Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1095 (9th Cir. 1989)

Lemotna Renna McBROOM, Plaintiff-Appellant,v.CALIFORNIA BOARD OF PRISON TERMS; Ron Koieng, Chairman ofthe Board of Prison Terms, Defendants-Appellees.

No. 88-15404.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 25, 1989.* Decided Nov. 15, 1989.

Before ALARCON, O'SCANNLAIN and LEAVY, Circuit Judges.

MEMORANDUM** 

OVERVIEW

Lemonta Renna McBroom ("McBroom") appeals pro se the district court's grant of summary judgment in his 42 U.S.C. § 1983 action in favor of the Board of Prison Terms ("Board"). McBroom contends that the Board violated his constitutional rights by applying the California term setting policy in a discriminatory fashion. The district court held that McBroom's section 1983 claims were barred by res judicata in that those same claims were previously denied in a state habeas corpus proceeding. We vacate the judgment and remand.

DISCUSSION

Where a state prisoner challenges the fact or duration of his confinement, his sole federal remedy is a writ of habeas corpus. Young v. Kenny, No. 88-3995, slip op. 12605, 12607 (9th Cir. October 11, 1989) (citing Preiser v. Rodriguez, 411 U.S. 475, 489-90, 500 (1973)). In Young, this court held that a state prisoner must first exhaust his state habeas remedies before he may proceed with a section 1983 action.

McBroom challenges the fact and duration of his confinement in this section 1983 action. While he has exhausted his state habeas corpus remedies, he has not exhausted his habeas remedies in federal court. The federal district court's denial of his habeas petition is presently on appeal. Therefore, McBroom may not proceed with his section 1983 action until his federal appeal is finally concluded. Id.

Accordingly, the district court's judgment is vacated and the action is remanded with the directive that the section 1983 action be stayed pending a final determination of McBroom's federal habeas corpus petition.1 

VACATED AND REMANDED.

 *

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

We do not reach the question, heretofore not raised by either the parties or the district court, whether the defendants are proper parties under the eleventh amendment. See Pennhurst State & Hosp. v. Halderman, 465 U.S. 89 (1984). The district court may wish to consider this issue on remand

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