Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 889 F.2d 1096 (9th Cir. 1989)

Joseph Francis SALERNO, Plaintiff-Appellant,v.Rose MOFFORD, Governor; Evan Mecham, Former Governor, etal., Defendants-Appellees.

No. 88-15150.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1989.* Decided Nov. 21, 1989.

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


Appellant Salerno, an Arizona state prisoner, filed pro se a 42 U.S.C. § 1983 action in district court, alleging that the Arizona Department of Corrections incorrectly computed his good-time credits. Salerno claims that he would be required to serve less time in prison if the good-time credits had been correctly applied to his sentence. Among other things, Salerno seeks recomputation of his good-time credits and damages. After first determining that Salerno's action is cognizable only upon application of writ of habeas corpus, the district court then dismissed Salerno's action because he failed to exhaust state remedies. Salerno now appeals pro se from the district court's judgment.

* When a state prisoner challenges the fact or duration of his confinement his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 489-90 (1973). The district court therefore did not err in concluding that Salerno's action requesting the recomputation of his good-time credits could be brought to federal court only in a habeas corpus petition.

A habeas corpus petitioner must first exhaust state remedies. Rose v. Lundy, 455 U.S. 509, 515 (1982). Salerno's argument that Arizona state courts do not have the power to review decisions of the Arizona Department of Corrections appears meritless. See, e.g., Arizona v. Valenzuela, 144 Ariz. 43, 695 P.2d 732 (1985) (Arizona state court reviewing the Department of Corrections' decision concerning good-time credits).

However, dismissal of Salerno's action is inappropriate under a recent Ninth Circuit case. In Young v. Kenny, No. 88-3995, slip op. at 12605 (9th Cir. Oct. 11, 1989), this court considered what the appropriate district court action should be when a state prisoner files a section 1983 complaint for damages alleging that state officials have unconstitutionally failed to apply good-time credits to his prison sentence. After determining that Young could proceed in federal court solely by petitioning for a writ of habeas corpus, we noted that Young's habeas petition, as in this case, was premature because he did not exhaust state remedies. We then concluded that the district court should stay Young's section 1983 complaint for damages while the actual restoration of good-time credits is sought in state proceedings. Id. at 12612.

In light of Young, we therefore vacate the district court's order dismissing Salerno's action. The district court shall, instead, stay further proceedings on this section 1983 action to allow Salerno the opportunity to pursue his habeas corpus remedies.



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