United States District Court, N.D. California
January 14, 2004.
GREGORY DWAYNE BARNES, Plaintiffs
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).
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
The clerk shall close the file and terminate all pending motions as
moot. No fee is due.
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