Opinion
1:13-cv-00078-BAM PC
03-29-2013
DION DARYL WHEELWRIGHT, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
ORDER DENYING MOTION FOR A STAY
OR EXTENSION OF TIME FOR WRIT OF
HABEAS CORPUS
(ECF No. 8)
Plaintiff Dion Daryl Wheelwright ("Plaintiff") is a California state prisoner proceeding pro se and in forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. On March 21, 2013, Plaintiff filed a motion requesting a stay or an extension of time to file a habeas corpus petition. (ECF No. 8.)
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). Although the Court has not screened Plaintiff's case to determine whether dismissal is appropriate, it is apparent that Plaintiff's claim is a civil action seeking damages filed pursuant to 42 U.S.C. § 1983, not a petition for writ of habeas corpus.
If Plaintiff intends to file a petition challenging the legality or duration of his custody, or raises a constitutional challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny,907 F.2d 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Plaintiff may not pursue his writ of habeas corpus in this damages action. He must initiate a separate action. Accordingly, Plaintiff's request for a stay or for an extension of time to file a writ of habeas corpus in this case is DENIED. IT IS SO ORDERED.
Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE