The opinion of the court was delivered by: Maxine M. Chesney, United States District Judge.
ORDER OF DISMISSAL; DENYING LEAVING
TO PROCEED IN FORMA PAUPERIS
(Docket No. 2)
Plaintiff Andrew Driskel, a California prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983, alleging that the denial of his release on parole by state parole officials was unconstitutional.
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1),(2). Pro se pleadings must, however, be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Challenges to state parole eligibility decisions/procedures must be brought by a petition for a writ of habeas corpus if success will necessarily result in immediate or speedier release. See Anyanwutaku v. Moore, 151 F.3d 1053, 1055-56 (D.C. Cir. 1998); see also McQuillion v. Duncan, 306 F.3d 895, 902 (9th Cir. 2002) (assuming without deciding that 28 U.S.C. § 2254(d), the standard of review for habeas petitions, applies to parole eligibility claim). Plaintiff alleges the denial of his release on parole has extended his incarceration by one year, i.e., until his next parole hearing. As a result, success on plaintiff's claim that the denial of his release on parole was unconstitutional would result in his earlier release from prison. Accordingly, plaintiff must bring his claim in a petition for a writ of habeas corpus, not in a civil rights complaint.
For the foregoing reasons, plaintiff's complaint is DISMISSED without prejudice to his bringing his claims in a petition for a writ of habeas corpus filed in a new action.
In light of this dismissal, the application to proceed in forma pauperis is DENIED.
The clerk shall close the file.
This order terminates docket number 2 and all other pending motions.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED plaintiff's complaint is DISMISSED without prejudice to his bringing his claims in a petition for a writ of habeas corpus filed in a new action.
Application to proceed in forma pauperis is DENIED.
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