Roger Len Ervin, Plaintiff-appellant, v. Arnold Hopkins, Commissioner of Corrections; Ralph Packard,warden, Defendant-appellee, 829 F.2d 35 (4th Cir. 1987)

US Court of Appeals for the Fourth Circuit - 829 F.2d 35 (4th Cir. 1987)

Submitted June 18, 1987. Decided August 31, 1987

Roger Len Ervin, appellant pro se.

Before K.K. HALL, WILKINSON and WILKINS, Circuit Judges.

PER CURIAM:

Roger Len Ervin, presently confined at the Maryland House of Correction, filed suit under 42 U.S.C. § 1983, seeking two million dollars in compensatory and punitive damages on a claim of excessive imprisonment. The district court found that the core of Ervin's claim sounded in habeas and that exhaustion of state remedies was required. The district court dismissed Ervin's Sec. 1983 complaint and directed that the clerk send him the forms necessary to file a habeas corpus petition; these forms call for information from the petitioner on whether he has fully presented his claims to the state courts.

We agree with the district court that Ervin's claims challenge the length of his confinement and thus may not be pursued in federal court prior to exhaustion of state remedies. See Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Hamlin v. Warren, 664 F.2d 29 (4th Cir. 1981), cert. denied, 455 U.S. 911 (1982). We remand the case to the district court, however, for modification of the judgment to reflect that the dismissal was without prejudice. Because the dispositive issues recently have been decided authoritatively, we dispense with oral argument and affirm the judgment as modified.

REMANDED AND AFFIRMED AS MODIFIED.