Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

Norman E. TEDDER, Plaintiff-Appellant,v.Vernon FAATZ, et al., Defendants-Appellees.

No. 90-35563.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

Norman E. Tedder, an Oregon state prisoner, appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We affirm.

Tedder's complaint sought damages and injunctive relief against several members of the Oregon Board of Parole and a psychologist who evaluated Tedder and presented a report to the Board. Tedder alleged that the Board's decision to postpone his release on parole violated his constitutional rights, and he sought immediate release. The district court construed Tedder's complaint as a habeas petition and dismissed for failure to exhaust state remedies.

When a state prisoner challenges the fact or duration of his confinement and seeks a determination that he is entitled to immediate release from imprisonment, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Young v. Kenny, 907 F.2d 874, 876 (9th Cir. 1989) (habeas petition is the exclusive federal remedy "whenever the requested relief requires as its predicate a determination that a sentence currently being served is invalid or unconstitutionally long"), cert. denied, 111 S. Ct. 1090 (1991). State prisoners must exhaust available state remedies before bringing a federal habeas petition. 28 U.S.C. § 2254(b). Nevertheless, the district court should stay, rather than dismiss, a prisoner's claim for damages while the prisoner exhausts his state remedies. Young, 907 F.2d at 878.

Here, the district court properly construed Tedder's section 1983 complaint as a habeas petition because the complaint challenges the duration of his confinement. See Preiser, 411 U.S. at 500. Moreover, it is clear from the face of the complaint that Tedder has not exhausted his state remedies. Accordingly, the district court properly dismissed the action without prejudice and granted Tedder the right to reopen it after he has exhausted his state remedies. See Young, 907 F.2d at 878.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision 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