Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

MEMORANDUM^** 

Albert O'Neal Scott, a Nevada state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 1983 complaint, which asserted that the Nevada Department of Prisons denied Scott's constitutional rights by not decreasing his maximum sentence by the amount of his good and work time credits earned as allegedly provided for by Nev.Rev.Stat. Sec. 209.443. Scott requested damages and various equitable remedies. The district court ruled that Scott's request for a reduction in his sentence was only allowed in a petition for habeas corpus while his other claims, possibly cognizable under section 1983, were premature.

We affirm.

Standard of Review

A district court's decision to dismiss a section 1983 action for failure to state a claim is a question of law that we review de novo. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986).

Merits

In his complaint, Scott asked " [t]o have his sentence reduced by the number of days he has earned for good behavior and labor." He also asked for a declaratory judgment that the prison's refusal to reduce his sentence was illegal. When state prisoners challenge the fact that they are confined or the duration of their confinement, their sole federal remedy is by writ of habeas corpus, with the concomitant requirement of exhausting state remedies. Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Preiser v. Rodriquez, 411 U.S. 475, 494 (1973). District courts may not consider a challenge to prison procedures regulating award of good time credit under 42 U.S.C. § 1983 if the remedy requested by the prisoner necessarily leads to his speedier release. Wolff, 418 U.S. at 554; Toussaint v. McCarthy, 801 F.2d 1080, 1103 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). Thus, the district court did not err in finding that Scott's section 1983 complaint in part states claims cognizable only in a petition for habeas corpus.

The district court dismissed Scott's claims for immediate relief from his sentence without analyzing whether the claims, if construed as a petition for habeas corpus, had merit. A district court presented with an improper section 1983 claim by a pro se prisoner should construe that claim as a habeas corpus petition and consider the claim on its merits. See Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981).

However, a federal court may not consider the merits of a habeas corpus petition unless the petitioner exhausts available state remedies. McQuown v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986). A prisoner need not pursue remedies in state court that are speculative or purely conjectural. Wilwording v. Swenson, 404 U.S. 240, 250 (1971) (per curiam) (state case law failed to indicate any available procedure to have claims heard); Matias v. Oshiro, 683 F.2d 318, 320 (9th Cir. 1982) (prisoner not required to bring second state post-conviction petition where district court found that state procedural rules apparently bar such actions).

Scott's contention that he has no available state remedy lacks merit, however, because there do appear to be avenues of collateral relief open in this case. Director, Nevada Department of Prisons v. Arndt, 98 Nev. 84, 640 P.2d 1318 (1982), does not appear to foreclose a habeas corpus claim because Scott is claiming an actual rather than a speculative loss of credits.¹ 

Scott also requested an injunction to bar prison officials from not applying good time credits to reduce the maximum term of his life sentence. Whatever the validity of Scott's requested injunction on its merits, it is clear that granting this injunction would act directly to reduce the future duration of his sentence. Thus, Scott's requested injunction would be improper under section 1983. See Wolff, 418 U.S. at 554 (only proper for district court to fashion remedies for constitutional violations which fall short of restoring good time already cancelled).

Under Wolff and Preiser, a district court may hear claims for damages under section 1983 for loss of good time credits while actual restoration of the credits is being sought in separate state proceedings. See Preiser, 411 U.S. at 499 n. 14; Wolff, 418 U.S. at 554-55. The basis for an award of damages under any section 1983 action is to compensate for actual injuries arising directly from the alleged violations of rights. See Jones v. Los Angeles Community College Dist., 702 F.2d 203, 207 (9th Cir. 1983).

Here, it appears that Scott has not suffered any injury. He concedes that retroactively granting him the requested credits would not lead to his immediate release. Thus, Scott does not complain that he is currently damaged by an illegal loss of liberty. Cf. Bergen v. Spalding, No. 87-4133, slip op. 8709, 8713 (9th Cir. Aug. 3, 1989) (prisoner's due process rights were violated when he was held past correct release date due to prior miscalculation of prison officials).

AFFIRMED.