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TIM LEMASTER, Warden, New Mexico State Penitentiary; CHET EDWARDS, Unit Manager, Penitentiary of New Mexico; CARLOS VALDEZ, Unit Manager, Penitentiary of New Mexico,


No. 04-2174

(District of New Mexico)

(D.C. No. CIV-04-507-MCA/WDS)


Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

After examining appellant's brief and the appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Appellant Julius Stewart, a state prisoner proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 asserting that Defendants violated his constitutional right to due process when they implemented disciplinary sanctions resulting in the termination of his ability to earn good time credits. Stewart sought both the restoration of good time credits and monetary damages. The district court dismissed Stewart's complaint without prejudice, concluding that an action seeking the restoration of good time credits must be brought under the habeas corpus statutes with exhaustion of state remedies required. See United States v. Furman, 112 F.3d 435, 438 (10th Cir. 1997). The court further concluded that Stewart's claims for damages were barred by Heck v. Humphrey, 512 U.S. 477 (1994) and Edwards v. Balisok, 520 U.S. 641, 648 (1997).

Stewart then filed the instant appeal together with a request to proceed in forma pauperis. In his appellate brief, Stewart does not address the grounds upon which the district court dismissed his complaint but, instead, presents arguments challenging his underlying conviction and sentence. Having reviewed the record, Stewart's appellate brief, and the applicable law, we conclude that the dismissal of Stewart's § 1983 complaint was proper. Accordingly, the district court's order dismissing Stewart's complaint without prejudice is affirmed for substantially the reasons stated by the district court in its Memorandum Opinion and Order dated June 30, 2004. Stewart's motion to proceed in forma pauperis is granted. Stewart is reminded that he remains obligated to continue making partial payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b).


Michael R. Murphy

Circuit Judge

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*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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