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TUBBS v. CALIFORNIA DEPT. OF CORRECTIONS

United States District Court, N.D. California


January 23, 2004.

TODD L. TUBBS, Plaintiff,
v.
CALIFORNIA DEPT. OF CORRECTIONS, et al., Defendants

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL (WITH PERMISSION TO FILE A HABEAS CORPUS PETITION)
Plaintiff Todd L. Tubbs ("plaintiff), a California prisoner, has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he has been erroneously incarcerated for violating his parole, and he seeks modification for his sentence and "to be removed from parole."

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). Page 2 Plaintiff challenges the validity of his conviction for violating parole, and seeks modification of his sentence.*fn1 A prisoner must bring a habeas petition if the nature of his claim is such that it may result in entitlement to an earlier release, as in a claim for a violation of his rights in connection with a parole violation. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990). A civil rights complaint seeking habeas relief should be dismissed without prejudice to the prisoner's bringing it as a petition for writ of habeas corpus. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Accordingly, plaintiff's claims challenging the validity and duration of his present incarceration, which is based on his violation of parole, are dismissed without prejudice to his raising them in a habeas petition.

  For the reasons expressed, plaintiff's claims are DISMISSED without prejudice to refiling in a petition for a writ of habeas corpus.

  In light of this dismissal, the application to proceed in forma pauperis is DENIED. No fee is due. This order terminates docket number 2, and the clerk shall close the file.

  IT IS SO ORDERED.

  JUDGMENT IN A CIVIL CASE

  [] Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  [X] 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 claims are DISMISSED without prejudice to refiling in a petition for a writ of habeas corpus.

  In light of this dismissal, the application to proceed in forma pauperis is DENIED. No fee is due.


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