McDonald v. Bates

MEMORANDUM ** Dennis W. McDonald appeals the district court’s sua sponte dismissal of his 28 U.S.C. § 2241 petition. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997), and we reverse and remand. McDonald filed his § 2241 petition, seeking release from prison in order to obtain medical treatment for his Hepatitis C. The district court sua sponte dismissed McDonald’s § 2241 petition, finding that because McDonald was not challenging the “legality or duration” of his confinement, his use of § 2241 was improper. The district court further found that because McDonald was challenging the “conditions of [his] confinement,” he could seek relief through a 28 U.S.C. § 1983 civil rights action. When a pro se habeas corpus petition may be fairly read to state a claim under the Civil Rights Act, it should be so construed. See Hansen v. May, 502 F.2d 728, 729-30 (9th Cir.1974); Galligher v. McCarthy, 470 F.2d 740, 741 (9th Cir.1972). Furthermore, courts have a duty to construe pro se pleadings liberally. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir.2001) (internal quotation marks and citations omitted). We therefore reverse and remand to the district court with instructions to construe McDonald’s petition as a § 1983 complaint and to proceed accordingly. See Hansen, 502 F.2d at 729-30; Galligher, 470 F.2d at 741. We express no opinion on the merits of McDonald’s § 1983 action. REVERSED and REMANDED. Footnotes [**] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.