OpenJurist

849 F2d 606 Milby v. House Speaker Nc General Assembly

849 F.2d 606
Unpublished Disposition

Zebedee MILBY, Plaintiff-Appellant,
v.
HOUSE SPEAKER, N.C. GENERAL ASSEMBLY; Lacy Thornburg;
Aaron Johnson; Bruce Briggs; David Kavasow;
Hazel W. Keith, Defendants-Appellees.

No. 87-6647.

United States Court of Appeals, Fourth Circuit.

Submitted: March 30, 1988.
Decided: June 14, 1988.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Zebedee Milby, appellant pro se.

Before JAMES DICKSON PHILLIPS, ERVIN and CHAPMAN, Circuit Judges.

PER CURIAM:

1

Zebedee Milby, a North Carolina inmate, filed simultaneous civil rights and habeas corpus actions seeking to pose a constitutional challenge to North Carolina's parole eligibility law, N.C.Gen.Stat. Sec. 15A-1371 (1977). The district judge, after reviewing both papers, dismissed the civil rights complaint in favor of addressing the merits of Milby's claim in the habeas corpus petition. Milby appeals from the dismissal of the civil rights complaint.

2

We find no error in the district court's decision to dismiss this complaint. Milby's papers, submitted to the district court and to this Court on appeal, show that he is, in essence, seeking eligibility for a quicker release from prison by attacking the statutes under which individual parole decisions are made. Milby seeks as relief not damages, but "particularized habeas corpus relief." The district court properly found "that the core of [Milby's] claim, though cast in Sec. 1983 terms, is cognizable only in [the] habeas action." Leonard v. Hammond, 804 F.2d 838, 843 (4th Cir.1986).

3

The district court's dismissal order did not, however, reflect that dismissal of the action was without prejudice to Milby's pursuit of these claims under the proper statute. We accordingly modify the district court's order, pursuant to 28 U.S.C. Sec. 2106, to show that the complaint is dismissed without prejudice.

4

The district court's judgment is affirmed as modified. We grant leave to proceed in forma pauperis, and dispense with oral argument because the facts and legal arguments are adequately presented in the record and Milby's submissions on appeal.

5

AFFIRMED AS MODIFIED.