Opinion
No. C 04-0116 VRW (PR)
January 26, 2004
ORDER OF DISMISSAL (Doc # 2)
Plaintiff, a prisoner at Salinas Valley State Prison, has filed a pro se civil rights complaint under 42 U.S.C. § 1983 seeking "half-time" credits for time served "from 5/16/02 through today." He also seeks damages from prison officials at the California Rehabilitation Center in Norco, California ("CRC") on the ground that he was assaulted by another inmate while he was at CRC because prison officials were deliberately indifferent to his safety.
Plaintiff seeks to proceed in forma pauperis under 28 U.S.C. § 1915.
DISCUSSION
A. Standard of Review
Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief." Id. § 1915A(b). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir 1990).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v Atkins, 487 U.S. 42, 48 (1988).
B. Legal Claims
A parole or time credit claim that affects the legality or duration of a prisoner's custody, and a determination of which may result in entitlement to an earlier release, must be brought under habeas sections of Title 28 of the United States Code. See Calderon v. Ashmus, 523 U.S. 740, 747 (1998); Young v. Kenny, 907 F.2d 874, 876-78 (9th Cir 1990); see also Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir 2003) (implying that claim, which if successful would "necessarily" or "likely" accelerate the prisoner's release on parole, must be brought in a habeas petition). Plaintiff's request for "half-time" credits accordingly is DISMISSED without prejudice to his bringing it in a petition for a writ of habeas corpus under 28 U.S.C. § 2254 after exhausting state judicial remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir 1995) (civil rights complaint seeking habeas relief should be dismissed without prejudice to bringing it as a petition for writ of habeas corpus).
Plaintiff's request for damages for deliberate indifference to his safety is DISMISSED without prejudice to his bringing it in a complaint under 42 U.S.C. § 1983 in the United States District Court for the Central District of California, Eastern Division, where venue properly lies. See In re Hall 939 F.2d 802, 804 (9th Cir 1991) (dismissal for improper venue must be without prejudice to refiling in proper court). A substantial part of the events or omissions giving rise to the claim occurred, and the defendants named in connection with the claim reside, in the County of Riverside, which lies within the venue of the Central District of California, Eastern Division. See 28 U.S.C. § 84(c)(1). Venue therefore properly lies in the Central District of California, Eastern Division. See id § 1391(b).
CONCLUSION
For the foregoing reasons, plaintiff's request to proceed in forma pauperis (doc # 2) is DENIED and the complaint is DISMISSED without prejudice.
The Clerk shall close the file and terminate all pending motions as moot. No fee is due.
SO ORDERED.