446 F2d 647 Clark v. Carberry

446 F.2d 647

Herschel CLARK, Appellant,
v.
Matthew CARBERRY et al., Appellee.

No. 71-1071.

United States Court of Appeals, Ninth Circuit.

July 29, 1971.

Herschel Clark, in pro. per.

James C. Purcell, Thomas M. O'Connor, City Atty., San Francisco, Cal., for appellee.

Before MERRILL, KOELSCH and CHOY, Circuit Judges.

PER CURIAM.

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1

The district court dismissed plaintiff's aciton on the grounds that the issues tendered in the complaint were ones which 'should be raised by habeas corpus and not through the invocation of the federal civil rights statutes.' Plaintiff has appealed.

2

Although plaintiff is a prisoner representing himself, his complaint contains allegations which unmistakably show that the sole relief he seeks is money damages, not habeas corpus. The two remedies are not, as the court below erroneously concluded, mutually exclusive.

3

The judgment is vacated and the matter is remanded to the district court for further proceedings consistent with this opinion.