Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1990)

MEMORANDUM^** 

John Bertram, a California state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 complaint. We vacate the district court's order of dismissal.

Bertram was convicted after a jury trial of child molestation. He filed this section 1983 complaint alleging that agents for the County of Los Angeles conspired to misrepresent documents, falsify reports, and suppress favorable evidence for the purpose of convicting him. The district court dismissed the complaint as frivolous under 28 U.S.C. § 1915(d). The district court also construed the complaint as a habeas petition, and because Bertram failed to allege exhaustion of state remedies, dismissed the petition under 28 U.S.C. § 2243.

When a state prisoner challenges the fact or duration of his confinement, his exclusive federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, when a prisoner 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 petition. Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981). If the prisoner has failed to exhaust his state remedies before requesting relief in the federal courts, the district court should dismiss the habeas claims. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984). However, the district court should stay, rather than dismiss, a prisoner's claim for damages while the prisoner exhausts his state remedies. Young v. Kenny, 887 F.2d 237, 240 (9th Cir. 1989). A stay is appropriate to prevent the statute of limitations from barring the prisoner's damage action in the future. See id.

Although Bertram's complaint does not explicitly seek release from confinement and instead, seeks only damages, he nevertheless claims that his trial was unfair. Because a finding that his trial was unfair would show that Bertram's release was required, the district court was correct in construing the complaint as containing habeas claims. See Preiser, 411 U.S. at 500. Moreover, because Bertram did not allege that he exhausted his state remedies, the district court properly refused to grant relief. See Ybarra, 723 F.2d at 681-82. Yet, the statute of limitations may expire on Bertram's claim for damages while he exhausts his state remedies. See Young, 887 F.2d at 240.¹  We therfore vacate the district court's dismissal order, and instruct the court to stay federal proceedings while Bertram pursues state remedies. See id.

VACATED and REMANDED.