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James A. Hand v. Young

filed*fn*: February 14, 1994.

JAMES A. HAND, PLAINTIFF-APPELLANT,
v.
LEWELLYN YOUNG, JUDGE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-92-00062-ECR. Edward C. Reed, Jr., District Judge, Presiding

Before: Schroeder, Canby and Wiggins, Circuit Judges.

MEMORANDUM

James A. Hand, a former Nevada state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 civil rights action. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 121 L. Ed. 2d 242, 113 S. Ct. 321 (1992), and we vacate and remand for further proceedings.*fn1

Hand filed his original complaint on January 29, 1992. Hand alleged that he was denied a jury trial on state criminal charges, was not allowed to confront witnesses against him, and was denied access to adequate legal materials or legal advice during his incarceration. In addition, Hand filed a motion or leave to proceed in forma pauperis on January 29, 1992. In this motion Hand indicated that he was no longer in prison as he "paroled" on October 28, 1991.

On January 29, 1992, the district court determined that Hand's complaint contained claims that fell within the core of habeas corpus.*fn2 Thus, prior to proceeding with the civil rights action, the court ordered Hand to complete a form so that the court could determine whether he had exhausted his state remedies pursuant to Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied, 498 U.S. 1126 (1991).

On February 28, 1992, Hand filed the completed exhaustion form with the district court. However, the court determined that Hand had not provided the necessary information. Accordingly, on March 3, 1992, the court served Hand with three copies of the exhaustion form and ordered him to complete one form for each of his three civil rights claims. On March 17, 1992, Hand filed three completed exhaustion forms with the court. On one of these forms he stated, "I am not in physical custody which is the essential statutory requirement for habeas jurisdiction."

On August 17, 1992, the district court determined that plaintiff had again failed to supply the requested information. Accordingly, the court ordered the dismissal of plaintiff's complaint for failure to comply with the court's orders. Hand timely appealed.

The district court may dismiss an action for failure to comply with any order of the court. See Fed. R. Civ. P. 41(b); Ferdik, 963 F.2d at 1260. The district court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous view of the facts. See United States v. Rahm, 993 F.2d 1405, 1410 (9th Cir. 1993); Faile v. Upjohn Co., 988 F.2d 985, 986-87 (9th Cir. 1993).

Here the district court erred in dismissing the complaint because the district court presumed that Hand had available state remedies to exhaust when the court ordered Hand to complete the exhaustion forms. Under Nevada law, however, when a person is seeking habeas relief, he or she must be in custody at the time the application for relief is made. See State v. Baliotis, 98 Nev. 176, 643 P.2d 1223, 1224 (1982) (per curiam) (explaining that custody is required for persons seeking post-conviction relief under former Nev. Rev. Stat. § 177.315);*fn3 Director, Nevada Dep't of Corrections v. Arndt, 640 P.2d 1318, 1319 (1982) (per curiam) (discussing custody requirements for persons filing habeas petitions under Nev. Rev. Stat. § 34.360). Thus, if Hand was not in custody, he would have no available state remedies to exhaust. See Baliotis, 643 P.2d at 1224.

Although Hand indicated to the district court that he was no longer incarcerated at the time he filed his complaint, the court failed to determine whether Hand was in custody.*fn4 Moreover, in response to the court's order regarding exhaustion, Hand stated that he was "not in physical custody" for habeas purposes. Thus, the district court erred because Hand's statement, if true, would satisfy the exhaustion requirement. See Young, 907 F.2d at 876-77; Baliotis, 643 P.2d at 1224. Accordingly, this case is remanded for a determination of Hand's custodial status and whether Hand has any available state remedies to exhaust. See Faile, 988 F.2d at 989; Baliotis, 643 P.2d at 1224.*fn5

VACATED AND REMANDED.

Disposition

VACATED AND ...


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