Unpublished Disposition, 935 F.2d 273 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 273 (9th Cir. 1991)

Raymond CURRY, Plaintiff-Appellant,v.Kate FLACK, Deputy Prosecuting Attorney, acting in herofficial capacity, Timothy Sell, Attorney acting in hisofficial capacity, Ronald Abernathy, Attorney acting in hisofficial capacity, Rita Griffith, Attorney acting in herofficial capacity, Dorothy Stiles, Court Reporter, acting inher official capacity, Defendants-Appellees.

Nos. 90-35158, 90-35203.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided June 7, 1991.

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


MEMORANDUM** 

Raymond Curry appeals the district court's dismissal of his 42 U.S.C. § 1983 action against prosecutors, court personnel, and defense counsel. Curry also appeals the district court's denial of his motion for appointment of counsel. We vacate dismissal and remand.

Curry alleges that prosecutors, a court reporter, and his own defense counsel conspired to prevent a witness from testifying in his behalf. The conspiracy, Curry alleges, violated his constitutional right to a fair trial and to effective assistance of counsel. The district court dismissed the action as frivolous before service of the summons and complaint. We have jurisdiction to review an action dismissed, as here, without prejudice. Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), cert. denied, 470 U.S. 1007 (1985).

The district court concluded that Curry's Sec. 1983 complaint is frivolous and that the defendants are immune from suit. We must vacate the dismissal and remand for entry of a stay of Curry's Sec. 1983 action, however. We have recently ruled that where a prisoner's Sec. 1983 action challenges the fact or duration of incarceration, the federal district court should stay Sec. 1983 proceedings pending exhaustion of the prisoner's habeas corpus remedies. Young v. Kenny, 907 F.2d 874, 876, 878 (9th Cir. 1990). Federal courts should enter the stay even where the Sec. 1983 complaint does not on its face request invalidation or reduction of the sentence, but wherever, as here, "the requested relief requires as its predicate a determination that a sentence currently being served is invalid or unconstitutionally long." Id. at 876. Where a federal court's Sec. 1983 judgment "might preclude the state from relitigating the issue in a subsequent state habeas proceeding," entry of the stay is appropriate. Id.

In Curry's case, judgment on his Sec. 1983 action bears on any current or subsequent habeas proceeding. In essence, Curry's Sec. 1983 complaint alleges violation of his sixth amendment rights to a fair trial and to effective assistance of counsel. These allegations of constitutional violations directly bear on the validity of Curry's incarceration. Thus, though Curry prayed only for damages in his Sec. 1983 complaint, his complaint necessarily implicates habeas proceedings. In such circumstances, we reasoned in Kenny, "habeas must be the exclusive federal remedy...." Id.1 

We therefore vacate the district court's dismissal of Curry's Sec. 1983 action and remand for entry of a stay pending exhaustion of habeas remedies. Further, having concluded that federal court action on Curry's Sec. 1983 claim was inappropriate, we vacate the district court's denial of Curry's motion for appointment of counsel as well.

VACATED and REMANDED.

 *

The panel unanimously agress that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 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

Because of our disposition, we do not reach the merits of the appeal. We do not vacate dismissal of a potentially frivolous suit lightly, however. We note that, in piercing the factual allegations of Curry's complaint, the district court relied on a selective reading of Curry's superfluous "Memorandum in Support" of his complaint. A reading of that Memorandum in its entirety raises the possibility Curry could prove facts in support of his claims. Accordingly, while Curry's allegations may ultimately prove insubstantial against the defendants' qualified immunity, Curry's complaint is not demonstrably frivolous. We therefore need not decide whether a stay pending exhaustion of state remedies is required either in a demonstrably frivolous suit or in a suit against clearly immune defendants