Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1990)

MEMORANDUM^** 

John Shannon, a Nevada state prisoner, appeals pro se and in forma pauperis the district court's summary dismissal without prejudice under 28 U.S.C. § 1915(d) of his civil rights action. We affirm.

Shannon sued Thomas A. Foley, a state judge, pursuant to 42 U.S.C. § 1983 alleging that the judge acted outside his jurisdiction when he convicted Shannon in Nevada for a crime committed in Arizona. He sought damages as well as declaratory and injunctive relief. The district court dismissed Shannon's claim prior to serving process concluding that it is a challenge to the constitutionality of Shannon's conviction and that his sole initial federal remedy is a petition for writ of habeas corpus. We interpret a district court's dismissal prior to service of process as pursuant to 28 U.S.C. § 1915(d) and review de novo. Jackson v. State of Arizona, 885 F.2d 636, 640 (9th Cir. 1989).

When a state prisoner challenges the fact or duration of his confinement, his exclusive federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, when a prisoner files a section 1983 complaint that seeks relief available only under habeas corpus, the district court should construe the complaint to that extent as a habeas petition. Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981). If the prisoner has failed to exhaust his state remedies before requesting relief in the federal courts, the district court should dismiss habeas claims. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). Ordinarily, a district court should stay, rather than dismiss, a prisoner's claim for damages while the prisoner exhausts his state remedies. Young v. Kenny, 887 F.2d 237, 240 (9th Cir. 1989). A stay is appropriate to prevent the statute of limitations from barring the prisoner's damage action in the future. See id.

The district court properly construed Shannon's complaint as containing habeas claims. See Preiser, 411 U.S. at 500. Further, because Shannon did not allege that he exhausted his state remedies the district court properly refused to grant habeas relief. See Ybarra, 723 F.2d at 681-82. Moreover, even if Shannon is entitled to habeas relief, since Judge Foley would be entitled to absolute immunity from the claims brought against him, see Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988), the district judge properly dismissed the complaint in its entirety.¹ 

AFFIRMED.