The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a prisoner at Salinas Valley State Prison, has filed a pro
se civil rights complaint under 42 U.S.C. § 1983 seeking "half-time"
credits for time served "from 5/16/02 through today." He also seeks
damages from prison officials at the California Rehabilitation Center in
Norco, California ("CRC") on the ground that he was assaulted by another
inmate while he was at CRC because prison officials were deliberately
indifferent to his safety.
Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
Federal courts must engage in a preliminary screening of cases in which
prisoners seek redress from a governmental entity or officer or employee
of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint
"is frivolous, malicious, or fails to state a claim upon which
relief may be granted," or "seeks monetary relief from a defendant who is
immune from such relief." Id. § 1915A(b). Pro se pleadings must be
liberally construed. Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two
essential elements: (1) that a right secured by the Constitution or laws
of the United States was violated, and (2) that the alleged violation was
committed by a person acting under the color of state law. West v
Atkins, 487 U.S. 42, 48 (1988).
A parole or time credit 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, must be brought under habeas sections
of Title 28 of the United States Code. See Calderon v. Ashmus,
523 U.S. 740, 747 (1998); 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 the prisoner's release on parole, must be brought
in a habeas petition). Plaintiff's request for "half-time" credits
accordingly is DISMISSED without prejudice to his bringing it in 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 to bringing it as a
petition for writ of habeas corpus).
Plaintiff's request for damages for deliberate indifference to his
safety is DISMISSED without prejudice to his bringing it in a complaint
under 42 U.S.C. § 1983 in the United States District Court for the
Central District of California, Eastern Division, where venue properly
lies. See In re Hall
939 F.2d 802, 804 (9th Cir 1991) (dismissal for improper venue must be
without prejudice to refiling in proper court). A substantial part of the
events or omissions giving rise to the claim occurred, and the defendants
named in connection with the claim reside, in the County of Riverside,
which lies within the venue of the Central District of California,
Eastern Division. See 28 U.S.C. § 84(c)(1). Venue therefore properly
lies in the Central District of California, Eastern Division. See id
For the foregoing reasons, plaintiff's request to proceed in forma
pauperis (doc # 2) is DENIED and the complaint is DISMISSED without
The Clerk shall close the file and terminate all pending motions ...