(HC) Exmundo v. Trimble, No. 1:2012cv00143 - Document 7 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave to Amend 1 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability; FINDINGS and RECOMMENDATIONS to Direct the Clerk to Close the Case and Send a Blank Civil Rights Complaint Form to Petitioner, OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Barbara A. McAuliffe on 3/2/12. (Hellings, J)
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(HC) Exmundo v. Trimble Doc. 7 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EMELITO EXMUNDO, 11 12 13 14 15 16 ) ) Petitioner, ) ) ) v. ) ) R. H., TRIMBLE, Acting Warden,) ) Respondent. ) ) ) 17 1:12-cv—00143–AWI-BAM-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY FINDINGS AND RECOMMENDATIONS TO DIRECT THE CLERK TO CLOSE THE CASE AND SEND A BLANK CIVIL RIGHTS COMPLAINT FORM TO PETITIONER 18 OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. Pending before the Court is the petition, 25 which was filed on January 31, 2012. 26 I. Screening the Petition 27 Rule 4 of the Rules Governing § 2254 Cases in the United 28 1 Dockets.Justia.com 1 States District Courts (Habeas Rules) requires the Court to make 2 a preliminary review of each petition for writ of habeas corpus. 3 The Court must summarily dismiss a petition "[i]f it plainly 4 appears from the petition and any attached exhibits that the 5 petitioner is not entitled to relief in the district court....” 6 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 7 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 8 1990). 9 grounds of relief available to the Petitioner; 2) state the facts Habeas Rule 2(c) requires that a petition 1) specify all 10 supporting each ground; and 3) state the relief requested. 11 Notice pleading is not sufficient; rather, the petition must 12 state facts that point to a real possibility of constitutional 13 error. 14 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 15 Allison, 431 U.S. 63, 75 n.7 (1977)). 16 that are vague, conclusory, or palpably incredible are subject to 17 summary dismissal. 18 Cir. 1990). 19 Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 20 corpus either on its own motion under Habeas Rule 4, pursuant to 21 the respondent's motion to dismiss, or after an answer to the 22 petition has been filed. 23 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 24 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 25 A petition for habeas corpus should not be dismissed without 26 leave to amend unless it appears that no tenable claim for relief 27 can be pleaded were such leave granted. 28 F.2d 13, 14 (9th Cir. 1971). 2 Jarvis v. Nelson, 440 1 Here, Petitioner alleges that he is an inmate of the 2 Pleasant Valley State Prison (PVSP) located at Coalinga, 3 California. 4 of credit as a result of a disciplinary finding by prison 5 authorities that he had possessed an unauthorized medication. 6 Petitioner raises the following claims: 1) the finding was based 7 on evidence obtained by an unconstitutional search and seizure in 8 the form of a cell search undertaken pursuant to an allegation 9 made in retaliation for Petitioner’s refusal to withdraw a Petitioner complains that he lost thirty (30) days 10 grievance he had filed, and therefore in violation of 11 Petitioner’s First Amendment rights; 2) the finding was based on 12 a failure to provide Petitioner with evidence that he had 13 requested, including a) a rules violation report (RVR) concerning 14 Petitioner’s cellmate, inmate Leon, who Petitioner believed had 15 admitted to ownership or responsibility for the unauthorized 16 medication in the cell, b) the number of a previous grievance 17 filed by Petitioner, which would have supported Petitioner’s 18 claim of retaliation, and c) a laboratory test to identify the 19 medication, which Petitioner contends was required by specified 20 California regulations, and without which a prison pharmacist’s 21 identification of the medication was insufficient; 3) Petitioner 22 failed to receive notice twenty-four hours in advance of the 23 hearing with respect to a new, lesser violation of possession of 24 an unauthorized medication that the hearing officer ultimately 25 found that Petitioner had committed, which deprived Petitioner of 26 his right to prepare a defense to the new charge; and 4) the 27 hearing officer was biased because he predetermined the issue of 28 Petitioner’s guilt as demonstrated by his failure to ask 3 1 Petitioner how he pled or to ask him anything about the evidence, 2 and his announcement that he was changing the charge and finding 3 Petitioner guilty. (Pet. 4-5, 7.) 4 II. 5 Because the petition was filed after April 24, 1996, the Retaliatory and Unreasonable Cell Search 6 effective date of the Antiterrorism and Effective Death Penalty 7 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 8 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 9 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 10 A district court may entertain a petition for a writ of 11 habeas corpus by a person in custody pursuant to the judgment of 12 a state court only on the ground that the custody is in violation 13 of the Constitution, laws, or treaties of the United States. 14 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 15 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 16 16 (2010) (per curiam). 17 28 Title 28 U.S.C. § 2254 provides in pertinent part: 18 Lindh (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– 19 20 21 22 23 24 25 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 26 27 28 Clearly established federal law refers to the holdings, as opposed to the dicta, of the decisions of the Supreme Court as of 4 1 the time of the relevant state court decision. 2 Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v. 3 Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 4 362, 412 (2000). 5 principles set forth by the Supreme Court at the pertinent time. 6 Lockyer v. Andrade, 538 U.S. 71-72. 7 Cullen v. It is thus the governing legal principle or To the extent that Petitioner’s claim concerning the 8 disciplinary adjudication and resulting credit loss rests on an 9 allegedly unreasonable cell search and seizure of cell contents 10 in violation of the Fourth and Fourteenth Amendments, it appears 11 that Petitioner is actually challenging the evidence relied upon 12 at the prison disciplinary hearing, which included reports 13 concerning medications which were found in the search of the 14 cell. 15 The Court is aware of no clearly established federal law 16 that would require the application of the exclusionary rule to 17 prison disciplinary proceedings. 18 declined to extend the exclusionary rule to proceedings other 19 than criminal trial proceedings. 20 Probation and Parole v. Scott, 524 U.S. 357, 363 (1998), the 21 Court held that the exclusionary rule does not apply to state 22 parole revocation proceedings, and the Court emphasized its 23 previous decisions to decline to apply the exclusionary rule to 24 grand jury proceedings, civil tax proceedings, and civil 25 deportation proceedings. 26 exclusionary rule was incompatible with the traditionally 27 flexible, administrative procedures of parole revocation, which 28 affect only a conditional liberty and do not require the full Instead, the Supreme Court has In Pennsylvania Board of The Court emphasized that the 5 1 panoply of due process protections applicable to a criminal 2 trial; further, the states have wide latitude under the 3 Constitution to structure parole revocation proceedings, which 4 usually involve informal, administrative procedures conducted by 5 non-judicial staff, and which are not governed by the traditional 6 rules of evidence. Id. at 364-67. 7 The Court’s reasoning in Scott applies with even greater 8 force in the context of prison disciplinary proceedings, in which 9 it is acknowledged that prison authorities have special expertise 10 and broad discretion to carry out strong state interests in 11 institutional control and safety, and due process procedural 12 protections are limited to advance written notice of the claimed 13 violation, a right to call witnesses and present documentary 14 evidence where it would not be unduly hazardous to institutional 15 safety or correctional goals, and a written statement of the 16 finder of fact as to the evidence relied upon and the reasons for 17 disciplinary action taken. 18 563-64 (1974). 19 relatively informal, prison staff serve as adjudicators, and the 20 formal rules of evidence do not apply; indeed, the requirements 21 of due process are satisfied if some evidence supports the 22 decision by the prison disciplinary board to revoke good time 23 credits. 24 court reviewing a prison disciplinary hearing is not required to 25 examine the entire record, independently assess the credibility 26 of witnesses, or weigh the evidence; instead, the relevant 27 question is whether there is any evidence in the record that 28 could support the conclusion reached by the disciplinary board. Wolff v. McDonnell, 418 U.S. 539, Likewise, prison disciplinary procedures are Superintendent v. Hill, 472 U.S. 445, 454 (1985). 6 A 1 2 Superintendent v. Hill, 472 U.S. at 455-56. Here, the disciplinary finding that Petitioner possessed 3 restricted medications was supported by some evidence in the form 4 of 1) the reporting employee’s report of the search and the 5 discovery of the medications, which included Petitioner’s 6 admission that the drugs were his, and 2) the pharmacist’s drug 7 report. 8 9 10 (Pet. 40, 45-46.) Further, as the following analysis will show, Petitioner was not deprived of other procedural due process of law. In addition to the absence of an evidentiary remedy for 11 Petitioner’s claim, it is established that prisoners’ 12 constitutional rights are subject to substantial limitations and 13 restrictions in order to allow prison officials to achieve 14 legitimate correctional goals and maintain institutional 15 security. 16 (1987); Bell v. Wolfish, 441 U.S. 520, 545-47 (1979). 17 have no reasonable expectation of privacy in their prison cells, 18 and the Fourth Amendment’s prohibition of unreasonable searches 19 does not apply where prison officials conduct random or routine 20 searches of an inmate’s cell. 21 529-30. 22 are calculated for the purpose of harassment unrelated to prison 23 needs. 24 O’Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 Prisoners Hudson v. Palmer, 468 U.S. 517, Prisoners are protected, however, against searches that Hudson v. Palmer, 468 U.S. at 530. Notwithstanding the language in Hudson, in this circuit it 25 has been held that the Fourth Amendment right of people to be 26 secure against unreasonable searches and seizures “extends to 27 incarcerated prisoners; however, the reasonableness of a 28 particular search is determined by reference to the prison 7 1 context.” 2 1988). 3 were reasonably related to legitimate penological interests and 4 were reasonable in light of the balancing test set forth by the 5 Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). 6 Michenfelder, 860 F.2d at 333. 7 Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. In Michenfelder, it was concluded that strip searches Here, Correctional Officer Gallegos was conducting a cell 8 search in an apparently routine manner and found the pills in a 9 desk. Petitioner alleges that his past complaints against other 10 officers and medical personnel in the prison were the genesis of 11 prison authorities’ decision to search his cell. 12 focus of this habeas corpus proceeding is not Petitioner’s 13 conditions of confinement, but rather the imposition of a 14 disciplinary sanction of loss of time credits, a matter affecting 15 the legality or duration of Petitioner’s confinement. 16 context, the significant factors are the searching officers’ use 17 of reasonable means to discover restricted medications in 18 Petitioner’s cell and Petitioner’s admission that the drugs were 19 his. 20 submitted by Petitioner reflects that the search proceeded in a 21 reasonable manner, and it revealed that present in the cell were 22 medications that Petitioner admitted he possessed and that prison 23 authorities in their discretion judged to be antithetical to the 24 order and safety of the inmate population and to institutional 25 security. 26 effectuated in a reasonable manner and pursuant to valid 27 penological objectives. 28 documentation of the incident, the search was reasonable. (Pet. at 40.) However, the In this All the documentation of the search The documentation thus establishes that the search was Based on what appears to be complete 8 1 It is concluded that Petitioner has not met his burden of 2 showing that the means or object of the search exceeded 3 appropriate penological bounds. 4 333. 5 6 7 See, Michenfelder, 860 F.2d at In summary, Petitioner has not stated facts with respect to the search that would entitle him to habeas corpus relief. To the extent that Petitioner claims that the cell search 8 was retaliatory and violated his First Amendment rights, 9 Petitioner appears to be complaining of his conditions of 10 confinement. 11 Cir. 2005). 12 See, Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th A habeas corpus petition is the correct method for a 13 prisoner to challenge the legality or duration of his 14 confinement. 15 (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); 16 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 17 contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is 18 the proper method for a prisoner to challenge the conditions of 19 that confinement. 20 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; 21 Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 22 Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) In McCarthy v. Bronson, 500 U.S. 136, 141-42 To the extent that Petitioner’s allegations concern only the 23 conditions of his confinement, Petitioner does not allege facts 24 that point to a real possibility of constitutional error that 25 affects the legality or duration of his confinement. 26 Petitioner is not entitled to habeas corpus relief, and his claim 27 should be dismissed. 28 Thus, Further, it appears that in all important respects, the 9 1 complete record of the disciplinary proceedings has been 2 submitted to the Court with the petition. 3 appear that Petitioner could state a tenable claim for habeas 4 corpus relief if he were granted leave to amend this claim. 5 Therefore, it will be recommended that the claim of a retaliatory 6 and unreasonable search and seizure be dismissed without leave to 7 amend. 8 9 Thus, it does not Should Petitioner wish to pursue his conditions claim, he must do so by way of a civil rights complaint pursuant to 42 10 U.S.C. § 1983. 11 form complaint to Petitioner. The Clerk will be directed to send an appropriate 12 III. 13 Petitioner claims that the disciplinary finding was a result Claims concerning the Evidence 14 of the failure to provide Petitioner with evidence that he had 15 requested, including a) the RVR concerning Petitioner’s cell 16 mate, inmate Leon, who Petitioner believed had admitted to 17 ownership or responsibility for any drugs in the cell, b) the 18 number or report of the previous grievance, which would have 19 supported Petitioner’s claim of retaliation, and c) a lab test or 20 identification of the medication as required by specified 21 California regulations. 22 identification of the medication was insufficient because he 23 failed to indicate if a controlled substance was in the 24 medication. 25 Petitioner argues that the pharmacist’s As previously noted, the requirements of procedural due 26 process in the context of prison disciplinary proceedings are 27 minimal. 28 documentary evidence if it was not unduly hazardous to Petitioner had a right to call witnesses and present 10 1 institutional safety or correctional goals. 2 418 U.S. at 563-64. Wolff v. McDonnell, 3 Here, the documentation submitted by Petitioner reflects 4 that Petitioner did not request any witnesses at the hearing. 5 (Pet. 44.) 6 his cell mate, inmate Leon, made in his respective RVR, be 7 introduced at the hearing. 8 request on the grounds that the RVR was not authorized for the 9 particular hearing; however, the officer noted that Petitioner Petitioner did request that the written statement of The hearing officer denied the 10 could have called inmate Leon as a witness. 11 appears from the documentation that Petitioner chose not to do 12 so. 13 (Id.) It clearly In this respect Petitioner has failed to show how the 14 hearing officer’s ruling was prejudicial. 15 introducing Leon’s statement would have been to show that it was 16 Petitioner’s cell mate who was responsible for the drugs in the 17 cell. 18 have testified to his responsibility, if any, for the presence of 19 the medication in the cell. 20 does not appear to have resulted in any prejudicial effect. 21 The purpose of If Petitioner had called Leon as a witness, Leon could Thus, the hearing officer’s ruling It is recognized that generally, a failure to meet a prison 22 guideline regarding a disciplinary hearing would not alone 23 constitute a denial of due process. 24 F.2d 1267, 1270 (9th Cir. 1989). 25 authority, several courts have concluded that to establish a 26 denial of due process of law, prejudice is generally required. 27 See, Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also 28 Tien v. Sisto, Civ. No. 2:07-cv-02436-VAP (HC), 2010 WL 1236308, 11 See, Bostic v. Carlson, 884 In the absence of controlling 1 at *4 (E.D.Cal. Mar. 26, 2010) (“While neither the United States 2 Supreme Court or the Ninth Circuit Court of Appeals has spoken on 3 the issue, numerous federal Courts of Appeals, as well as courts 4 in this district, have held that a prisoner must show prejudice 5 to state a habeas claim based on an alleged due process violation 6 in a disciplinary proceeding”) (citing Pilgrim v. Luther, 571 7 F.3d 201, 206 (2d Cir. 2009); Howard v. United States Bureau of 8 Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton, 9 342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 10 53 (3d Cir. 1992); Poon v. Carey, No. Civ. S-05-0801 JAM EFB P, 11 2008 WL 5381964, at *5 (E.D.Cal. Dec. 22, 2008); Gonzalez v. 12 Clark, No. 1:07-CV-0220 AWI JMD HC, 2008 WL 4601495, at *4 13 (E.D.Cal. Oct. 15, 2008)). 14 Petitioner states that the written statement of the inmate 15 could not have been falsified. 16 opportunity to call the witness himself and could have personally 17 asked the inmate any questions concerning the incident. 18 Petitioner could have called the inmate, Petitioner cannot show 19 that the denial of permission to introduce the report caused him 20 any harm. 21 However, Petitioner had the Because With respect to the number or report of the Petitioner’s 22 previous grievance, which Petitioner contends would have 23 supported Petitioner’s claim of retaliation, the hearing officer 24 denied Petitioner’s request because the “602" form filed against 25 officers Kahn and Diaz was irrelevant because the RVR against 26 Petitioner had been written by Officer Gallegos, and not by one 27 of the other officers involved in the grievance. 28 (Pet. 44.) The right to call witnesses and to present evidence at a 12 1 disciplinary hearing is limited by the prison authorities’ 2 discretion concerning undue hazards to institutional safety or 3 correctional goals. 4 The right to call witnesses is circumscribed by the necessary 5 mutual accommodation between institutional needs and objectives 6 and the provisions of the Constitution that are of general 7 application; thus, the Supreme Court has noted that a 8 disciplinary authority may decline to allow an inmate to call a 9 witness for irrelevance, lack of necessity, or hazards presented Wolff v. McDonnell, 418 U.S. at 563-64. 10 in individual cases. 11 (1976). 12 inmate's request to call witnesses may properly be denied as 13 irrelevant, unnecessary, unduly prolonging the hearing, or 14 jeopardizing of prison safety, is entitled to deference from the 15 Court. 16 Real, 471 U.S. 491, 497-98 (1985); Neal v. Shimoda, 131 F.3d 818, 17 831 (9th Cir. 1997); Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th 18 Cir. 1987). 19 Baxter v. Palmigiano, 425 U.S. 308, 321 A prison disciplinary hearing officer's decision that an See, Wolff v. McDonnell, 418 U.S. at 563-64; Ponte v. Here, Petitioner has not shown that the hearing officer’s 20 decision to exclude information concerning the unrelated 21 grievance was unreasonable or an abuse of discretion. 22 has not submitted any information that would render the hearing 23 officer’s decision arbitrary or unreasonable. 24 alleged any specific facts showing how the evidence was relevant 25 to entirely different charges involving a different incident. 26 Petitioner has not suggested how the previous grievance would 27 have any bearing on the fairness of the disciplinary processes or 28 Petitioner’s admitted responsibility for the disciplinary 13 Petitioner Petitioner has not 1 misconduct in the present case. 2 Petitioner’s case do not point to a real possibility of 3 constitutional error, Petitioner’s claim concerning evidence of 4 the previous grievance should be dismissed. Because the facts of 5 With respect to the absence of laboratory testing of the 6 medication found in Petitioner’s cell, the hearing officer denied 7 Petitioner’s request for testing because a state regulation 8 provided that testing was not necessary where the identification 9 of the medication had been confirmed by a pharmacist. (Pet. 44.) 10 The documentation establishes that Petitioner was found to have 11 been in possession of Gabapentin and Tramadol, which were 12 classified not as controlled substances, but as drugs that were 13 to be consumed by direct observation therapy only, or, 14 specifically, not to be in the possession of an inmate outside 15 the direct supervision of medical staff. 16 (Id. at 46.) Further, because Petitioner was ultimately adjudicated as 17 having been responsible for possessing only an unauthorized 18 medication, as distinct from a medication containing a controlled 19 substance, Petitioner does not show how he suffered any prejudice 20 from the absence of drug testing for a controlled substance. 21 prison pharmacist’s report of the pharmacist’s own observation of 22 the physical characteristics of pharmaceuticals that had been 23 dispensed within the institution constituted some evidence in 24 support of the hearing officer’s decision. 25 met constitutional standards. 26 A Thus, the evidence Accordingly, it is concluded that with respect to his claims 27 related to the evidence at the hearing, Petitioner is not 28 entitled to relief. The documentation submitted by Petitioner in 14 1 support of the petition shows that Petitioner has not stated 2 claims warranting relief in a proceeding pursuant to § 2254. 3 It will thus be recommended that the claims be dismissed. 4 IV. 5 Although Petitioner does not challenge the notice he Sufficiency of Notice of the Accusation 6 received concerning the charge of possessing medication 7 containing a controlled substance, he complains that with respect 8 to the lesser charge of possessing medication that was only for 9 direct observation therapy (DOT), he received notice only after 10 the hearing when the hearing officer informed him that the 11 adjudication would be of the lesser charge. 12 of a failure to receive notice of the new, lesser charge twenty- 13 four hours in advance of the hearing, which he generally asserts 14 deprived him of an opportunity to prepare a defense to the 15 charge. 16 Petitioner complains In Bostic v. Carlson, 884 F.2d 1267, 1270-71 (9th Cir. 17 1989), an inmate was found to have committed the disciplinary 18 violation of possession of contraband (stolen sandwiches) and was 19 assessed a forfeiture of thirty days of credit. 20 report, the violation was described as “stealing.” 21 sought relief under § 2241 for alleged due process violations. 22 The court stated the following with respect to the adequacy of 23 the notice given to the prisoner: 24 25 26 27 28 In the incident The prisoner Nor does appellant assert that the officer's description of the incident as “stealing” rather than as “possession of contraband” in the incident report deprived him of the opportunity to present a proper defense. The incident report described the factual situation that was the basis for the finding of guilt of possession of contraband and alerted Bostic that he would be charged with possessing something he did not own. Cf. Wolff, 418 U.S. at 563-64, 94 S.Ct. at 15 1 2 3 2978-79 (stating that “the function of [the] notice [of a claimed violation] is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are”). The incident report adequately performed the functions of notice described in Wolff. See id. 4 Bostic v. Carlson, 884 F.2d at 1270-71. 5 Here, the RVR described the factual situation that was the 6 basis for the finding of guilt of either offense and alerted 7 Petitioner that he would be charged with possessing a drug that 8 he was not supposed to have possessed in his cell. Petitioner 9 has not stated how his defense to the charge would have been 10 different had the charging allegation been different. In view of 11 Petitioner’s documented admission that he possessed the drug, it 12 is difficult for the Court to envision what defense Petitioner 13 would have offered. Petitioner has failed to show how he 14 suffered any confusion, loss of opportunity to defend, or other 15 prejudice from the hearing officer’s reduction of the charge 16 after the hearing. 17 It is concluded that Petitioner has not alleged facts that 18 show that his right to due process of law was violated by the 19 notice given to him concerning the disciplinary offenses. 20 It will thus be recommended that Petitioner’s claim be 21 dismissed. 22 V. Bias of the Hearing Officer 23 Petitioner argues that the hearing officer was biased 24 because he predetermined the issue of Petitioner’s guilt as 25 demonstrated by his failure to ask Petitioner how he pled or to 26 ask him anything about the evidence, and his announcement that he 27 was changing the charge and finding Petitioner guilty. 28 16 1 2 3 A fair trial in a fair tribunal is a basic requirement of due process. In re Murchison, 349 U.S. 133, 136 (1955). With respect to the employment of prison staff to adjudicate 4 disciplinary charges, the Supreme Court has ruled that a 5 committee of correctional officers and staff, acting with the 6 purpose of taking necessary disciplinary measures to control 7 inmate behavior within acceptable limits, was sufficiently 8 impartial to conduct disciplinary hearings and impose penalties 9 that included revocation of good time credits. 10 11 Wolff v. McDonnell, 418 U.S. 539, 570-71 (1974). More generally, fairness requires an absence of actual 12 bias and of the probability of unfairness. 13 be actual, or it may consist of the appearance of partiality in 14 the absence of actual bias. 15 (9th Cir. 1995). 16 or reasonably appears to have prejudged, an issue is sufficient. 17 Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992). Id. at 136. Bias may Stivers v. Pierce, 71 F.3d 732, 741 A showing that the adjudicator has prejudged, 18 However, there is a presumption of honesty and integrity on 19 the part of decision makers which may be overcome by evidence of 20 a risk of actual bias or prejudgment based on special facts and 21 circumstances. 22 Withrow v. Larkin, 421 U.S. 35, 46-47, 58 (1975). The mere fact that a decision maker denies relief in a given 23 case or has denied relief in the vast majority of cases does not 24 demonstrate bias. 25 because unfavorable judicial rulings alone are generally 26 insufficient to demonstrate bias unless they reflect such extreme 27 favoritism or antagonism that the exercise of fair judgment is 28 precluded. Stivers v. Pierce, 71 F.3d at 742. This is Liteky v. United States, 510 U.S. 540, 555 (1994). 17 1 Here, the documentation provided by Petitioner reflects that 2 the charge was read to Petitioner, and Petitioner pled not guilty 3 and stated that he was not guilty of unauthorized possession of a 4 controlled substance. 5 in his defense the fact that the pharmacist did not identify the 6 substance contained in the medication, and he stated that the 7 language (presumably “controlled substance”) belonged in the 8 Health and Safety Code. 9 Further, it notes that Petitioner asserted (Pet. 44.) Thus, it appears that the question of Petitioner’s plea to 10 the violation was raised at the hearing, and that Petitioner 11 entered a plea. 12 Further, Petitioner was not entitled to be examined at the 13 hearing, so the hearing officer’s failure to do so is not 14 probative of bias. 15 The mere fact that the hearing officer found Petitioner 16 guilty is not sufficient to establish bias. 17 of guilt of a lesser offense after the conclusion of the hearing 18 appears to have benefitted Petitioner and not to have harmed him. 19 The documentation does not contain any specific facts that would 20 overcome the presumption that the hearing officer was impartial. 21 It is thus concluded that the fully documented facts submitted by 22 Petitioner do not point to a real possibility of constitutional 23 error in connection with hearing officer’s impartiality. 24 It is concluded that the claim should be dismissed. 25 In summary, the allegations of the petition and the Further, the finding 26 supporting documentation demonstrate that Petitioner is not 27 entitled to relief on his claims concerning the disciplinary 28 proceedings that resulted in the finding that he possessed an 18 1 unauthorized medication. 2 documented, it does not appear that Petitioner could state a 3 tenable claim for relief if leave to amend were granted. 4 Accordingly, it will be recommended that the petition be 5 dismissed without leave to amend. Because all the claims are fully 6 VI. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the Court of Appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 only if the applicant makes a substantial showing of the denial 14 of a constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 27 the claims in the habeas petition, generally assesses their 28 merits, and determines whether the resolution was debatable among 19 1 jurists of reason or wrong. 2 applicant to show more than an absence of frivolity or the 3 existence of mere good faith; however, it is not necessary for an 4 applicant to show that the appeal will succeed. 5 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 14 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 15 VII. 16 In accordance with the foregoing, it is RECOMMENDED that: 17 1) Recommendations The petition be DISMISSED without leave to amend because 18 Petitioner has failed to state facts entitling him to relief in a 19 proceeding pursuant to 28 U.S.C. § 2254; and 20 21 22 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to send to Petitioner a blank 23 civil rights complaint form, and to close the case because an 24 order of dismissal would terminate the action in its entirety. 25 These findings and recommendations are submitted to the 26 United States District Court Judge assigned to the case, pursuant 27 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 28 the Local Rules of Practice for the United States District Court, 20 1 Eastern District of California. 2 being served with a copy, any party may file written objections 3 with the Court and serve a copy on all parties. 4 should be captioned “Objections to Magistrate Judge’s Findings 5 and Recommendations.” 6 and filed within fourteen (14) days (plus three (3) days if 7 served by mail) after service of the objections. 8 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 9 § 636 (b)(1)(C). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will The parties are advised that failure to file 10 objections within the specified time may waive the right to 11 appeal the District Court’s order. 12 1153 (9th Cir. 1991). 13 14 Martinez v. Ylst, 951 F.2d IT IS SO ORDERED. Dated: 10c20k March 2, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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