OpenJurist

899 F2d 1224 Doganiere v. Thornburgh US

899 F.2d 1224

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Michael G. DOGANIERE, Petitioner-Appellant,
v.
Richard THORNBURGH, U.S. Attorney General; Federal Bureau
of Prisons; Robert Moore; Washington Department
of Corrections, Respondents-Appellees.

No. 88-4360.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 23, 1990.*
Decided April 10, 1990.

Before KOELSCH, CHOY and BEEZER, Circuit Judges.

1

MEMORANDUM**

2

Michael G. Doganiere is a federal prisoner boarded at a state correctional facility. He appeals pro se the district court's dismissal of his 28 U.S.C. Sec. 2241 habeas corpus petition in which he claimed he was denied the right to a parole hearing and the conditions at the state prison discriminate against federal prisoners. The district court dismissed the petition becasue Doganiere's parole hearing claim was premature and the remainder of his claims failed to state a claim cognizable under 28 U.S.C. Sec. 2241. We affirm in part, and reverse and remand in part.

A. Parole Hearing

3

Doganiere claims he was denied a parole hearing because he was denied the opportunity to review his full file and only one representative of the parole board was available at the state facility. However, Doganiere apparently made these claims before any hearing regarding his eligibility for parole. Because Doganiere cannot claim that parole rules have been violated until a parole hearing has been scheduled, his complaint is not ripe for judicial review. See Standard Alaska Production Co. v. Schaible, 874 F.2d 624, 627 (9th Cir.1989). Moreover, because Doganiere may challenge any violation of parole rules at the time of his parole hearing, our withholding of consideration of this claim will not cause undue hardship. See id. Therefore, the district court was correct in determining this claim was presented prematurely.

B. Conditions of Confinement

4

The district court relied on Crawford v. Bell, 599 F.2d 890 (9th Cir.1979) in dismissing Doganiere's claims challenging the conditions of his confinement. However, there are several compelling reasons to not apply Crawford to the present case.

5

First, the facts of Crawford are distinguishable from the present case. In Crawford, the petitioner filed a combined civil rights complaint and petition for a writ of habeas corpus. Crawford, 599 F.2d at 891. Therefore, although the court dismissed the petition for habeas relief, it was still able to rule on Crawford's challenges to the conditions of his confinement in his civil rights complaint. Id. at 893. Conversely, in the present case, the district court's dismissal of Doganiere's habeas petition precluded a ruling on Doganiere's constitutional claims.1

6

Second, the Crawford case appears to be inconsistent with Supreme Court cases implying that habeas corpus may be a proper avenue to challenge the conditions of prisoner's confinement. In Preiser v. Rodriguez, 411 U.S. 475, 499 (1973), the court noted "[w]hen a prisoner is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal." Moreover, in Wilwording v. Swenson, 404 U.S. 249 (1971) the Court reversed the dismissal of the petitioners' complaint challenging the conditions of their confinement in a habeas petition. The Court held that petitioners were entitled to have their habeas action construed as a claim for relief under the Civil Rights Act because the pleadings could be read to state a deprivation of constitutional rights by prison officials. Id. at 251. See also Humphrey v. Cady, Warden, 405 U.S. 504, 516-517, n. 18 (1972) ("Moreover, some or all of petitioner's (habeas) claims may be entitled to be treated as claims for relief under the Civil Rights Act, 42 U.S.C. Sec. 1983, in which case no exhaustion is required. Wilwording v. Swenson, supra.").

7

We have followed Wilwording in Hansen v. May, 502 F.2d 728 (9th Cir.1974). In Hansen we reversed the dismissal of a pro se litigant's habeas petition, and held that, "[d]espite the labeling of his complaint, he was ... entitled to have his action treated as a claim for relief under the Civil Rights Act." Id. at 729-30. Hansen is slightly more compelling than the case at bar, since there the petitioner, although filing his complaint on a standard form habeas petition, did claim access to the district court on the basis of 42 U.S.C. Sec. 1883 (sic). Nonetheless, Hansen should control the present case.

8

Further, this court affords liberal treatment to pro se pleadings. We have held that courts must provide a pro se litigant with notice of the deficiencies in his complaint before dismissal for failure to state a claim. Noll v. Carlson, 809 F.2d 1446 (9th Cir.1987). See also Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621 (9th Cir.1988) (reversing and remanding district court's dismissal of civil rights action so that pro se petitioner could amend his pleadings following the district court's instruction as to the deficiencies therein); Bretz v. Kelman, 773 F.2d 1026, 1027, n. 1 (9th Cir.1985) (construing a Sec. 1983 complaint as one alleging a cause of action under Sec. 1983 and Sec. 1985).

9

Thus, the district court should have given Doganiere notice of the deficiency in his complaint with leave to amend. This is especially the case if Doganiere would be prejudiced by having to refile the claim as a section 1983 or a Bivens action. See generally Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Despite the fact that petitioner has filed a habeas petition, the substance of petitioner's complaint challenging the conditions of confinement appears to be a civil rights action which would require a liberal reading.

10

The district court's dismissal of Doganiere's challenge to the conditions of confinement is reversed and the case remanded. The parties shall bear their own costs on this appeal.

11

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and 9th Cir.R. 34-4

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The Government argues that Doganiere could not prove any prejudice by having to refile under section 1983 or Bivens. However, the statute of limitation period may expire during this period and Doganiere would be precluded from obtaining relief. See Young v. Kenny, 887 F.2d 237, ---- (9th Cir.1989) (district court should stay, rather than dismiss, section 1983 complaint while petitioner exhausts state remedies to pursue habeas relief)