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FRELIMO v. McGRATH

United States District Court, N.D. California


June 1, 2004.

OBA FRELIMO, Plaintiff
v.
JOE MCGRATH, et al., Defendants

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

ORDER OF DISMISSAL

Plaintiff Oba Frelimo, a California prisoner, has filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he was disciplined by prison officials for violating prison rules in a manner that violates his constitutional rights. He states in his complaint that part of his punishment for the violation was the loss of 360 days of good time credits.

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).

  Here, plaintiff challenges the validity of a decision by prison officials that he was guilty of violating a prison rule, which decision resulted in his loss of good time credits. 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). 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 the violation of rights in connection with the loss of good time credits. See Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir. 1990). A civil rights complaint seeking habeas relief is subject to dismissal without prejudice to the prisoner's bringing his claim in a petition for a writ of habeas corpus. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

  Accordingly, plaintiff's complaint challenging the discipline he received for violating prison rules is DISMISSED, without prejudice to refiling in a petition for a writ of habeas corpus after he has exhausted his claims in the state courts. In light of the dismissal, the application to proceed in forma pauperis is DENIED and no fee is due.

  This order terminates docket no. 2.

  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED. [EDITORS NOTE: THIS PAGE CONTAINED CERTIFICATE OF SERVICE] 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.

  [XX] 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 SO ORDERED AND ADJUDGED plaintiff's complaint challenging the discipline he received for violating prison rules is DISMISSED, without prejudice to refiling in a petition for a writ of habeas corpus after he has exhausted his claims in the state courts.

20040601

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