Clifford E. Osborn, Plaintiff-appellant, v. George Sumner, Warden & Director, Ndop; Walter Luster,warden, Sncc, Defendants-appellees, 892 F.2d 83 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 892 F.2d 83 (9th Cir. 1989)

Submitted Nov. 14, 1989. *Decided Dec. 12, 1989


Before JAMES R. BROWNING, FARRIS and WILLIAM A. NORRIS, Circuit Judges

MEMORANDUM** 

Clifford E. Osborn, a Nevada 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.

Because Osborn challenges the validity of his confinement, the district court properly construed the complaint as a petition for habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 499 n. 14 (1973); Young v. Kenny, No. 88-3995, slip op. at 12608 (9th Cir. Oct. 11, 1989). Because Osborn failed to exhaust his state remedies, as required for habeas corpus petitions, the district court properly determined that he could not seek relief in the federal courts. Ybarra v. Reno Thunderbird Mobil Home Village, 723 F.2d 675, 681 (9th Cir. 1984). The district court, however, erred in dismissing Osborn's action for damages rather than staying it until Osborn exhausts his state remedies. A stay is appropriate to prevent Nevada's two-year statute of limitations from barring Osborn's damages action in the future. See Nev.Rev.Stat. § 11.190(4) (e) (1987); Young, No. 88-3995, slip op. at 12612. Accordingly, the district court's order dismissing Osborn's complaint is vacated, and the district court is instructed to stay the action until Osborn has exhausted his state remedies. See Young, slip op. at 12612.

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The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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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 Circuit Rule 36-3