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BARNES v. DIRECTOR OF CALIFORNIA DEPT. OF CORRECTIONS

United States District Court, N.D. California


January 14, 2004.

GREGORY DWAYNE BARNES, Plaintiffs
v.
DIRECTOR OF CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendant

The opinion of the court was delivered by: VAUGHN WALKER, District Judge

ORDER OF DISMISSAL

Plaintiff, a prisoner at San Quentin State Prison, has filed a pro se complaint under 42 U.S.C. § 1983 & 1985 alleging "excess sentencing" and prosecutorial "vindictiveness."

It is well-established that any claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code. See Calderon v Ashmus, 523 U.S. 740, 747 (1998); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A claim that affects the legality or duration of a prisoner's custody, and a determination of which may result in entitlement to an earlier release, as is the case here, accordingly must be brought under habeas. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir 1990); see also Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir 2003) (implying that claim, which if successful would "necessarily" or "likely" accelerate prisoner's release on parole, must be brought in a habeas petition). Page 2

  Plaintiff's civil rights complaint attacking his sentence is DISMISSED without prejudice to bringing it as a petition for a writ of habeas corpus under 28 U.S.C. § 2254 after exhausting state judicial remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir 1995) (civil rights complaint seeking habeas relief should be dismissed without prejudice).

  The clerk shall close the file and terminate all pending motions as moot. No fee is due.

  SO ORDERED. Page 1

20040114

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