Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1988)

MEMORANDUM^*** 

We are required to decide in this appeal whether the district court properly dismissed Michael Thurman's pro se complaint for lack of federal subject matter jurisdiction based on Thurman's failure to exhaust state remedies. Rose v. Lundy, 455 U.S. 509 (1982). The complaint was brought under 42 U.S.C. § 1983, but the district court held that the complaint sounded in federal habeas corpus, 28 U.S.C. § 2254, and was therefore, subject to an exhaustion requirement. We agree with the district court and affirm.

We have jurisdiction on this final appeal under 28 U.S.C. § 1291. The appeal was timely filed. Rule 4(a) (1), Fed. R. App. P. Our review is de novo. See Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir. 1985).

Thurman is currently incarcerated in a Washington State institution, having been sentenced after his probation was revoked. He had been convicted of indecent liberties, offenses committed on or about September 1981 through April 1982, and he received a maximum term of not more than 10 years.

After serving 31 months, plaintiff was paroled on February 25, 1987, but after violating several parole conditions, his parole was revoked on August 3, 1987. On August 26, 1987, he received a new minimum term of 12 months. Plaintiff was later given a parolability hearing on March 11, 1988 and found not to be parolable, and an additional 36 months was added to his minimum term which would make him again eligible for parole in March, 1990.

In November, 1986, plaintiff filed a section 1983 civil rights complaint against named state officials, claiming that the state authorities improperly sentenced him. He contends that his original sentence should have been a maximum term of 12 months, instead of 10 years, and that he should have been released from prison in May, 1985. Accordingly, he claims damages of $500,000 from each defendant and $1,000 per day for every day he was imprisoned or on parole beyond a maximum of 12 months.

Stripped to its essence, Thurman's claim is that he was sentenced under the wrong Washington State statute and that accordingly, because his sentence is void he has been denied the protection of the due process clause of the 14th amendment. Accordingly, he is asking for immediate release from incarceration and the imposition of money damages against those responsible for his incarceration.

It is undisputed, however, that the exclusive federal remedy for a state prisoner challenging the fact or length of confinement is habeas corpus, with its attendant requirement of exhaustion of state remedies. Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14, 500 (1973); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984). At the time this proceeding was before the district court, there was no evidence presented that he had exhausted state remedies before the Supreme Court of Washington. This failure to exhaust is fatal to his present claim. Should appellant have additional matters to present on the question of exhaustion, he may do so in a fresh petition for relief in the district court. See, e.g., Supplemental Memorandum of Appellant, exhibit 4.

It is settled that where a state prisoner requests damages for illegal confinement in a state institution the available federal remedy depends upon the nature of his attack on the confinement. If he or she is challenging the conditions of confinement, relief under section 1983 will lie with no prerequisite of exhaustion of state remedies. If he or she is challenging the fact or length of confinement, the exclusive remedy is habeas corpus under section 2254, with the prerequisite of state exhaustion. These precepts are clearly distilled from Supreme Court teachings. " [W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500. This is the case here. Where a prisoner is "challenging the conditions of confinement rather than the fact or length of custody," the suit "could be pressed under section 1983." Wolff v. McDonnell, 418 U.S. 539, 554 (1974). Such is not the case here.

The judgment of the district court is AFFIRMED.