Unpublished Disposition, 878 F.2d 386 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 386 (9th Cir. 1989)

Manuel MEDINA, Plaintiff-Appellant,v.M. KENNY; R. Seipulveda; M. Moreno S. Thomson; John F.Cruikshank, Jr. Defendants-Appellees.

No. 88-15773.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 25, 1989.Decided June 22, 1989.

Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.


MEMORANDUM** 

Manuel Medina, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint, construed as a 28 U.S.C. § 2254 petition for habeas corpus relief, for failure to exhaust state remedies. Medina contends that the court erred in construing his complaint as a petition for habeas corpus and by dismissing it without offering him the opportunity to amend. We agree and reverse.

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 by habeas corpus. Preiser v. Rodriquez, 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). Where he 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 corpus petition. Franklin v. Oregon, 662 F.2d 1337, 1347 & n. 13 (9th Cir. 1981).

If the section 1983 complaint seeks both habeas and other relief that is available under section 1983 and the habeas claim is unexhausted, the district court should dismiss the habeas claim while retaining any section 1983 claims. Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974); Ybarra, 723 F.2d at 681-82.

Alternatively, a prisoner may bring a section 1983 action arising from facts which would also support a habeas corpus challenge to the fact or duration of his confinement if he seeks only damages or a declaratory judgment as a predicate to a damage award or injunctive relief other than an injunction ordering his release or shortening the duration of his confinement, and he need not exhaust state remedies before doing so. Wolff, 418 U.S. at 554-55 (proper in a section 1983 action to examine procedures employed in revocation of good time already canceled); Ybarra, 723 F.2d at 682 & n. 5.

Here, Medina seeks neither immediate release nor a reduction in the duration of his confinement. Rather, he wants monetary damages and injunctive relief. To the extent that he seeks monetary damages because of defendants' failure to provide him with exculpatory evidence, this claim was properly brought under section 1983. See Ybarra, 723 F.2d at 678 (section 1983 action for damages for failure to preserve Brady material).

The injunctive relief sought is the release of records to the court. Although Medina alleges that these records contain exculpatory evidence, the release of the records alone will not require Medina's immediate release. The action was properly brought under section 1983. See Wolff, 418 U.S. at 554-55.

Because the court erred in construing Medina's section 1983 complaint as a petition for habeas corpus, the case must be remanded for further proceedings.1 

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 34-4

 1

Medina's motion for the production of documents pursuant to Rules 34 and 45 of the Fed. R. Civ. P. is denied. Medina apparently believes he has a Houston v. Lack, 108 S. Ct. 2379 (1988), problem and needs access to the prison mail log in order to remedy it. There is, however, no problem with the timeliness of this appeal