850 F. 2d 688 - Bruce v. Commonwealth of Virginia

Virginia inmate Robert L. Bruce, Sr. filed a complaint in which he appeared to challenge conditions at Powhatan Correctional Center, his not having been given a permanent assignment at the Staunton Correctional Center, the calculation of his parole eligibility date and the determination that he is a recidivist under Virginia law. A magistrate continued the action for 90 days pending Bruce's demonstration of administrative exhaustion. 42 U.S.C. Sec. 1997e. When Bruce failed to make the necessary demonstration, the district court dismissed the action without prejudice. Bruce appeals.

To the extent that the complaint raises claims that attack the fact or length of confinement, we note that these claims sound in habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475 (1973). Bruce first must exhaust state remedies before proceeding in federal court under 28 U.S.C. Sec. 2254.* See Strader v. Garrison, 571 F.2d 1263 (4th Cir.1978). As there has been no showing of exhaustion of state remedies, dismissal of these claims without prejudice was proper.

The dismissal of the 42 U.S.C. Sec. 1983 claims was not an abuse of the district court's discretion. Accordingly, we affirm the dismissal of those claims. As the dispositive issues recently have been decided authoritatively, we dispense with oral argument.

AFFIRMED.