Unpublished Disposition, 905 F.2d 1540 (9th Cir. 1989)

MEMORANDUM^** 

In this consolidated appeal, appellant Randy Kraft, and pro se appellant Robin Scott Dasenbrock challenge the district court's dismissals of their habeas corpus petitions. The appellee in both cases is Brad Gates, Sheriff of Orange County.

In his first amended petition for writ of habeas corpus by a person in state custody, Kraft set forth the following grounds for relief: (1) inadequate sleep (5th, 14th, and 8th amendments); (2) inadequate food (same); (3) being in isolation for five years (same); (4) denial of personal property (same); (5) spending five years in a 38 sq. ft. cell (same); (6) having complete radio/TV/audio censorship for five years (1st, 5th, 14th, and 8th amendments); (7) being in short-term custody for five years (1st, 5th and 14th amendments); and (8) being denied a fair trial and right to prepare a defense as a result of five years of confinement (6th amendment).

The district court found that Kraft failed to exhaust claims 1, 2, 3, 5, 6, 7 and 8. Moreover, the court found that the majority of Kraft's allegations, including claim 4, challenged the conditions of confinement and thus were improperly brought in a petition for habeas corpus. Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (habeas petitions limited to "attacks upon the legality or duration of confinement"). We affirm.

Since the district court dismissed Kraft's petition, Kraft has been sentenced for his crimes and transferred from the Orange County Jail to San Quentin. On December 21, 1989, we denied Kraft's application for an order transferring him back to the Orange County jail. Under these circumstances, all of Kraft's claims, with the exception of his eighth claim, are moot.

A case is moot " 'when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.' " Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (citations omitted). A prisoner who has been transferred from one prison to another no longer has a legally cognizable interest in the outcome of his case when he challenges the conditions of his prior confinement. See Sample v. Borg, 870 F.2d 563, 563 (9th Cir. 1989) (both parties agreed that First Amendment challenge to prison regulations moot because prisoners transferred from prison with challenged regulations). See also Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (prisoner's claim for injunctive relief from prison regulations moot because prisoner transferred from prison with challenged regulations).

The first six of Kraft's claims challenge the conditions of his confinement at the Orange County Jail. Because Kraft has been transferred from the Orange County Jail, he is no longer subject to the challenged conditions. Therefore, Kraft no longer has a legally cognizable interest in the outcome of his first six claims for relief. See Sample, 870 F.2d at 563.

Kraft's seventh claim for relief challenges his five year confinement in short-term custody. Unlike Kraft's first six claims for relief, this allegation challenges the legality or fact of his confinement at the Orange County Jail, and thus was properly brought in a habeas petition. See Crawford, 599 F.2d at 891. Nevertheless, because Kraft is no longer being held in short-term confinement, he does not have a legally cognizable interest in the outcome of this claim. Therefore, Kraft's seventh claim for relief is also moot. See Murphy, 455 U.S. at 481.

Although a case may be technically moot, the claim may still be reviewed if the case is "capable of repetition, yet evading review." Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). Kraft argues that his claims fit within this exception.

The Supreme Court has held that:

[I]n the absence of a class action, the 'capable of repetition, yet evading review' doctrine [is] limited to the situation where two elements combine [ ]: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.

Murphy, 455 U.S. at 482 (citations omitted). Kraft argues that his claim is not moot because habeas litigation is too short in duration to permit adequate review. However, "evading review" means the challenged action is of short duration, not that the vehicle used to challenge the action is of short duration. Id. Here, Kraft challenges the constitutionality and the conditions of his five-year pretrial confinement. The action challenged was therefore not of a short duration.

Kraft has also failed to show a "reasonable expectation" or a "demonstrated possibility" that he will return to the Orange County Jail. Id. Kraft maintains that there is a reasonable expectation that he will be subject to the same conditions again "should retrial occur." However, "capable of repetition" is not satisfied by a "mere physical or theoretical possibility ... that the same controversy will recur involving the same complaining party." Id. Kraft has not shown that his retrial and subsequent confinement in the Orange County Jail is more than a "theoretical possibility." Therefore, Kraft has failed to show that his case is "capable of repetition yet evading review."

Kraft's eighth claim for relief challenges his denial of a fair trial as a result of five years of confinement. If this allegation is true, Kraft still has a legally cognizable interest in the outcome of this claim even if he has since been transferred from the Orange County Jail. Thus, unlike the rest of Kraft's petition, Kraft's eighth claim for relief is not moot. Nevertheless, the district court correctly dismissed this claim because Kraft failed to exhaust state remedies.

In order to satisfy the exhaustion requirement, the "federal claim [must be] fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275 (1971). See also Allbee v. Cupp, 716 F.2d 635, 636-37 (9th Cir. 1983). The petitioner's state court pleadings cannot only refer to the general set of facts that he will later claim warrant federal habeas relief. Rather, the petition must afford the state courts an opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim. Picard, 404 U.S. at 276.

Kraft submitted a sixty-page habeas petition to the California State Supreme Court. Included with Kraft's petition was a cover letter in which he stated: " [m]y petition challenges a condition of my confinement, specifically personal property allowance with respect to the length of time I have been detained." The substance of Kraft's petition comports with his description.

On appeal, Kraft notes several instances in which his state petition references facts that could be viewed as describing the impact of his confinement on his right to a fair trial. However, these facts are found interspersed in a sixty-page petition which, in Kraft's own words, focused on his denial of personal property. Moreover, the impact of Kraft's pretrial confinement on his Sixth Amendment right to a fair trial is never referenced in his petition.

Based on this review, we find that the state courts did not have a fair opportunity to address Kraft's Sixth Amendment challenge to his confinement. See Picard, 404 U.S. at 275. Therefore, the dismissal of Kraft's eighth claim for relief for failure to exhaust state remedies was proper.

We affirm the dismissal of Kraft's complaint. The first seven claims are moot and the eighth claim was properly dismissed for failure to exhaust state remedies.

Dasenbrock contends that the denial of his personal property violates his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. The district court summarily dismissed Dasenbrock's petition for failure to exhaust state remedies. We reverse and remand.

While the Supreme Court has left open the question whether a petitioner may use habeas corpus to challenge conditions of confinement, Bell v. Wolfish, 441 U.S. 520, 526 n. 6 (1979), we have limited habeas petitions "to attacks upon the legality or duration of confinement." Crawford, 599 at 891. Dasenbrock's claims pertain to the conditions of his confinement, not the legality or duration of confinement. Therefore, Dasenbrock's claims are not cognizable under 28 U.S.C. § 2254. Rather, Dasenbrock's claims are properly addressed under the Civil Rights Act, 42 U.S.C. § 1983. See Preiser v. Rodriguez, 411 U.S. 475, 499 (1973) ("a Sec. 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody").

Dasenbrock is a pro se litigant, and although his claims are set forth as habeas corpus claims, they are properly deemed civil rights claims under section 1983. See Wilwording v. Swensen, 404 U.S. 249, 251 (1971) (per curiam); see also Hansen v. May, 502 F.2d 728, 729-30 (9th Cir. 1974). Claims under section 1983 do not require an exhaustion of state remedies. See, e.g., Ellis v. Dyson, 421 U.S. 426, 432-33 (1975). Accordingly, Dasenbrock's claims are remanded for consideration as section 1983 claims.¹  See Galligher v. McCarthy, 470 F.2d 740, 741 (9th Cir. 1972).

KRAFT: The district court judgment is AFFIRMED.

DASENBROCK: The district court judgment is REVERSED and REMANDED.