UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
March 29, 2013
DION DARYL WHEELWRIGHT, PLAINTIFF,
CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL.,
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DENYING MOTION FOR A STAY OR EXTENSION OF TIME FOR WRIT OF HABEAS CORPUS (ECF No. 8)
Plaintiff Dion Daryl Wheelwright ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On March 21, 2013, Plaintiff filed a motion requesting a stay or an extension of time to file a habeas corpus petition. (ECF No. 8.)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). Although the Court has not screened Plaintiff's case to determine whether dismissal is appropriate, it is apparent that Plaintiff's claim is a civil action seeking damages filed pursuant to 42 U.S.C. § 1983, not a petition for writ of habeas corpus.
If Plaintiff intends to file a petition challenging the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Plaintiff may not pursue his writ of habeas corpus in this damages action. He must initiate a separate action. Accordingly, Plaintiff's request for a stay or for an extension of time to file a writ of habeas corpus in this case is DENIED.
IT IS SO ORDERED.
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