UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 17, 2013
LAMONT GUS SMITH, PLAINTIFF,
SUPERIOR COURT OF THE COUNTY OF FRESNO, ET AL. DEFENDANTS.
The opinion of the court was delivered by: Ralph R. Beistline United States District Judge
Lamont Gus Smith, a civil committee appearing pro se and in forma pauperis, brings this civil rights action under 42 U.S.C. § 1983. Smith is currently being held at the Coalinga State Hospital as a Sexually Violent Predator ("SVP"). Smith seeks an order releasing him from all forms of custody. Smith brings this action against the Fresno County Superior Court, the Fresno County District Attorney, the California Department of Mental Heath, the California Department of Corrections and Rehabilitation, and the Board of Prison Terms.
This action, which challenges the fact, not a condition, of Smith's incarceration is improperly brought as a civil rights action under § 1983. Smith is challenging the fact of his custody, not the conditions; therefore it must be brought in a petition for habeas corpus relief under 28 U.S.C. § 2254.*fn1
One of the preconditions to bringing a federal habeas petition is that
this Court may not consider claims that have not been fairly presented
to the state courts.*fn2 Unexhausted claims must be
dismissed.*fn3 Exhaustion of state remedies requires
the petitioner to fairly present federal claims to the state courts in
order to give the state the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights.*fn4
Thus, Smith has failed to fully exhaust his state court
remedies by presenting his claim to the highest state
court,*fn5 i.e., the California Supreme
Because Smith is proceeding pro se and this Court must liberally construe pro se pleadings,*fn6 normally this Court would simply dismiss with leave to amend providing Smith the opportunity to cure the defect, i.e., refile as a petition for habeas relief. In this case, however, it is obvious from the Complaint that Smith has not sought relief in any form in the California State Courts. Thus, as a petition for federal habeas relief, because he has not exhausted any of his claims, it is premature and must be dismissed.*fn7 Dismissal will, however, be without prejudice to Plaintiff filing a petition for federal habeas relief under § 2254.
IT IS THEREFORE ORDERED that the Complaint herein is DISMISSED without prejudice and the Clerk of the Court is directed to enter final judgment accordingly.