Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1986)

MEMORANDUM^** 

Charlie L. Evans, an Arizona state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. Evans claims his constitutional rights were violated by various actions incident to his arrest, search, and trial. He requests immediate release from prison, compensatory and punitive damages, declaratory and injunctive relief, destruction of various records, and criminal sanctions against defendants, who include various law enforcement, corrections, and judicial officials.

The district court dismissed the complaint because (1) the claims regarding purported constitutional infirmities in Evans' arrest, trial, and conviction, combined with his request for immediate release from prison, can only be brought by petition for habeas corpus, and (2) Evans could prove no set of facts entitling him to relief under 42 U.S.C. § 1983. We affirm in part and reverse in part.

A state prisoner's challenge to the fact or duration of his confinement, in which he seeks immediate release or a shortening of its duration, may be raised only on habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14 (1973); see also Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). The district court should treat a prisoner's section 1983 complaint brought pro se as a habeas corpus petition to the extent that the complaint seeks relief available only under habeas corpus. Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981). If the complaint seeks both habeas relief and relief available under section 1983, and the habeas claims remain unexhausted, the district court should dismiss the habeas claims but may retain the section 1983 claims. Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974); Ybarra, 723 F.2d at 681-82.

Evans' challenge to the fact and duration of his confinement may be raised only in a habeas proceeding. To this extent, his complaint should be treated as a petition for habeas corpus. It is unclear from the record whether his habeas claims have been exhausted in the state courts. The record contains no case history, and the district court did not have the records from state proceedings in Evans' case.

We therefore reverse the district court's dismissal of Evans' action to the extent that it contains claims that can be raised on habeas corpus and direct the court to treat the complaint as a petition for habeas corpus as to those claims. The district court shall obtain state court records in Evans' case. If the court satisfies itself that Evans has exhausted the state remedies for his habeas claims and determines that the claims may have merit, the court shall appoint counsel and hold an evidentiary hearing on the merits of the habeas claims.

Evans also seeks relief under 42 U.S.C. § 1983. The applicable limitations period for a section 1983 action is the state's statute of limitations for personal injury cases. De Luna v. Farris, 841 F.2d 312, 313 (9th Cir. 1988) (citing Wilson v. Garcia, 471 U.S. 261 (1985)). This period is two years in Arizona. Ariz.Rev.Stat.Ann. Sec. 12-542(1) (1982). However, imprisonment tolls the statute of limitations in Arizona. Id. Sec. 12-502. The statute was amended effective August 3, 1984, to provide that the imprisonment disability exists only until the prisoner discovers or, with the exercise of reasonable diligence, should have discovered, the right to bring the action, whichever occurs first. Id. Sec. 502(B) (Supp.1988). The effect of this amendment has been understood differently. In De Luna, this circuit applied an Arizona statute, id. Sec. 505(B) (1982), providing that the time fixed in the amendment governs the limitations period for actions not barred when the amendment takes effect. 841 F.2d at 314. We held that the statute thus begins to run when the prisoner has discovered or should have discovered the right to bring the action. Id. at 314-15. Not applicable in De Luna, but applicable here, is section 505(C). Section 505(C) states that if the amendment shortens the limitations period so that, upon taking effect, it would bar a previously nonbarred action, the plaintiff would have one year after the effective date to bring the action. The longest possible limitations period on Evans' action under section 505 would be two years.

Evans alleges no section 1983 violation after his conviction. Although the conviction date is unclear from the record, it clearly occurred by mid-June 1984 and he was clearly aware of any violation at the time. Evans filed his action in 1988. If section 505 is applied, it was clearly untimely.

The Arizona court of appeal, since De Luna, has treated the amendment to the statute of limitations differently, reasoning that applying section 505 to section 502(B) was erroneous. Zuck v. State, 159 Ariz. 37, 764 P.2d 772, 775-76 (Ct.App.1988). The court held that if the imprisonment disability existed at the time the amendment took effect, the two-year limitations period began on the amendment's effective date. The disability was deemed removed on that date and would expire August 3, 1986. Id. at 775. Under this approach as well, the statute of limitations would be a bar to Evans' section 1983 claims.

CONCLUSION

The judgment dismissing claims properly treated as habeas corpus claims is reversed and remanded to the district court for further proceedings. The judgment dismissing claims for relief available under 42 U.S.C. § 1983 is affirmed.