F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   SEP 25 2001
                                  TENTH CIRCUIT
                                                              PATRICK FISHER
                                                                        Clerk

 JIMMY LYN FARRELL,

               Plaintiff-Appellant,                     No. 01-7030
          v.                                          (E.D. Oklahoma)
 DELORES RAMSEY, Director of                     (D.C. No. 99-CV-569-X)
 Appeals, and DEPARTMENT OF
 CORRECTIONS,

               Defendants-Appellants.


                             ORDER AND JUDGMENT         *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Jimmy Lyn Farrell, a state prisoner proceeding pro se, filed suit against the

Oklahoma Department of Corrections (“ODOC”) and Delores Ramsey, the former

director of prisoner misconduct appeals at the ODOC, arguing that the defendants

violated his constitutional rights in violation of 42 U.S.C. § 1983. The district

court dismissed the suit as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), and

Mr. Farrell now appeals. For the reasons stated below, we reverse and remand.



                                          I.

      In his complaint, Mr. Farrell raised three claims against Ms. Ramsey and

the ODOC. All three claims related to the following facts alleged not only in the

complaint filed by Mr. Farrell on October 26, 1999, but also in the “supplemental

complaint,” which Mr. Farrell filed the next day.

      Mr. Farrell was charged by the ODOC with prison misconduct – more

specifically, for “bartering” his legal services to another inmate. For the prison

misconduct, Mr. Farrell was punished with fifteen days of lock-up, a loss of forty-

five days of earned credits, a $25 fine, and a reduction in his earned credit class

level (from Level 4 to Level 1). Mr. Farrell subsequently appealed the

determination of prison misconduct to Ms. Ramsey, the ODOC’s director of

prison misconduct appeals, but Mr. Farrell claims she did not respond within the

required fifteen-day period. See Rec. doc. 6, at 6 (supplemental complaint, filed


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Oct. 27, 1999) [hereinafter Supp. Complaint] (“She has denied the appeal but she

was still out of time by (5) days.”). According to Mr. Farrell, for Ms. Ramsey’s

failure to respond in a timely manner to his appeal, he should have been granted

“[m]y time back and level 4 and all fines they gave me.” Rec. doc. 2, at 6

(complaint, filed Oct. 26, 1999).

       In response, the defendants filed a “motion to dismiss/motion for summary

judgment.” Rec. doc. 19, at 1 (motion to dismiss or for summary judgment, filed

Apr. 25, 2000). The district court, taking into account both the defendants’ and

Mr. Farrell’s papers, as well as the Martinez report prepared by the ODOC,

dismissed the case as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b)(i). It noted

first that

       [t]o the extent plaintiff requests equitable relief in the form of earlier
       release from confinement, a § 1983 cause of action is not the
       appropriate means for seeking such relief. Rather, habeas corpus is the
       exclusive remedy for a state prisoner challenging the fact or duration of
       his confinement when the relief sought includes immediate or speedier
       release.

       Rec. doc. 30, at 2 (order, filed Mar. 5, 2001). The district court then

concluded that Mr. Farrell’s civil rights complaint was frivolous because it

contained only conclusory allegations.



                                          II.



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      We review the dismissal of a case pursuant to § 1915(e)(2)(B)(i) for an

abuse of discretion. See Schlicher v. Thomas, 

, 779 (10th Cir. 1997)

(applying abuse of discretion standard to dismissal under 28 U.S.C. § 1915(d),

now codified at § 1915(e)(2)(B)(i)). We begin our analysis of the case at bar by

recognizing, as did the district court, the Supreme Court’s holding in Preiser v.

Rodriguez, 

(1973) – namely, that, “when a state prisoner is

challenging the very fact or duration of his physical imprisonment, and the relief

he seeks is a determination that he is entitled to immediate release or a speedier

release from that imprisonment, his sole federal remedy is a writ of habeas

corpus.” 

(emphasis added). Under Preiser, Mr. Farrell should not have

filed a § 1983 claim to obtain the relief he desired but rather a petition for a writ

of habeas corpus.

      Nevertheless, pursuant to Haines v. Kerner , 

, 520-21 (1972)

(per curiam), a pro se litigant’s pleadings are to be liberally construed. See 

standard, we liberally construe Mr. Farrell’s civil rights complaint as a

habeas petition, especially because it was clear from his complaint and

supplemental complaint that he did not seek money damages but rather only relief

from the execution of his sentence. See Ellis-Bey v. Bruce, No. 97-3202, 

, at *1 n.1 (10th Cir. Jan. 29, 1998) (unpublished opinion) (“[T]he

district court properly construed [the plaintiff’s] request [filed pursuant to § 1983]


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as one for habeas relief under 28 U.S.C. § 2254 because his claim, at base,

challenges the duration of his confinement.”); see also Sapp v. Patton, 

, 463-64 (6th Cir. 1997) (construing a § 1983 claim as a habeas petition);

Trimble v. City of Santa Rosa, 

, 586 (9th Cir. 1995) (stating that,

“[i]n cases where a prisoner’s section 1983 complaint evinced a clear intention to

state a habeas claim, we have said that the district court should treat the

complaint as a habeas petition”); Bennett v. Allen, 

, 790 (9th Cir.

1968) (stating “that the [civil rights] complaint should properly have been treated

as a petition for habeas corpus” because the plaintiff was “seeking no damages,”

instead “request[ing] a declaration that his conviction was invalid and an

injunction restraining his further imprisonment”).

      Because Mr. Farrell challenges the execution of his sentence, and because

we determine the above authorities to be persuasive, we hold that we should

construe his pleadings as a habeas petition filed pursuant to 28 U.S.C. § 2241.

See Montez v. McKinna, 

, 865 (10th Cir. 2000). While § 2241 does

not require exhaustion of state remedies prior to filing a habeas petition, this

court has held that “federal courts should abstain from the exercise of [§ 2241]

jurisdiction if the issues raised in the petition may be resolved either by trial on

the merits in the state court or by other state procedures available to the

petitioner.” Capps v. Sullivan, 

, 354 n.2 (10th Cir. 1993) (internal


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quotation marks omitted); see also 

(“A habeas petitioner

is generally required to exhaust state remedies whether his action is brought under

§ 2241 or § 2254.”). We note, as did the defendants, that Mr. Farrell has not

demonstrated that he has exhausted his state remedies. See Aple’s Br. at 3. We

therefore VACATE and REMAND with instructions to the district court to

DISMISS the case without prejudice. 1



                                              Entered for the Court,



                                              Robert H. Henry
                                              Circuit Judge




      1
          Because we construe Mr. Farrell’s complaint as a petition filed pursuant
to § 2241, this court’s order of June 21, 2001 assessing fees is vacated. See Rec.
doc. 38, at 1.

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