Charles Wayne Johnson, Sr., Plaintiff-appellant, v. Frank A. Brown; Penelope Ann Lavenders; Susie Esqueda,defendants-appellees, 87 F.3d 1319 (9th Cir. 1996)

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U.S. Court of Appeals for the Ninth Circuit - 87 F.3d 1319 (9th Cir. 1996)

Submitted June 5, 1996. *Decided June 17, 1996

Before: BRUNETTI and RYMER, Circuit Judges, and TANNER,**  District Judge.


Johnson appeals the district court's dismissal of his 42 U.S.C. § 1983 action. Johnson's complaint sought three forms of relief, one monetary and two injunctive. In his reply brief, he withdraws his request for monetary damages and concedes that the remaining relief he seeks is injunctive. Thus we affirm the district court's dismissal with prejudice with respect to his prayer for damages.

A section 1983 claim is not the appropriate vehicle for Johnson to challenge his underlying state conviction and sentence by seeking injunctive relief. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) ("a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus ... he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge"); Fierro v. Gomez, 77 F.3d 301, 304 (9th Cir. 1996) ("an inmate must challenge the constitutionality of his conviction or sentence by means of a petition for writ of habeas corpus"), petition for cert. filed, (May 9, 1996). The district court dismissed the entire complaint with prejudice. While the requests for injunctive relief should be dismissed, the dismissal should be without prejudice. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). We therefore reverse this part of the district court's dismissal and remand so that an order dismissing without prejudice may be entered.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


Hon. Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3