Marshall Martinez v. Eric Penarosa, Warden Thomas Keller

91 F.3d 153, 1996 U.S. App. LEXIS 36941, 1996 WL 393687

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 15, 1996
• Docket: 96-15228
• Status: Unpublished

Opinion

91 F.3d 153

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Marshall MARTINEZ, Plaintiff-Appellant,
v.
Eric PENAROSA, Warden; Thomas Keller, Defendants-Appellees.

No. 96-15228.

United States Court of Appeals, Ninth Circuit.

Submitted July 9, 1996.*
Decided July 15, 1996.

Before: HUG, Chief Judge, and SCHROEDER and POOLE, Circuit Judges.

MEMORANDUM**

Marshall Martinez, a Hawaii state prisoner, appeals pro se the district court's order construing his 28 U.S.C. § 2254 habeas corpus petition as a civil rights complaint, dismissing the complaint without prejudice pursuant to 28 U.S.C. § 1915(d), and granting him 30 days leave to amend the complaint. Because Martinez elected to stand on the complaint and appeal rather than amend, the district court's dismissal is a final appealable order. See WMX Technologies, Inc. v. Miller, 80 F.3d 1315, 1318 (1996). We affirm.

In his habeas petition, Martinez sought release from prison as a remedy for cruel and unusual punishment in the treatment of his glaucoma. Habeas is not available for review of the conditions of confinement. Crawford v. Bell, 599 F.2d 890, 891-92 & n. 1 (9th Cir.1979). Accordingly, we affirm the district court's decision to construe the habeas petition as a complaint pursuant to 42 U.S.C. § 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