Bogovich

This court must determine whether the claim asserted in this case-that the Board of Prison Terms’ (“Board”) consideration of prisoners’ past substance abuse history as a part of its parole decisions violates the Americans with Disabilities Act (“ADA”)must be brought as a habeas corpus petition. We conclude that the claim does not necessarily challenge the fact or duration of appellants’ confinement and that, as a result, they are not required to bring a habeas petition to assert their claims. We therefore reverse the district court’s stay order, which required appellants to exhaust state habeas remedies.

I.FACTS AND PROCEDURAL HISTORY

Stephen Bogovich and Charles Thompson are state prisoners who are serving terms of fifteen years to life for second-degree murder. Both received treatment for substance abuse while in prison and have been drug-free since 1984 and 1990, respectively. Both became statutorily eligible for parole in 1993 and both assert that they have been denied a parole release date primarily due to their history of substance abuse. Appellants filed this action in federal court against the Board, asserting that their policy of considering a prisoner’s substance abuse…