Peinado v. Adult Authority of Department of Corrections

Decision Date05 February 1969
Docket NumberNo. 22843.,22843.
PartiesLorenzo PEINADO, Appellant, v. ADULT AUTHORITY OF the DEPARTMENT OF CORRECTIONS; State of California; John Doe, Chairman of the Adult Authority, and Walter E. Craven, Warden at Folsom State Prison, Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Lorenzo Peinado, in pro. per.

Thomas C. Lynch, Atty. Gen., Sacramento, Cal., for appellees.

Before POPE, HAMLEY and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge:

Lorenzo Peinado, a California state prisoner convicted in 1963 of violating state narcotics laws, tendered in the district court a complaint invoking the Civil Rights Act. Named as defendants were the California Adult Authority, "John Doe," Chairman of the Authority, and Walter E. Craven, Warden of Folsom State Prison. At the time of tendering his complaint, Peinado sought permission under 28 U.S.C. § 1915 (1964), to proceed in forma pauperis. The district court denied the motion, holding in effect that the action is frivolous within the meaning of 28 U.S.C. § 1915(d). This appeal followed.

In his complaint Peinado sought to state three claims. One was based on his allegations that in connection with a prison disciplinary proceeding on charges that he had pushed or shoved a prison officer, the discipline committee refused to call two witnesses who, Peinado alleged, would have substantiated his denial of the charge. The committee, plaintiff alleged, found him guilty on that charge and ordered him to serve ten days in isolated confinement and deprived him of "privileges" for thirty days.

The second claim was that he was denied parole because of the disciplinary charge, and that the Adult Authority disregarded his contention that the two witnesses he had desired to call would have established that he was not guilty of the charge. In this connection Peinado also alleged that, in two hearings before the Adult Authority, the chairman asked Peinado to admit his guilt, but he refused.

The third claim sought to be stated in the complaint is that section 11501 of the California Health and Safety Code, prescribing the sentence for a first narcotics law offender to be five years to life and specifying a minimum term of three years, is unconstitutionally vague.

The relief sought by Peinado was "permanent injunctive relief" and release from custody. He did not seek monetary damages.

The district court held that the action should be dismissed because the relief Peinado is actually seeking is release from custody and such relief cannot be obtained in a civil rights action. The district court further held that the complaint could not be treated as an application for a writ of habeas corpus because there was no allegation that Peinado had exhausted his state remedies, and for the additional reason that Peinado did not use the habeas corpus application form required by the local rules of the district court.

In his opening brief on appeal Peinado did not discuss the above-described grounds for denial relied upon by the district court. He did so, however, in his reply brief. He there argues, in effect, that apart from release from custody, he is seeking judicial assistance to compel the prison authorities to accord him the assertedly constitutional right to call witnesses in his...

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15 cases
  • Miller v. Rockefeller, 70 Civ. 2647.
    • United States
    • U.S. District Court — Southern District of New York
    • March 8, 1971
    ...but only by resort to habeas corpus. See, e. g., Martin v. Roach, 280 F.Supp. 480 (S.D.N.Y.1968); Peinado v. Adult Authority of Department of Corrections, 405 F.2d 1185 (9th Cir. 1969); Johnson v. Walker, 317 F.2d 418 (5th Cir. 1963). In the instant action plaintiffs not only charge unconst......
  • Sostre v. McGinnis
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 24, 1971
    ...§ 2254(b), (c). Cf. Smartt v. Avery, 411 F.2d 408 (6th Cir. 1967); Kalec v. Adamowski, 406 F.2d 536 (7th Cir. 1969); Peinado v. Adult Auth., 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 (1969); Johnson v. Walker, 317 F.2d 418, 419-420 (5th Cir. 1......
  • Preiser v. Rodriguez 8212 1369
    • United States
    • U.S. Supreme Court
    • May 7, 1973
    ...habeas corpus. '(R)elease from penal custody is not an available remedy under the Civil Rights Act.' Peinado v. Adult Authority, of Dept. of Corrections, 405 F.2d 1185, 1186 (9th Cir.), cert. denied, 395 U.S. 968, 89 S.Ct. 2116, 23 L.Ed.2d 755 (1969). In Johnson v. Walker, 317 F.2d 418, 419......
  • Edwards v. Schmidt
    • United States
    • U.S. District Court — Western District of Wisconsin
    • January 5, 1971
    ...habeas suits and extraordinary prisoner suits,1 courts have invoked the circumvention rule. Peinado v. Adult Authority of the Department of Corrections, 405 F.2d 1185 (9th Cir. 1969), and United States ex rel. Hunter v. Bibb, 249 F.2d 839 (7th Cir. In Peinado, the state prisoner claimed a v......
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