Alan R. Dohner v. W.H. Seifert

5 F.3d 535, 1993 U.S. App. LEXIS 30755, 1993 WL 370840

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 22, 1993
• Docket: 92-55899
• Status: Published

Opinion

5 F.3d 535
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Alan R. DOHNER, Petitioner-Appellant,
v.
W.H. SEIFERT, Respondent-Appellee.

No. 92-55899.

United States Court of Appeals, Ninth Circuit.

Submitted June 11, 1993.*
Decided Sept. 22, 1993.

Before: KOZINSKI, SILER,** and KLEINFELD, Circuit Judges.

MEMORANDUM***

Pro se petitioner Alan R. Dohner appeals the dismissal of his habeas corpus petition. Dohner filed a habeas petition alleging that in-cell plumbing problems at the Metropolitan Detention Center in Los Angeles ("MDC") violated his Eighth Amendment rights. The district court dismissed the petition without prejudice, holding that a writ of habeas corpus cannot be used to attack conditions of confinement.

"[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement." Crawford v. Bell, 599 F.2d 890, 891 (9th Cir.1979) (citing Preiser v. Rodriguez, 411 U.S. 475, 484-86 (1973)). Furthermore, Mead v. Parker, 464 F.2d 1108 (9th Cir.1972), cited by Dohner, is inapposite because it involved denial of access to the courts. In sum, Dohner may not use a habeas petition to attack conditions of confinement.

The government argues that this case is moot because Dohner is no longer confined at MDC. However, because Dohner has a "reasonable expectation" of returning to MDC, his claim is not moot, Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991), and he may have a claim for damages or injunctive relief under 42 U.S.C. Sec. 1983.

AFFIRMED.

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

*** The Honorable Eugene E. Siler, United States Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation