(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-9006
Summary Calendar
Kenneth Greg Russell,
Plaintiff-Appellant,
VERSUS
Terry McEachern, Et Al.,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
5:92 CV 244 C
April 26, 1993
Before THORNBERRY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
THORNBERRY, Circuit Judge*:
Pro se prisoner filed a civil rights action alleging that his
constitutional rights were violated during the investigation and
prosecution leading to his conviction. The district court
dismissed the action for failure to state a claim; however, the

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1Russell was granted in forma pauperis status.
court failed to give reasons for that conclusion. For the
following reasons, we remand this case to the district court to
proceed in a fashion consistent with this opinion.
Facts and Prior Proceedings
Texas prisoner Kenneth Greg Russell, proceeding pro se, sued
the Hale County, Texas, district attorney and others for civil
rights violations pursuant to 42 U.S.C. § 1983.1 He alleged
irregularities in the criminal proceedings that resulted in his
conviction on drug charges. The district court dismissed the case
as frivolous under 28 U.S.C. § 1915(d). The court stated that
Russell, "failed to state a cause of action with an arguable basis
in law or in fact." The court gave no reasons for that conclusion.
Discussion
A claim is frivolous if it lacks an arguable basis in law or
fact. Denton v. Hernandez, U.S. , 112 S.Ct. 1728, 1733, 118
L.Ed. 2d 340 (1992). Such a claim may be dismissed pursuant to 28
U.S.C. § 1915(d). The standard of review is abuse of discretion.
112 S.Ct. at 1734.
Russell argues that he was entrapped, that the search and
seizure were unlawful, his Fifth and Sixth Amendment rights were
violated, he had ineffective assistance of counsel, he is a victim
of malicious prosecution, misprision of felony and malicious abuse
of legal process. This Circuit bars consideration of claims under
§ 1983 that directly or indirectly challenge the constitutionality
of the prisoner's state conviction without first exhausting state

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remedies, such as habeas corpus. Serio v. Member of Louisiana
State Board of Pardons, 821 F.2d 1112, 1117 (1987). In the instant
case, Russell has alleged constitutional claims that challenge the
legality of his confinement. As such, these claims must first be
pursued through habeas corpus. Serio, 821 F.2d 1112. When a
prisoner brings a civil rights action before a habeas petition, the
district court should dismiss the civil rights action without
prejudice and direct the plaintiff to promptly pursue habeas
remedies. Rodriguez v. Holmes, 963 F.2d 799, 804-05 (5th Cir.
1992). In addition, when a complaint combines claims that should be
asserted in habeas corpus petitions with claims that properly may
be pursued as an initial matter under § 1983, and the claims can be
separated, federal courts should do so if the § 1983 claims do not
necessitate release from confinement. Serio, 821 F.2d at 1119.
Russell's complaint contains claims which are cognizable under §
1983, such as the malicious prosecution and the malicious abuse of
process claims. However, when the resolution of the factual and
legal issues in a case necessary to decide § 1983 liability
automatically entitle a prisoner to immediate release, the claims
must be pursued initially through habeas corpus. Serio, 821 F.2d
at 1119. In his brief, Russell requests, among other things,
relief from incarceration and the removal of all charges from his
record. Russell's factual allegations supporting his request for
relief, if true, all necessitate his release from confinement.
Clearly, if it is true that Russell was prosecuted maliciously as
a result of a conspiracy between his in-laws and law enforcement,
and there is no evidence to support his conviction, then he must be

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2See generally Parker v. Carpenter, 978 F.2d 190 (5th Cir.
1992)(pro se complaints are read in a liberal fashion and should
not be dismissed unless it appears beyond all doubt, after the
prisoner has been given the opportunity to develop his case, that
the prisoner's complaint lacks an arguable basis in law and fact).
released from confinement. Therefore, Russell must first pursue
all of his claims through habeas corpus. We note that the record
does not indicate whether Russell has or has not pursued relief
through habeas corpus. Therefore, we remand to the district court
to make such a determination. If Russell has not pursued relief
through habeas corpus, then the district court should instruct him
to do so. If Russell has already pursued relief through habeas
corpus, then the district court should make more specific findings
concerning why Russell's § 1983 claim was dismissed as frivolous.2
Conclusion
For the foregoing reasons, we remand this case to the district
court.

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