                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 25 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JONNIE ANGEL ALCALA,                             No. 09-16211

              Petitioner - Appellant,            D.C. No. 1:08-cv-01676-DLB

  v.
                                                 MEMORANDUM*
HECTOR RIOS, Warden; et al.,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Dennis L. Beck, Magistrate Judge, Presiding

                             Submitted May 9, 2011**
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
      Because the parties are familiar with the factual and procedural history of

this case, we do not recount additional facts except as necessary to explain the

decision. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We affirm

in part, reverse in part, and remand to allow Alcala to amend his complaint.

      The district court correctly concluded that Alcala’s claims are not cognizable

under 28 U.S.C. § 2241 because they do not concern the fact or duration of his

confinement. See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973). Even giving

Alcala’s pro se complaint “the benefit of liberal construction,” Porter v. Ollison,

620 F.3d 952, 958 (9th Cir. 2010), the petition challenges the conditions of

confinement and therefore should have been brought as a civil rights action. See

Preiser, 411 U.S. at 489; see also 42 U.S.C. § 1983; Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 395–97 (1971).



      The district court erred, however, in failing to grant Alcala leave to amend

his complaint. “Leave to amend should be granted unless the pleading ‘could not

possibly be cured by the allegation of other facts,’ and should be granted more

liberally to pro se plaintiffs.” Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir.

2003) (citation omitted). We therefore remand with instructions to allow leave to

amend.


                                          2
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

    Each party shall bear its own costs on appeal.




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