FILED
NOT FOR PUBLICATION MAY 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONNIE ANGEL ALCALA, No. 09-16211
Petitioner - Appellant, D.C. No. 1:08-cv-01676-DLB
v.
MEMORANDUM*
HECTOR RIOS, Warden; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding
Submitted May 9, 2011**
San Francisco, California
Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
Because the parties are familiar with the factual and procedural history of
this case, we do not recount additional facts except as necessary to explain the
decision. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We affirm
in part, reverse in part, and remand to allow Alcala to amend his complaint.
The district court correctly concluded that Alcala’s claims are not cognizable
under 28 U.S.C. § 2241 because they do not concern the fact or duration of his
confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Even giving
Alcala’s pro se complaint “the benefit of liberal construction,” Porter v. Ollison,
620 F.3d 952, 958 (9th Cir. 2010), the petition challenges the conditions of
confinement and therefore should have been brought as a civil rights action. See
Preiser, 411 U.S. at 489; see also 42 U.S.C. § 1983; Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395–97 (1971).
The district court erred, however, in failing to grant Alcala leave to amend
his complaint. “Leave to amend should be granted unless the pleading ‘could not
possibly be cured by the allegation of other facts,’ and should be granted more
liberally to pro se plaintiffs.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.
2003) (citation omitted). We therefore remand with instructions to allow leave to
amend.
2
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Each party shall bear its own costs on appeal.
3