The opinion of the court was delivered by: QUACKENBUSH
QUACKENBUSH, District Judge.
Pending in the above entitled matter is defendants' Motion to Dismiss. Plaintiff in this § 1983 action challenges approximately thirty-three (33) separate "infractions" he has received for violation of prison rules while incarcerated at the Washington State Penitentiary over the past five years. Plaintiff purports to state a claim under 42 U.S.C. § 1983 by alleging that infractions failed to comply with the requirements of state regulations, thereby depriving him of due process of law under Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Apparently, plaintiff challenges the adequacy of each proceeding against him, dating back to 1977 when he was first incarcerated. Although the pleadings submitted by a pro se litigant are entitled to a liberal construction, plaintiff in this complaint does not allege that defendants' published hearing procedures are inadequate. See Washington Administrative Code (WAC) Ch. 275-88. Instead plaintiff complains that those procedures were not followed in his case. Plaintiff seeks relief in the form of a declaratory judgment that defendants' practices denied him due process, a prospective injunction against continuation of these practices, retrospective relief setting aside the disciplinary actions taken against him, and damages.
In this Motion to Dismiss, defendants contend that since plaintiff is seeking the restoration of "good time" credits, he is, in effect, seeking a judgment that would shorten the term of his confinement. As such, defendants contend the plaintiff's claims fall "within the core of habeas corpus", Preiser v. Rodriguez, 411 U.S. 475, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973), and must be dismissed under Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982) as an unexhausted petition for federal habeas relief. Alternatively, defendants contend that even if an application of the holding in Preiser v. Rodriguez, supra, is not dispositive of each of the claims set forth in the instant complaint, plaintiff's complaint should be dismissed in its entirety in light of congressional intent in enacting the habeas and civil rights statutes, state-federal comity, and the policy of avoiding a multiplicity of litigation. In addition, defendants assert that as a result of the holding in Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir.1981), this court is bound to apply the rationale set forth in Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), not only to negligent deprivations of property without due process but also to intentional deprivations of liberty.
By way of this motion, defendants charge the court with the difficult task of harmonizing Preiser v. Rodriguez, supra, with Wolff v. McDonnell, supra. While such a task is perhaps best left to those far removed from the front lines of prisoner litigation, given the relative dearth of appellate clarification in this area, lower federal courts in this Circuit have been compelled to hone their own views with the few substantive tools which have been provided.
Generally, in civil rights actions
the exhaustion of state remedies is not a prerequisite to the commencement of an action in federal court. Cf. Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982). As the Court stated in Monroe v. Pape, 365 U.S. 167, 183, 81 S. Ct. 473, 482, 5 L. Ed. 2d 492 (1961), "The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is involved."
Unlike the rule normally applicable to claims pursued under § 1983, the general rule in habeas corpus actions requires that state judicial remedies be exhausted prior to seeking relief in the federal forum.
This "exhaustion requirement" is compelled by the underlying doctrine of comity between state and federal judicial systems. The doctrine of comity, compelled by the "exigencies of federalism," dictates that a federal court "defer action on a case properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Fay v. Noia, 372 U.S. 391, 415, 420, 83 S. Ct. 822, 839, 9 L. Ed. 2d 837 (1963), quoting Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 590, 94 L. Ed. 761 (1950).
In Preiser v. Rodriguez, supra, the Court carved out an exception to the general rule that the exhaustion requirement was not to be applicable to civil rights actions. The Court there held that where suits for equitable relief under § 1983 would, because of the overlap in the scope of § 1983 and habeas corpus,
fall "within the core of habeas corpus" (defined as a "challenge to the fact or duration of . . . confinement, 411 U.S. at 489, 93 S. Ct. at 1836), the exhaustion requirement of habeas must not be circumvented. The Court stated:
Even if restoration of respondents' goodtime credits had merely shortened the length of their confinement, rather than requiring immediate discharge from that confinement, their suits would still have been within the core of habeas corpus in attacking the very duration of their physical confinement itself.
411 U.S. at 487, 93 S. Ct. at 1835. The Court further stated:
It would wholly frustrate the explicit congressional intent to hold that the respondents in the present case could evade [exhaustion of state remedies] by the simple expedient of putting a different label on their pleadings.
411 U.S. at 490, 93 S. Ct. at 1836.
If a state prisoner is seeking damages, he is attacking something other than the fact of length of his confinement, and he is seeking something other than immediate or more speedy release -- the traditional purpose of habeas corpus. In the case of a damages ...