Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1991)
Annotate this CaseJames W. SOMMERVILLE, Plaintiff-Appellant,v.Carol SPELL, Defendant-Appellee.
No. 90-15026.
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 11, 1990.* Decided March 25, 1991.
Appeal from the United States District Court for the District of Nevada; No. CV-N-89-0728-ECR, Edward C. Reed, Jr., District Judge, Presiding.
D. Nev.
AFFIRMED.
Before POOLE, CANBY and DAVID R. THOMPSON, Circuit Judges.
MEMORANDUM**
Rodney Creswell and James Sommerville appeal the judgment of the district court dismissing their action prior to service. Creswell's appeal is not properly before us because he did not sign the notice of appeal. See Carter v. C.I.R., 784 F.2d 1006, 1008 (9th Cir. 1986). We therefore dismiss Creswell's appeal. Sommerville's appeal we affirm.
DISCUSSION
Creswell and Sommerville, prisoners in a Nevada state prison, filed this pro se action pursuant to 42 U.S.C. § 1983, alleging that the action of the Nevada prison authorities in denying them good time credits denied them their federal constitutional rights. The district court dismissed their claim as frivolous prior to service of their complaint on defendants because it failed to allege facts supporting a proper Section 1983 claim, as opposed to mere conclusions. Further, the court reasoned that the complaint essentially stated a claim for habeas corpus relief, citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (habeas corpus the exclusive remedy for a prisoner seeking reduction in length of confinement).
The district court declined to convert this action from a section 1983 action into an action in habeas corpus, because of the higher state remedy exhaustion requirement imposed by the latter. Patsy v. Florida Board of Regents, 457 U.S. 496 (1982). Because the complaint did not allege, nor did the record reveal, exhaustion of state remedies, the district court dismissed without prejudice to the bringing of a habeas petition. The district court explicitly informed the appellants that this dismissal did not preclude them from filing a proper habeas petition.
On appeal, Sommerville raises no issues directly addressing the basis of the district court's dismissal. Rather, he urges again the merits of the complaint--in similarly conclusory fashion. We adopt the well-reasoned decision of the district court.
Creswell's appeal is dismissed.
The district court's dismissal of Sommerville's appeal is affirmed.
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