Unpublished Disposition, 899 F.2d 1224 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1224 (9th Cir. 1990)

Bruce L. FRANZEN, Plaintiff-Appellant,v.Robin Anne WRIGHT, et al., Defendants-Appellees.

No. 89-15259.

United States Court of Appeals, Ninth Circuit.

Submitted March 26, 1990.* Decided April 3, 1990.

Before FLETCHER, LEAVY and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Bruce L. Franzen, a Nevada state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action. We vacate the district court's order of dismissal.

Franzen filed this section 1983 complaint alleging that a state court judge, the state attorney general's office, and the county district attorney's office violated various constitutional rights in his criminal and post-conviction proceedings. He seeks release from prison and damages.1  The district court dismissed the action as frivolous under 28 U.S.C. § 1915(d) because Franzen failed to state a factual basis for relief, and also construed the complaint as a habeas petition and dismissed it for failure to exhaust state remedies.

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). When a prisoner files a section 1983 complaint that seeks relief available only by habeas corpus, the district court should construe the complaint to that extent as a habeas petition and require exhaustion of state remedies. Franklin v. Oregon, 662 F.2d 1337, 1347 n. 13 (9th Cir. 1981); see Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681-82 (9th Cir. 1984).

A prisoner may bring a section 1983 action for damages arising from facts that also support a habeas corpus challenge. Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974). Nevertheless, when a prisoner's section 1983 action requires the court to determine as a predicate to the relief being sought that the sentence being served is invalid, the prisoner must first try these issues in a habeas proceeding. Federal habeas proceedings require exhaustion of state remedies. Young v. Kenny, 887 F.2d 237, 240 (9th Cir. 1989). The district court should stay, rather than dismiss, the claim for damages to prevent the statute of limitations from barring the claim after state remedies are exhausted. Id.

Because a finding that Franzen's rights were violated apparently would require the federal court to determine that his detention was invalid, the district court correctly construed his complaint as a habeas petition requiring exhaustion of state remedies. See Preiser, 411 U.S. at 500; Ybarra, 723 F.2d at 681-82. Nevertheless, the district court's dismissal of the section 1983 claims was improper because the statute of limitations may expire while he exhausts his state remedies. See Young, 887 F.2d at 240.2  We therefore vacate the district court's dismissal order and instruct the court to stay federal proceedings while Franzen exhausts his state remedies. See id.

VACATED and REMANDED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

 1

Franzen's original complaint alleged claims against the judge and the state of Nevada. In response to the magistrate's initial report and recommendation, he filed an amended complaint, alleging claims only against the attorney general and district attorney. Subsequently, he asked the district court to strike the amended complaint and act only upon the first complaint. It is unclear whether the district court did this. Liberally construing Franzen's pleadings, we assume that Franzen intended to preserve all claims against all parties. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). In any event, in both complaints he sought damages and release from prison, so our analysis applies equally to both complaints

 2

Although the district court found the section 1983 complaint to be frivolous because Franzen made only conclusory allegations, dismissal as frivolous is proper only if the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). Although Franzen's complaint may not state a claim, the district court must afford the pro se plaintiff notice of the deficiencies of the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies of the complaint cannot be cured. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). Here, Franzen may be able to cure the deficiencies of his complaint by amendment, and thus dismissal of his complaint as frivolous is inappropriate