Alcala v. Rios

Full title: Jonnie Angel ALCALA, Petitioner-Appellant, v. Hector RIOS, Warden; et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: May 25, 2011

434 F. App'x 668 (9th Cir. 2011)

Opinion

No. 09-16211.

Submitted May 9, 2011.^_

_ The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed May 25, 2011.

Jonnie Angel Alcala, Atwater, CA, pro se.

Federal Bureau of Prisons, U.S. Department of Justice, Stockton, CA, Jesse Gonzalez, Atwater, CA, Mark J. Mckeon, Esquire, Assistant U.S. Attorney, Office of the U.S. Attorney, Fresno, CA, for Respondents-Appellees.

Appeal from the United States District Court for the Eastern District of California, Dennis L. Beck, Magistrate Judge, Presiding. D.C. No. 1:08-cv-01676-DLB.

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.^__

__ The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.

MEMORANDUM^___

___ This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Because the parties are familiar with the factual and procedural history of this case, we do not recount additional facts except as necessary to explain the decision. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We affirm in part, reverse in part, and remand to allow Alcala to amend his complaint.

The district court correctly concluded that Alcala's claims are not cognizable under 28 U.S.C. § 2241 because they do not concern the fact or duration of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Even giving Alcala's pro se complaint "the benefit of liberal construction," Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010), the petition challenges the conditions of confinement and therefore should have been brought as a civil rights action. See Preiser, 411 U.S. at 489, 93 S.Ct. 1827; see also 42 U.S.C. § 1983; Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The district court erred, however, in failing to grant Alcala leave to amend his complaint. "Leave to amend should be granted unless the pleading `could not possibly be cured by the allegation of other facts,' and should be granted more liberally to pro se plaintiffs." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003) (citation omitted). We therefore remand with instructions to allow leave to amend.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Each party shall bear its own costs on appeal.