Unpublished Disposition, 844 F.2d 791 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 791 (9th Cir. 1988)

David K. DAVIS, Petitioner-Appellant,v.Harold McKINNEY, Fresno County Sheriff, Respondent-Appellee.

Nos. 86-2370, 86-2466.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 8, 1988.* Decided April 4, 1988.

Before SKOPIL, SCHROEDER and ALARCON, Circuit Judges.


MEMORANDUM** 

David K. Davis appeals pro se the district court's order dismissing as moot his 28 U.S.C. § 2255 (1982) petitions for habeas corpus relief. Davis alleges that conditions relating to his confinement violated his constitutional rights. We affirm.

FACTS AND PROCEEDINGS BELOW

Davis filed a habeas petition while temporarily incarcerated at the Fresno County Jail on a federal detainer. He alleged that he suffered cruel and unusual punishment due to overcrowding, inadequate clothing and food, and a lack of exercise and shower facilities in the jail. He filed a second petition alleging that the inadequacy of the jail's library deprived him of his right to assist in his own defense and his right of access to the courts. He was later transferred to the state prison in Soledad, California. The district court dismissed his petitions as moot.

DISCUSSION

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) (citations omitted). Davis has no legally cognizable interest in the outcome of his case because he is no longer subject to the conditions of the Fresno County Jail. Moreover, Davis's action does not fall within the cases "capable of repetition, yet evading review" because he has not brought a class action on behalf of similarly situated prisoners still incarcerated at the jail as in Bell v. Wolfish, 441 U.S. 520, 526 n. 5 (1979), and he has not shown either a "demonstrated probability" or a "reasonable expectation" that he will return to the facility. See Murphy, 455 U.S. at 482 (citations omitted); Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Accordingly, the district court properly dismissed his petitions as moot.

Even if Davis' petitions were not moot, his complaints do not entitle him to habeas relief. While the Supreme Court has left open the question whether a petitioner may use habeas corpus to challenge conditions of confinement, Bell, 441 U.S. at 526 n. 6, we have limited habeas petitions "to attacks upon the legality or duration of confinement." Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979). Davis' challenges to the condition of his confinement and the inadequacy of the library facilities do not challenge the legality or duration of his confinement. See id. Accordingly, we conclude that Davis' claims are not cognizable under 28 U.S.C. § 2255.1 

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

While we have discretion to construe Davis' petition as an action under 42 U.S.C. § 1983 (1982), see Wilwording v. Swenson, 404 U.S. 249, 251 (1971), there is no need for such a construction as Davis' claims are moot. See Darring, 783 F.2d at 875-76