87 F3d 1319 Johnson v. A Brown

87 F.3d 1319

Charles Wayne JOHNSON, Sr., Plaintiff-Appellant,
v.
Frank A. BROWN; Penelope Ann Lavenders; Susie Esqueda,
Defendants-Appellees.

No. 95-55582.

United States Court of Appeals, Ninth Circuit.

Submitted June 5, 1996.*
Decided June 17, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: BRUNETTI and RYMER, Circuit Judges, and TANNER,** District Judge.

MEMORANDUM***

Johnson appeals the district court's dismissal of his 42 U.S.C. § 1983 action. Johnson's complaint sought three forms of relief, one monetary and two injunctive. In his reply brief, he withdraws his request for monetary damages and concedes that the remaining relief he seeks is injunctive. Thus we affirm the district court's dismissal with prejudice with respect to his prayer for damages.

A section 1983 claim is not the appropriate vehicle for Johnson to challenge his underlying state conviction and sentence by seeking injunctive relief. Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) ("a state prisoner challenging his underlying conviction and sentence on federal constitutional grounds in a federal court is limited to habeas corpus ... he cannot bring a § 1983 action, even though the literal terms of § 1983 might seem to cover such a challenge"); Fierro v. Gomez, 77 F.3d 301, 304 (9th Cir.1996) ("an inmate must challenge the constitutionality of his conviction or sentence by means of a petition for writ of habeas corpus"), petition for cert. filed, (May 9, 1996). The district court dismissed the entire complaint with prejudice. While the requests for injunctive relief should be dismissed, the dismissal should be without prejudice. Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.1995). We therefore reverse this part of the district court's dismissal and remand so that an order dismissing without prejudice may be entered.

AFFIRMED in part, REVERSED in part, REMANDED.

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*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4

**

Hon. Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3