Opinion
No. 08-1732.
Submitted: May 20, 2009.
Filed: May 26, 2009.
Appeal from the United States District Court for the Western District of Arkansas.
Jim L. Housley, Wrightsville, AR, pro se.
Warden AR, Arkansas Department of Correction, Dermott, AR, for Appellant.
Before SMITH, GRUENDER, and BENTON, Circuit Judges.
[UNPUBLISHED]
Jim Housley appeals the district court's 28 U.S.C. § 1915(e)(2)(B) preservice dismissal of his civil rights complaint and the court's denial of his motion to proceed in forma pauperis (IFP) on appeal. We grant leave to proceed IFP and affirm.
The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas, adopting the report and recommendations of the Honorable James R. Marschewski, United States Magistrate Judge for the Western District of Arkansas.
We note that the district court has already ordered collection of the appellate filing fee in installments.
Upon de novo review of the dismissal, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000) (per curiam) (standard of review), we agree that any claims Housley asserted that challenged his conviction — explicitly or implicitly — were properly dismissed, see Preiser v. Rodriguez, 411 U.S. 475, 489-90, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (state prisoner challenging conviction on federal constitutional grounds is limited to habeas corpus); Heck v. Humphrey, 512 U.S. 477, 486-37, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (when state prisoner seeks damages in § 1983 suit, district court must consider whether judgment would necessarily imply invalidity of conviction and, if it would, must dismiss case if plaintiff cannot demonstrate that conviction has already been invalidated), but we modify the dismissal of any such claims for damages to be without prejudice, see Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (per curiam) (dismissal under Heck of claims for damages should be without prejudice so plaintiff can refile if he satisfies Heck requirements).
We also agree that any other claims Housley raised which arose out of events preceding his conviction were properly dismissed on statute-of-limitations grounds. See 18 U.S.C. § 2520(e) (civil action may not be commenced later than 2 years after date upon which claimant first has reasonable opportunity to discover violation); 42 U.S.C. § 1986 (1-year statute of limitations); Ark. Code. Ann. § 16-56-105 (3-year personal-injury statute of limitations); Roach v. Owen, 689 F.2d 146, 146-17 (8th Cir. 1982) (per curiam) (state's general statute of limitations usually applies to civil rights suits; court properly applied Arkansas's 3-year statute of limitations to plaintiffs 42 U.S.C. § 1985 claim); Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001) (Arkansas 3-year personal injury statute of limitations applies to 42 U.S.C. § 1983 action); see also Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992) (per curiam) (district court can dismiss IFP complaint under predecessor statute to § 1915(e)(2)(B) if it is apparent statute of limitations has run).
We also affirm the dismissal of Housley's claims challenging his transfer and conditions of confinement, because Housley's allegations failed to state a claim on which relief may be granted. See Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (prisoner states Eighth Amendment claim by alleging prison officials have, with deliberate indifference, exposed him to levels of ETS that pose unreasonable risk of serious damage to his future health); Made-well v. Roberts, 909 F.2d 1203, 1207 (8th Cir. 1990) (finding no protected liberty interest in particular prison classification status; stating elements of Eighth Amendment claim for compelled labor).
Finally, we find no reversible error by the district court in denying Housley's motion to amend his complaint to add allegations related to his parole status. See Greenholtz v. In mates of Neb. Penal and Corr. Complex, 442 U.S. 1, 9-11, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (statute that provides for possibility of parole does not create liberty interest protected by Due Process Clause); Holloway v. Dobbs, 715 F.2d 390, 393 n. 3 (8th Cir. 1983) (per curiam) (any error in district court denying plaintiff leave to amend complaint against defendant who had not served responsive pleading was harmless because amended complaint failed to state claim).
In sum, the judgment is modified to reflect that, to the extent Housley has asserted Heck-barred claims for damages, they are dismissed without prejudice, and the judgment is affirmed as modified.