UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


RAZZOLI, KEVIN

v.

FED BUR OF PRISONS


99-5289a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: This appeal puts in question the  relationship
between an en banc decision of this court and two  recent Supreme
Court cases. The latter require a prisoner to  succeed in a habeas
action before bringing a claim that  challenges, even indirectly, the
duration of his custody--for  example a damages claim for due process
violations made in  the course of a decision revoking good time
credit. See  Edwards v. Balisok, 520 U.S. 641 (1997). Balisok has been
 read as mandating the use of habeas only when the claim, if 
successful, will inevitably necessitate invalidation of a decision 
creating, extending, or refusing to curtail custody. But in 
Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988),  we found
that habeas was the exclusive remedy even where a  claim's impact on
custody was only probabilistic. Chatman- Bey itself involved a
decision on parole eligibility, a necessary  but not sufficient step
toward the actual grant of parole.  Concluding that there is no
inescapable conflict between  Chatman-Bey and the later Supreme Court
decisions, we  adhere to Chatman-Bey: for a federal prisoner, habeas
is  indeed exclusive even when a non-habeas claim would have a  merely
probabilistic impact on the duration of custody.


* * *


Appellant Kevin Razzoli is a federal prisoner serving a  sentence for
attempted murder. He challenges an order by  the district court
dismissing his claims against the Federal  Bureau of Prisons ("BOP")
and the United States Parole  Commission for declaratory relief and
damages under the  Privacy Act, 5 U.S.C. s 552a, and the Freedom of
Informa- tion Act, 5 U.S.C. s 552 ("FOIA").


Razzoli's current troubles started when a prison official at  the
Allenwood Federal Correctional Institution claimed that  on July 23,
1995 he had found cocaine and a razor blade in  Razzoli's cell. After
a Unit Disciplinary Committee hearing,  Razzoli received a sanction
that included the loss of 60 days  statutory good time credit. A
report on the incident was  forwarded to the FBI for investigation,
but no new criminal  charges were brought against Razzoli. After the
Disciplinary  Committee action, but based on the same events, the
United  States Parole Commission withdrew Razzoli's recommended 
parole release date and established a new date twenty-four  months
later, in effect delaying his eligibility for parole by  two years.


Razzoli filed a pro se complaint in district court here,  alleging that
the BOP staged the incident on which the  actions of the Disciplinary
Committee and Parole Commission  were based. Although the complaint
does not highlight the  difference, it suggests that the Disciplinary
Committee found  him guilty only of possession and that the Parole
Commission  found him guilty of possession with intent to distribute.
It  further alleges that the Parole Commission conspired with  the BOP
and knowingly used false information against Razzo- li. The complaint
says that Razzoli never received a copy of  any FBI report and
suggests that the report must not have  supported the Parole
Commission's determination.


Before the complaint was served on either of the federal  defendants,
the district court dismissed the case sua sponte  for failure to state
a claim on which relief could be granted.  The court found that
Razzoli's claims amounted to collateral  attacks on the actions of the
Disciplinary Committee, and that  under Balisok and the key
predecessor cases of Heck v.  Humphrey, 512 U.S. 477 (1994), and
Preiser v. Rodriguez,  411 U.S. 475 (1973), "the sole federal remedy
for challenging  the loss of good time credit is a petition for habeas
corpus."  Razzoli v. Federal Bureau of Prisons No. 99-1711 (D.D.C. 
July 30, 1999). Under Balisok, a non-habeas civil action by a 
prisoner is not cognizable where " 'a judgment in favor of the 
plaintiff would necessarily imply the invalidity of his convic- tion
or sentence,' unless the prisoner can demonstrate that 


the conviction or sentence has previously been invalidated."  Balisok,
520 U.S. at 643 (quoting Heck, 512 U.S. at 487).


We review the district court's dismissal for failure to state  a claim
de novo. See Davis v. District of Columbia, 158 F.3d  1342, 1348 (D.C.
Cir. 1998). Dismissal under Rule 12(b)(6) is  proper if, taking all
the material allegations of the complaint  as admitted and construing
them in plaintiff's favor, we find  that he has failed to allege each
of the material elements of  his cause of action. See Taylor v.
Federal Deposit Insurance  Corp., 132 F.3d 753, 761 (D.C. Cir. 1997);
see also Kowal v.  MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.
Cir.  1994). In addition, we are bound to read the filings of a pro 
se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520 
(1972); Richardson v. United States, 193 F.3d 545, 548 (D.C.  Cir.
1999). The application of Preiser, Heck, and Balisok  complicates our
task, for we must find allegations that are not  only sufficient to
make out claims under the statutes, but that  also do not trigger the
habeas-channeling rule. We appointed  amicus curiae to argue the


The theory of Razzoli's Privacy Act claim is that BOP and  the Parole
Commission violated 5 U.S.C. s 552a(e)(5) by  maintaining in their
files and using a false record, the report  of the drug possession
incident, even though they knew it to  be false. We read the Privacy
Act part of the complaint as  having two dimensions, one clearly
running afoul of Balisok,  the other not so clearly.


What clearly runs afoul of Balisok is his apparent claim in  relation
to the recision of good time. If BOP knowingly  preserved and acted
upon a totally invented record of drug  possession, plainly the
recision of good time would have to be  overturned, thus accelerating
Razzoli's release. Indeed, Raz- zoli has already brought such a claim
in the Middle District of  Pennsylvania in the form of an action under
Bivens v. Six  Unknown Named Agents of Federal Bureau of Narcotics, 
403 U.S. 388 (1971), and the Third Circuit has found it barred  under
the Balisok doctrine. See Razzoli v. Swinson, No.  97-7558, slip op.
at 4-6 (3rd Cir. June 1, 2000).


But the amicus contends that Razzoli frames a second  attack that
implicates only the determination by the Parole  Commission to
postpone his parole eligibility. Under this  reading, Razzoli is
arguing that the Parole Commission deci- sion was based on addtional
inaccuracies in his record--the  absence of the FBI report and the
addition of "intent to  distribute" to the possesion charge. The
government resists  this interpretation, but we think it within the
range of plausi- ble interpretations given the alleged absence of the
FBI  report from the record, the complaint's explicit attacks on the 
decision of the Parole Commission, and the distinction (slight- ly
submerged, to be sure) between the Disciplinary Commit- tee's charge
of possession and the Parole Commission's find- ing of possession with


The Supreme Court's trilogy addressing the relation be- tween petitions
for habeas corpus and other prisoner claims  began with Preiser v.
Rodriguez, 411 U.S. 475 (1973). State  inmates who had been deprived
of good time credit in prison  disciplinary proceedings brought
actions under 42 U.S.C.  s 1983 seeking injunctive relief to compel
restoration of the  credit. The Court saw "the essence" and
"traditional func- tion" of habeas as being "to secure release from
illegal  custody." Id. at 484. The Court found that an attack on 
revocation of good time qualified as an attempt to secure such 
release. Such an attack is "just as close to the core of habeas 
corpus as an attack on the prisoner's conviction, for it goes 
directly to the constitutionality of his physical confinement  itself
and seeks either immediate release from that confine- ment or the
shortening of its duration." Id. at 489. More  critically, the Court
found that the habeas remedy was exclu- sive. Comparing the general
language of s 1983 with the  specificity of the habeas statute and
focusing on Congress's  clear intent to assure exhaustion of state
remedies in the  latter, it found a congressional intent to provide
only one  remedy for attacks on physical confinement. Id. at 489-92.


In Heck v. Humphrey, 512 U.S. 477 (1994), the Court  extended Preiser
to cover a prisoner's s 1983 claim for  damages for alleged
constitutional violations in his arrest and  conviction, observing
that "establishing the basis for the  damages claim necessarily
demonstrates the invalidity of the 


conviction." Id. at 481-82. The Court went on to hold that  "in order
to recover damages for allegedly unconstitutional  conviction or
imprisonment, or for other harm caused by  actions whose unlawfulness
would render a conviction or  sentence invalid, a s 1983 plaintiff
must prove that the con- viction or sentence has been [overturned]."
Id. at 486-87.  Finally, Balisok extended Preiser and Heck to cover a
s 1983  damages action for procedural violations allegedly committed 
in a prison disciplinary hearing that deprived the plaintiff  prisoner
of good time credits. The Court rejected any dis- tinction between
procedural and substantive claims, saying  that any such distinction
"disregards the possibility, clearly  envisioned by Heck, that the
nature of the challenge to the  procedures could be such as
necessarily to imply the invalidi- ty of the judgment." Id. at 645.


In each of the cases of the trilogy, the plaintiff's establish- ment of
his claim would itself have been sufficient to entitle  him to earlier
release--subject, at least in the Balisok case, to  the possibility of
renewed revocation of the good time credit  in a new hearing untainted
by constitutional error. See  Balisok, 520 U.S. at 647. But in 1988
this court read Preiser  to require habeas for a federal prisoner's
attack on a parole  eligibility decision, reversal of which would
merely give him a  chance at earlier parole. Chatman-Bey v.
Thornburgh, 864  F.2d 804 (D.C. Cir. 1988). We recognized both of the
case's  arguable distinctions from Preiser: first that Chatman-Bey 
was a federal prisoner and second that success on his stated  claim
would not lead either to immediate release or to a  definite reduction
in sentence. Id. at 808-10. We also  rejected both, relying on the
Preiser Court's finding of a  congressional determination that habeas
be the exclusive  means for challenging the fact or duration of
custody. Id. at  808 n.4 ("in the most practical sense, parole
eligibility 'impli- cates' the duration of confinement"). Application
of  Chatman-Bey here funnels plaintiff's claim into habeas.


The amicus would have us hold that Chatman-Bey is no  longer
controlling. In Anyanwutaku v. Moore, 151 F.3d 1053  (D.C. Cir. 1998),
we read the Preiser trilogy as not requiring  habeas for a District of
Columbia prisoner's s 1983 attack on 


an adverse parole eligibility decision. Instead, we saw it as  barring
a s 1983 claim "only when, if successful, it would  'necessarily
imply,' or automatically result in, a speedier  release from prison."
Id. at 1056. We distinguished Chat- man-Bey on the ground that it
involved a federal prisoner,  and said that we need not consider
whether it had any  "continuing vitality after Heck and Balisok." Id.
at 1057.  Now we must.


Of course a Supreme Court decision flatly contradicting an  earlier
circuit precedent would control. See Dellums v. Unit- ed States
Nuclear Regulatory Comm'n 863 F.2d 968, 978 n.  11 (D.C. Cir. 1988).
But, faced with the issue Anyanwutaku  left open, we find no such flat
contradiction. First, none of  the cases in the trilogy addressed
claims with a merely  probabilistic impact on the duration of custody;
thus none  had occasion to rule definitely on whether such claims need
 be brought in habeas. Second, as we noted in Chatman-Bey,  the
Supreme Court has made clear that habeas is proper for  such a claim.
See Braden v. 30th Judicial Circuit Court of  Kentucky, 410 U.S. 484
(1973), cited in Chatman-Bey, 864  F.2d at 807. Third, although the
Ninth Circuit has read  Balisok as inapplicable to attacks on parole
eligibility deci- sions, saying that their success would not guarantee
a reduc- tion in confinement, Neal v. Shimoda, 131 F.3d 818, 824 (9th 
Cir. 1997), the Seventh Circuit has given the trilogy a quite 
different reading, saying that it calls for habeas exclusivity 
whenever the proof necessary for a prisoner's claim "involves  the
proof of a fact that would also be essential to a habeas  corpus
action." Clayton-EL v. Fisher, 96 F.3d 236, 242 (7th  Cir. 1996); see
also id. at 244. Fourth, Chatman-Bey made  clear that a major
implication of habeas exclusivity in cases  involving federal
prisoners was its impact on venue. See  Chatman-Bey, 864 F.2d at 805,
810-14. In non-habeas feder- al prisoner actions, a plaintiff could
almost always name a  defendant over whom the district court for the
District of  Columbia would have personal jurisdiction. But a habeas 
challenge must be brought against the custodian, a rule that  channels
such claims into the federal court with jurisdiction  over the


course, every bit as applicable here as in Chatman-Bey itself,  but had
little or no relevance to Anyanwutaku; even if state  prisoners with
probabilistic claims are relieved of the stric- tures of Balisok, the
District of Columbia would generally not  be a possible site for
litigation.


Finding Chatman-Bey alive and at worst only modestly  ailing, we
conclude that Razzoli's Privacy Act claim--not only  in regard to the
good time decision but also in regard to  parole eligibility--is not
cognizable. In one respect, however,  the district court erred on this
claim: it should have been  dismissed without prejudice. If Razzoli is
successful in over- turning the Disciplinary Committee and Parole
Committee  actions through a petition for habeas, he should be allowed
to  bring his Privacy Act claim at that time. See Fottler v.  United
States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).


There remains Razzoli's FOIA claim. The district court  concluded that
not only the Privacy Act but also the FOIA  claim was barred by Heck
and Balisok. We do not see the  logic. A FOIA claim wins, generally
speaking, if the plaintiff  has properly requested the document from
the agency and no  exemption applies. Razzoli evidently seeks the
supposedly  exonerating FBI report. Of course that report could
possibly  be helpful in both his good time and his parole eligibility 
claims. But a judicial finding that some agency must deliver  this
report to Razzoli would not itself establish some neces- sary element
of those claims; so Balisok would not apply  even under the
comparatively broad reading that prevails in  the Seventh Circuit. See
Clayton-EL v. Fisher, 96 F.3d at  242.


Appellees contend that, quite apart from Heck and Balisok,  Razzoli has
failed to state a claim on which relief can be  granted. In reviewing
the decision of a lower court, we "can  affirm a correct decision even
if on different grounds than  those assigned in the decision under
review." Danielsen v.  Burnside-Ott Aviation Training Center, Inc.,
941 F.2d 1220,  1230 (D.C. Cir. 1991). This court has found that rule
particu- larly applicable when reviewing a dismissal for "failure to 
state a claim,... a pure question of law which we review de 


novo." See id. (citing Securities and Exchange Comm'n v.  Chenery
Corp., 318 U.S. 80 (1943)).


Here, despite the efforts of the amicus to stretch our  imaginations,
we find little more in the complaint than a bald  reference to the
statute. Appellant mentions in passing that  he did not receive the
FBI report, but makes no reference to  requests for this document. He
later claims that he "has  exhausted all other remedies available to
him to attempt to  correct the record, but was denied," but in the
context of the  complaint this seems to be a reference to the entire
record of  his cocaine possession. Complaint at 4, Razzoli v. Federal 
Bureau of Prisons, No. 99 CV 1711 (D.D.C. June 27, 1999)  Even giving
the pro se plaintiff the benefit of every reason- able doubt, we
cannot make out a FOIA claim from this  complaint.


The only question remaining is whether sua sponte dismiss- al without
leave to amend was appropriate. The Prisoner  Litigation Reform Act of
1995 not only allows but requires a  district court to dismiss a
prisoner's claim before the defen- dant answers if it finds that the
complaint fails to state a  claim. See 28 U.S.C. Sec. 1915A(b)(1).
Even prior to the enact- ment of that statute, this court had approved
of sua sponte  dismissals for failure to state a claim in some
circumstances.  See Baker v. Director, United States Parole Comm'n,
916  F.2d 725, 726 (D.C. Cir. 1990) (per curiam). But nothing has 
altered our long-standing rule that a sua sponte dismissal for 
failure to state a claim without leave to amend is reversible  error
unless "the claimant cannot possibly win relief." See  Davis v.
District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir.  1998) (quoting
Baker, 916 F.2d at 726). This will be the case  either when "the facts
alleged affirmatively preclude relief, or  because, even though
plaintiff makes clear that he has facts to  add to his complaint, he
would not have a claim upon which  relief could be granted even with
those facts." Id. Neither  of these formulations applies to Razzoli.
Accordingly, al- though we agree with the judgment that Razzoli failed
to  state a claim, we must remand and order the district court to 


We vacate the order dismissing the Privacy Act claim with  prejudice
and remand for the district court to do so without  prejudice. We also
vacate the order dismissing the FOIA  claim with prejudice and remand
for the district court to  dismiss with leave to amend.


So ordered.