No. C 02-5136 MMC
November 6, 2002
ORDER OF DISMISSAL
Plaintiff, a California prisoner incarcerated at the San Quentin State Prison ("SQSP"), filed this civil rights action under 42 U.S.C. § 1983. He seeks release from custody on the grounds that the prosecutor committed misconduct that resulted in his incarceration. Plaintiff also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915.
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. See 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. at § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See, Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
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); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A civil rights complaint seeking habeas relief should be dismissed without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Insofar as plaintiff seeks to be released from state custody because of an invalid state court conviction or sentence, he is seeking habeas relief. See 28 U.S.C. § 2254 (a). Accordingly, plaintiffs complaint is DISMISSED without prejudice to his bringing his claims in a petition for a writ of habeas corpus, after he has exhausted his state court remedies under 28 U.S.C. § 2254 (b)-(c) by presenting his claims to the Supreme Court of California.
In light of this dismissal, the application to proceed in forma pauperis is DENIED and no fee is due.
This order terminates all pending motions.
[ ] 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 complaint is DISMISSED without prejudice to his bringing his claims in a petition for a writ of habeas corpus, after he has exhausted his state court remedies under 28 U.S.C. § 2254 (b)-(c) by presenting his claims to the Supreme Court of California.