Specifically defendants now tell Court for the first time that Amin lost 30 days good-time credits as a result of the disciplinary conviction that resulted from the failed drug test. *fn3 Amin does not contest this assertion. Thus defendants contend in the event Court finds the drug testing procedure and subsequent hearing process as applied to Amin to be constitutionally deficient it necessarily follows that the conviction will be expunged and the good-time credits restored. As a result defendants urge Amin's claim necessarily affects the duration of his confinement and thus may only be asserted in habeas. (Def. Br. on Mot. for Summary Judgment at 10; Ex. IV P 10 & Enclosure A).

Undeniably any prisoner seeking restoration of good-time credits must proceed in habeas because such a case at its core challenges the length or duration of his confinement. Preiser v. Rodriguez 411 U.S. 475 487-490 93 S. Ct. 1827 1835-1837 36 L. Ed. 2d 439 (1973). Some claims however which challenge prison disciplinary procedures do not always lie in habeas because they challenge only the constitutionality of the procedures themselves and do not necessarily implicate good-time credits. Wolff v. McDonnell 418 U.S. 539 554 94 S. Ct. 2963 2974 41 L. Ed. 2d 935 (1974).

In Heck v. Humphrey 129 L. Ed. 2d 383 114 S. Ct. 2364 (1994) the Supreme Court extended the reach of Preiser by holding that when a state prisoner seeks damages in a Sec. 1983 suit the "district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." If so then the civil rights action under Sec. 1983 must be dismissed. 114 S. Ct. at 2372. Heck did not engraft a state exhaustion requirement onto Sec. 1983 but rather concluded that there is no cause of action at all under Sec. 1983 unless the prisoner has proved that his conviction or sentence has been reversed expunged invalidated or impugned by a writ of habeas corpus. Id. at 2373. Although Heck involved a case of unlawful prosecution and the precise language of its holding might indicate at first blush that it applies only to a conviction in a court of law and not an internal prison disciplinary hearing close reading of opinion indicates that its reach is far broader. Indeed Heck discusses at some length whether the question it reached had already been answered in Wolff which it will be recalled dealt with a prison disciplinary procedure. Court noted that Wolff involved a challenge to the procedures used by state prison officials to deprive prisoners of good-time credits...Court [in Wolff] said after holding the claim for good-time credits to be foreclosed by Preiser that the damages claim was nonetheless properly before the District Court and required determination of the validity of the procedures employed for imposing sanctions...[Heck] contends that this language authorized the plaintiffs in Wolff to recover damages measured by the actual loss of good time. We think not. In light of the earlier language characterizing the claim as one of 'damages for the deprivation of civil rights' rather than damages for the deprivation of good-time credits we think this passage recognized a Sec. 1983 claim for using the wrong procedures not for reaching the wrong result (i.e. denying good-time credits). Nor is there any indication in the opinion or any reason to believe that using the wrong procedures necessarily vitiated the denial of good-time credits. Thus the claim at issue in Wolff did not call into question the lawfulness of the plaintiff's continuing confinement.

Id. at 2370 (citations and quotation marks omitted) (emphasis in original). The most logical reading of this passage is that cases which do call into question the lawfulness of a prisoner's continuing confinement are barred by Heck -- whether or not the judgment so affecting the prisoner's confinement was the result of a court judgment or an internal prison disciplinary procedure. While the Fourth Circuit has not yet encountered the question other courts of appeals have held or assumed that Heck applies to administrative proceedings such as that in the instant case. See Black v. Coughlin 76 F.3d 72 75 (2^nd Cir.1996) ("we see no reason why Heck which dealt with constitutional challenges to a criminal conviction is not also controlling with respect to due process challenges to prison disciplinary hearings"); Miller v. Indiana Dep't of Corrections 75 F.3d 330 331 (7th Cir.1996) (Heck applies equally to administrative rulings; "irrelevant whether challenged confinement is pursuant to a judgment imposing a sentence or an administrative refusal to shorten sentence by awarding good-time credits"); Best v. Kelly 309 U.S. App. D.C.51 39 F.3d 328 330 (D.C. Cir.1994) (challenge to procedure which implicates good-time credits barred by Heck); Armento-Bey v. Harper 68 F.3d 215 (8th Cir.1995) (per curiam); Gotcher v. Wood 66 F.3d 1097 (9th Cir. 1995) petition for cert. filed 64 U.S.L.W. 3605 (U.S. Feb. 26 1996) (No. 95-1385).

Although united in concluding that Heck reaches internal prison proceedings the circuits have not been uniform in applying it. The prisoners in Armento-Bey and Gotcher were both allowed to proceed with their damage claims after the respective courts determined the plaintiffs were not claiming entitlement to good-time credits but were merely challenging the procedure used to deny them the credits. See e.g. Gotcher 66 F.3d at 1099 ("Gotcher's case does not call into question the lawfulness of his continuing confinement").

Court believes that this narrow reading of Heck by the Eighth and Ninth Circuits misconstrues its meaning. In the first place even before Heck it was unlikely that prisoners would ordinarily seek restoration of good-time credits in a Sec. 1983 action because it is clear under Preiser that they could not. Moreover Heck suggests that a prisoner may not avoid its proscription merely by artful pleading -- that is by challenging only the sufficiency of process and not claiming entitlement to good-time credits. Heck states that a Sec. 1983 action does not lie if the claim "necessarily implies" the invalidity of the conviction or sentence. 114 S. Ct. at 2372. Thus Heck implicitly directs the district court to determine whether a decision in favor of the prisoner will of necessity vitiate the action taken by the state in depriving the prisoner of good-time credits (or other benefits affecting the duration of a sentence). If so the claim is not cognizable under Sec. 1983. See Miller 75 F.3d at 331; Armento-Bey 68 F.3d at 216 (Bowman J. dissenting).

Here Amin does not challenge his loss of the 30 days of good-time credits. Rather he challenges the sufficiency of the process afforded him that led to the loss of the good-time credits (and to the Parole Board's decision to reverse course and not grant him parole). Nonetheless the mere fact that Amin challenges only the procedure cannot be controlling. The defendants state that Amin lost 30 days of good time credits *fn4 which Amin does not dispute. *fn5 It necessarily follows that if the procedure which led to Amin's institutional conviction were found to be constitutionally deficient by this Court the conviction would have to be vacated and the good-time credits restored. Thus quite apart from the question of whether the Parole Board would then grant him "discretionary parole " Amin's ultimate release date -- the date on which he must be released -- would be affected. *fn6 Under Heck therefore this action cannot proceed under Sec. 1983. Even if Amin were to disclaim any interest in the good-time credits the fact remains that the state would expunge the conviction and restore the credits. As stated above Court does not believe that Amin can circumvent the Heck bar by artful pleading.

Heck instructs that the Sec. 1983 action must be dismissed "unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 2372. Accordingly the plaintiff will now be given an opportunity to demonstrate that the conviction for his institutional infraction for illegal drug use in April 1994 has been invalidated. Plaintiff shall have thirty (30) days from the date of this order to submit such evidence. Unless the plaintiff can show that the conviction has been invalidated this action will be dismissed without prejudice and the plaintiff will have to proceed in habeas. *fn7

The other motions herein will be held in abeyance pending plaintiff's response to this order. *fn8

The Clerk of Court is DIRECTED to forward copies of this order to the plaintiff and Counsel for defendants.