                                                                           FILED
                             NOT FOR PUBLICATION                            APR 15 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



CHRISTOPHER ISAAC SIMMONS,                       No. 08-15143

               Petitioner - Appellant,           D.C. No. 07-cv-01058-LJO

  v.

ANTHONY HEDGPETH,                                MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       California state prisoner Christopher Isaac Simmons appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Simmons contends the district court erred by dismissing his habeas petition

rather than construing it as a civil rights complaint pursuant to 42 U.S.C. § 1983.

When a pro se habeas corpus petition may be fairly read to state a claim under the

Civil Rights Act, it should be so construed. See Galligher v. McCarthy, 470 F.2d

740, 741 (9th Cir. 1972). Accordingly, Simmons’ habeas petition is to be treated

as a § 1983 complaint. See id. We remand for further proceedings consistent with

this disposition. See id.

      We express no opinion on the merits of Simmons’ § 1983 action.

      REVERSED; REMANDED.




                                          2                                    08-15143
