(HC) Garcia v. California Department of Corrections et al, No. 1:2009cv01648 - Document 29 (E.D. Cal. 2010)

Court Description: ORDER DIRECTING CLERK to Substitute Warden Frank X. Chavez as Respondent Pursuant to Fed. R. Civ. P. 25(d); FINDINGS and RECOMMENDATIONS recommending that 12 Respondent's Motion to Dismiss the Petition be GRANTED; the Court DECLINE to Issue a Certificate of Appealability; the Clerk be DIRECTED to Forward to Petitioner a Civil Rights Complaint Form and the Clerk be DIRECTED to Close the Action re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 9/16/2010. Referred to Judge Ishii. Objections to F&R due by 10/21/2010. (Jessen, A)
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(HC) Garcia v. California Department of Corrections et al Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 GUILLERMO GARCIA, 11 12 13 14 15 16 17 ) ) Petitioner, ) ) ) v. ) ) FRANK X. CHAVEZ, ) Warden of Sierra Conservation ) Center, ) ) Respondent. ) ) ) 1:09-cv—1648-AWI-SKO-HC ORDER DIRECTING THE CLERK TO SUBSTITUTE WARDEN FRANK X. CHAVEZ AS RESPONDENT PURSUANT TO FED. R. CIV. P. 25(d) FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS THE PETITION (Docs. 12, 1) OBJECTIONS DUE WITHIN 30 DAYS 18 Plaintiff is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2254. The matter has been referred to the Magistrate 21 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 22 304. Pending before the Court is Respondent's motion to dismiss, 23 filed and served on March 4, 2010. On May 27, 2010, Petitioner 24 filed a document entitled as a traverse (doc. 19) that by order 25 filed on June 3, 2010, was deemed by the Court to be an 26 opposition to the motion to dismiss. Respondent filed a reply on 27 June 8, 2010. The matter has been submitted to the Court without 28 1 Dockets.Justia.com 1 2 oral argument pursuant to Local Rule 230(l). I. Order Directing Substitution of Warden Frank X. Chavez as Respondent 3 This Court has a duty to raise the issue of jurisdiction sua 4 sponte. Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004). 5 Title 28 U.S.C. § 2242 provides that a petition for writ of 6 habeas corpus shall allege the name of the person who has custody 7 over the applicant. Rule 2(a) of the Rules Governing Section 8 2254 Cases in the District Courts (Habeas Rules) provides that if 9 the petitioner is currently in custody under a state-court 10 judgment, the petition must name as respondent the state officer 11 who has custody. 12 The respondent must have the power or authority to provide 13 the relief to which a petitioner is entitled. Smith v. Idaho, 14 392 F.3d 350, 355 n. 3 (9th Cir. 2004). A failure to name the 15 proper respondent destroys personal jurisdiction. Stanley v. 16 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). 17 However, objections to a lack of personal jurisdiction, including 18 the requirement of naming the technically correct custodian under 19 § 2242 and the Habeas Rules, may be forfeited or waived on behalf 20 of the immediate custodian by the relevant government entity, 21 such as the state in a § 2254 proceeding. Smith v. Idaho, 392 22 F.3d 350, 355-56, 356 n. 4 (9th Cir. 2004) (where the state 23 conceded it had waived lack of jurisdiction over a petitioner’s 24 immediate custodian and submitted itself in his stead to the 25 jurisdiction of the federal courts). 26 Further, the Court has the discretion to avoid delay and 27 waste of the resources of the Court and the parties by 28 2 1 recognizing a waiver instead of requiring formal amendment of the 2 petition by the Petitioner. 3 Id. at 356 n. 6. Here, Petitioner initially named the California Department 4 of Corrections and Rehabilitation and various prison staff 5 members as Respondents. 6 dismiss, Respondent identifies the proper respondent as Frank X. 7 Chavez, who acts as warden at Sierra Conservation Center (SCC), 8 where Petitioner is housed. 9 stated that the answer and motion to dismiss are filed “on behalf (Pet. 1.) However, in the motion to (Mot. 1 n. 1.) Further, it is 10 of Warden Chavez, who requests that the Court substitute him as 11 the sole respondent.” 12 (Mot. 1 n. 1.) Respondent requests that the substitution occur pursuant to 13 Fed. R. Civ. P. 25(d), which provides that a court may at any 14 time order substitution of a public officer who is a party in an 15 official capacity whose predecessor dies, resigns, or otherwise 16 ceases to hold office. 17 The Court concludes Warden Frank X. Chavez, Warden of SCC, 18 is an appropriate respondent in this action, and that pursuant to 19 Fed. R. Civ. P. 25(d), he should be substituted as Respondent. 20 Accordingly, it is ORDERED that Frank X. Chavez, Warden of 21 Sierra Conservation Center, be substituted in place of the 22 California Department of Corrections as Respondent. 23 II. 24 It is by way of a motion to dismiss the petition that 25 Respondent argues that Petitioner has failed to state a case or 26 controversy cognizable pursuant to 28 U.S.C. § 2254. 27 argues that Petitioner has failed to establish a basis for habeas 28 relief because Petitioner’s allegations do not concern the fact Motion to Dismiss after Expansion of the Record 3 Respondent 1 2 or duration of his confinement. The filing of a motion to dismiss instead of an answer was 3 authorized by the Court’s order of January 4, 2010, which 4 referred to the possibility of Respondent’s filing a motion to 5 dismiss and set forth a briefing schedule if such a motion were 6 filed. 7 characterized as erroneous the view that a motion pursuant to 8 Fed. R. Civ. P. 12(b)(6) is appropriate in a habeas corpus 9 proceeding, Browder v. Director, Ill. Dept. of Corrections, 434 (Order, doc. 7, 2.) Although the Supreme Court has 10 U.S. 257, 269 n. 14 (1978), it is established in this circuit 11 that the filing of a motion to dismiss is expressly authorized by 12 Habeas Rule 4. 13 Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195, 14 1198 (9th Cir. 1983). 15 Habeas Rule 4 Advisory Committee Notes, 1976 A federal court may only grant a state prisoner’s petition 16 for writ of habeas corpus if the petitioner can show that "he is 17 in custody in violation of the Constitution or laws or treaties 18 of the United States." 19 petition is the correct method for a prisoner to challenge the 20 legality or duration of his confinement. 21 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 22 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 23 Adoption. 24 28 U.S.C. § 2254(a). A habeas corpus Badea v. Cox, 931 F.2d Habeas Rule 7 permits the Court to direct the parties to 25 expand the record by submitting additional materials relating to 26 the petition and to authenticate such materials, which may 27 include letters predating the filing of the petition, documents, 28 exhibits, affidavits, and answers under oath to written 4 1 2 interrogatories propounded by the judge. Habeas Rule 7(a), (b). If, upon expansion of the record, the Court perceives that a 3 defect not apparent on the face of the petition may preclude a 4 hearing on the merits, then the Court may proceed to determine a 5 motion to dismiss. 6 (E.D.Cal. 1982). 7 (1977), the United States Supreme Court suggested that summary 8 judgment standards should be used to test whether facially 9 adequate allegations have a sufficient basis in fact to warrant Hillery v. Pulley, 533 F.Supp. 1189, 1196 In Blackledge v. Allison, 431 U.S. 63, 80-81 10 plenary presentation of evidence. 11 of the record in a given case could demonstrate that an 12 evidentiary hearing is unnecessary, and the Court specifically 13 advised that there might be cases in which expansion of the 14 record would provide evidence against a petitioner’s contentions 15 so overwhelming as to justify a conclusion that an allegation of 16 fact does not raise a substantial issue of fact. 17 such circumstances, the petitioner is entitled to “careful 18 consideration and plenary processing of (his claim,) including 19 full opportunity for presentation of the relevant facts.” 20 82-83. 21 The Court noted that expansion Id. at 81. Id. at Summary judgment standards were likewise applied in Hillery 22 v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the 23 Court stated: 24 25 26 27 28 In The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact “which if resolved in accordance with the petitioner’s contentions would entitle him to relief... (citation omitted). Only if it appears from 5 1 2 undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided.” (Citation omitted.) 3 533 F.Supp. 1197. 4 In the present case, the record was expanded in connection 5 with the motion to dismiss to include facts concerning the 6 disciplinary process and the consequences of the challenged 7 disciplinary finding. Pursuant to the foregoing standards, this 8 expansion of the record may permit summary disposition of the 9 petition without a full evidentiary hearing. 10 Accordingly, pursuant to Habeas Rule 4, the Court will 11 review the facts alleged in the petition and as reflected in the 12 evidentiary materials submitted by the parties in connection with 13 the motion to dismiss. 14 III. The Petition 15 In the petition, Petitioner’s primary claim is that on 16 August 14, 2007, at KVSP, prison officials violated Petitioner’s 17 right to due process of law in connection with a prison 18 disciplinary hearing because 1) the evidence was insufficient to 19 support an adjudication that Petitioner engaged in mutual combat 20 with another inmate in violation of Cal. Code Regs. tit. 15, § 21 3005; 2) the hearing was untimely; 3) a pre-hearing interview of 22 Petitioner regarding the events was not confidential, and thus 23 Petitioner was unable to offer evidence; and 4) requested 24 witnesses did not testify in Petitioner’s behalf. (Pet. 1-2, 5, 25 42-44; Mot. Ex. 2, 12.) Petitioner also complains that because 26 placement reviews by classification staff were not regularly 27 implemented, Petitioner was exposed to an assault by another 28 6 1 inmate and suffered a denial of Petitioner’s right to be 2 protected reasonably from threats of violence from prisoners and 3 guards. 4 (Pet. 7.) The relief requested by Petitioner is reversal of the 5 disciplinary finding of guilt of mutual combat, expungement of 6 all references in his file, and protection against retaliation 7 and malicious transfer. 8 in state court, Petitioner asked for restoration of ninety (90) 9 days of lost behavior credits. (Pet. 15.) In an earlier petition filed (Pet. Ex. C, 26.) 10 IV. 11 Petitioner is serving a sentence of twenty-four (24) years Factual Summary 12 imposed by the Los Angeles County Superior Court for one (1) 13 count of committing lewd acts with a child under the age of 14 fourteen (14) in violation of Cal. Pen. Code § 288(a) and three 15 (3) counts of committing lewd acts with a child by force or fear 16 in violation of Cal. Pen. Code § 288(b)(1). 17 18 A. (Mot. Ex. 1.) The Disciplinary Violation and Process The records filed in support of the motion to dismiss 19 reflect that on July 12, 2007, Sergeant M. L. Sobbe reported that 20 on July 3, 2007, at about 7:20 a.m., she was assigned as Facility 21 “C” Correctional Sergeant. 22 Officer A. Agu of Facility “C”, Building number 8, advised via 23 institutional radio that there was a possible cell fight; 24 Petitioner and his cell mate, Ramirez, were involved in mutual 25 combat in the cell. 26 interview, Petitioner admitted to being involved in mutual combat 27 with his cell mate, Ramirez, whom he considered to be an enemy. 28 (Id.) (Mot. Ex. 2, doc. 12, 10.) Floor Sobbe reported that in a subsequent 7 1 2 On July 16, 2007, Petitioner was given copies of the rules violation report of Sergeant Sobbe. 3 (Mot. Ex. 2, doc. 12, 10.) Correctional Officer T. Reyna acted as investigative 4 employee for Petitioner. 5 6, 2007, Reyna interviewed Petitioner, who when asked, responded 6 that he had no objections to Reyna’s investigating the matter. 7 (Id. 14.) 8 report, a CDC 115, and a CDC 115A; he stated to the investigating 9 employee that he understood the charge, did not want to make a (Mot., Ex. 2, doc. 12, 11.) On August Petitioner acknowledged receipt of the disciplinary 10 statement, but wanted two inmates and two correctional staff 11 members present at the hearing. 12 (Id.) Investigating employee Reyna reported on August 13, 2007, 13 that Sergeant Sobbe informed him that after she had learned there 14 was a cell fight, both inmates were brought up to “C-Program,” 15 where they both admitted to mutual combat. 16 15.) 17 witnesses requested by Petitioner who stated that they did not 18 see or hear anything. 19 requested by Petitioner recalled the inmates or the incidents, 20 and thus neither could give a statement. 21 (Mot. Ex. 2, doc. 12, Reyna also contacted and interviewed the two inmate Likewise, neither of the staff members (Id.) At a hearing held on August 14, 2007, the hearing’s purpose 22 and Petitioner’s rights were explained to Petitioner, who 23 appeared before Senior Hearing Officer (SHO) T. Harris, a 24 Correctional Lieutenant, for adjudication of the disciplinary 25 charge. 26 to proceed. 27 combat, a violation of Cal. Code Regs. § 3005(c). 28 stated that he did not consider Ramirez to be an enemy, could Petitioner stated that he was in good health and ready (Id.) He entered a plea of not guilty of mutual 8 Petitioner 1 "program" with him on the same yard or facility, and had already 2 signed a compatibility “chrono.” 3 SHO Harris wrote: 4 5 (Mot., Ex. 2, doc. 12, 12.) WITNESSES: Witnesses were originally requested by Inmate GARCIA, but were waived during the hearing as indicated by his signature on the 128 B (Waiver of Witnesses) chrono and dated, 08/14/07. 6 7 8 EVIDENCE: GARCIA did request additional material/evidence to be presented at the hearing. A CDC-7219, (sic) The SHO notes that the CDC-7219 shows injuries to GARCIA’s right hand, which is consistent with being in an altercation. 9 (Id. 11.) 10 The record does not contain a signed waiver of witnesses. 11 Harris found Petitioner guilty of the violation because the 12 charge was substantiated by a preponderance of the evidence, 13 including Sergeant Sobbe’s report; Petitioner’s admission; the 14 CDC-7219 Medical Report of Injury of Unusual Occurrence for 15 Inmate Garcia that described “injuries found, an abrasion/scratch 16 and active bleeding to the right palm, an abrasion/scratch to the 17 right knee, and an abrasion/scratch, and active bleeding to the 18 inside of the left calf,” which was consistent with being in a 19 physical altercation; and the CDC-7219 Medical Report of Injury 20 or Unusual Occurrence for Inmate Ramirez, which described 21 unspecified injuries that SHO Harris believed had been sustained 22 in, and demonstrated, a physical altercation involving both 23 inmates. (Id.) 24 With respect to the procedures undertaken in the 25 disciplinary proceedings, SHO Harris reported that Petitioner 26 acknowledged receipt more than twenty-four (24) hours before the 27 hearing of several reports: CDC-115, CDC-115 A, IE Report by 28 9 1 Officer T. Reyna, CDC-1288 Enemy Concerns chrono, and two (2) 2 CDC-7219's. 3 disciplinary charge (CDC-115) had been issued to Petitioner on 4 July 16, which was within fifteen (15) days of the date of 5 discovery of the alleged misconduct. 6 held within thirty (30) days of issuance of the pre-hearing copy. 7 All time constraints had been met, and due process would not be 8 offended by a forfeiture of credit. 9 The report of hearing reflects that a copy of the CDC 115 was Harris noted that the pre-hearing copy of the Further, the hearing was (Mot. Ex. 2, doc. 12, 10.) 10 given to Petitioner after the hearing. 11 advised of his right to appeal the action and the procedure for 12 restoration of credits. 13 B. 14 (Id.) Petitioner was (Id. 12.) The Consequences of the Disciplinary Process Petitioner alleged that he lost ninety (90) days of credit 15 and was placed in disciplinary segregation. 16 earlier petition filed in state court, Petitioner alleged that he 17 lost “good conduct for 1 1/2 years, 6 points.” 18 (Pet. 1.) In an (Pet. 38.) However, in support of the motion to dismiss, Respondent 19 submitted documentation reflecting that although Petitioner was 20 initially assessed a loss of ninety (90) days of credit in August 21 2007 (Mot. Ex. 2, 12), prison officials restored the ninety (90) 22 days in February 2008 pursuant to Cal. Code. Regs. tit. 15, 23 §§ 3327 and 3328 (2008) (Mot. Ex. 3). 24 the materials submitted by the parties that Petitioner appealed 25 or otherwise sought to set aside the restoration of credit. 26 There is no indication in In his opposition, Petitioner does not dispute that the 27 ninety (90) days were restored. 28 the finding nevertheless affected his classification score. However, Petitioner argues that 10 1 Record support for Petitioner’s assertion is found in a 2 memorandum dated November 7, 2008, from SCC’s Chief Deputy Warden 3 S. J. Mendoza Salinas to Petitioner, which reflects that 4 Petitioner appealed a committee’s classification score adjustment 5 of July 30, 2008. 6 the committee had failed to award Petitioner two additional 7 points for favorable, disciplinary-free behavior during the six- 8 month period beginning May 4, 2007, and ending November 3, 2007. 9 (Opp., Doc. 19, Ex. C, 22.) Because of the mutual combat finding of 2007, The warden concluded that although 10 Petitioner’s time credit was restored, the guilty finding alone 11 rendered Petitioner ineligible for favorable behavior points 12 pursuant to Cal. Code Regs. tit. 15, § 3375.4(a)(2). 13 Petitioner asserts that his “good-conduct scores of 6 points 14 was raised from 49 points to 55,” and he was transferred to SCC, 15 his present site of confinement. 16 the “loss of 8 points ‘Good time Credits’ were never returned 17 directly” and resulted in an attempt of the SCC classification 18 committee to send Petitioner back to a maximum level IV state 19 prison. 20 (Opp. 6.) He also asserts that (Id.) In addition to the allegedly wrongful classification score, 21 Petitioner complains that his glasses were wrongfully removed 22 from his cell by a correctional officer, and Petitioner was 23 placed in disciplinary segregation (the “hole”) for ninety (90) 24 days without daily showers or access to the law library, a public 25 telephone to call his relatives, or “Personal Quarterly Packes.” 26 (Opp., Doc. 19, 1-2.) 27 in retaliation for various administrative appeals filed at Kern 28 Valley State Prison. Petitioner asserts that his punishment was (Id. at 2.) 11 Petitioner argues that this 1 penalty was a violation of due process of law, and it prevented 2 him for ninety (90) days from being provided with work time, 3 credit-qualifying assignments, or other program opportunities for 4 earning time credits. (Id. at 3.) 5 V. 6 Because the petition was filed after April 24, 1996, the Legal Standards 7 effective date of the Antiterrorism and Effective Death Penalty 8 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 9 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 10 Lindh (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 11 A district court may entertain a petition for a writ of 12 habeas corpus by a person in custody pursuant to the judgment of 13 a state court on the ground that the custody is in violation of 14 the Constitution, laws, or treaties of the United States. 15 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 16 375 n. 7 (2000). 17 jurisdiction to entertain a petition for a writ of habeas corpus 18 only if the petitioner is “in custody” within the meaning of the 19 habeas corpus statute at the time the petition is filed. 20 U.S.C. §§ 2241(c)(3), 2254(a). 21 actual physical incarceration; a petitioner is in “custody” if he 22 is subject to restraints not shared by the public generally. 23 Jones v. Cunningham, 371 U.S. 236, 243 (1963). 24 be in custody with respect to the conviction he attacks; once a 25 sentence is fully served, even if the conviction may affect the 26 length or conditions of a sentence to be imposed in the future, 27 the prisoner is not “in custody” within the meaning of 28 U.S.C. 28 §§ 2241(c) or 2254(a). 28 Further, a district court has subject matter 28 “Custody” is not limited to A petitioner must See Maleng v. Cook, 490 U.S. 488, 490-492 12 1 2 (1989). Claims challenging the validity of a prisoner’s continued 3 incarceration, including the fact or length of the custody, are 4 within the “heart of habeas corpus” and are cognizable only in 5 federal habeas corpus. 6 99, 499 n. 14 (1973). 7 U.S.C. § 1983 is appropriate for a state prisoner challenging the 8 conditions of prison life but not the fact or length of the 9 custody. 10 11 Preiser v.Rodriguez, 411 U.S. 475, 498In contrast, an action pursuant to 42 Preiser v. Rodriguez, 411 U.S. at 499; Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). Habeas corpus has been mentioned as a potential, alternative 12 remedy to an action under § 1983 for unspecified additional and 13 unconstitutional restraints during lawful custody. 14 Rodriguez, 411 U.S. at 499-500. 15 Preiser in support of the proposition that habeas jurisdiction 16 covers challenges to prison conditions are factually distinct and 17 have involved state interference with prison conditions that in 18 turn has burdened or precluded prisoners’ ability to pursue the 19 federal habeas corpus remedy. 20 (1969) (a motion for law books and a typewriter was treated as a 21 petition for habeas relief, and, in the absence of an alternative 22 form of assistance to prisoners, the Court held invalid a state 23 prison regulation that barred inmates from assisting other 24 prisoners in preparing petitions for post-conviction relief); Ex 25 Parte Hull, 312 U.S. 546, 549 (1941) (a prison’s regulation of 26 the contents of a petition for habeas relief was held invalid 27 because it was inconsistent with the federal courts’ exclusive 28 authority to determine the sufficiency of a petition). Preiser v. The cases cited by the Court in Johnson v. Avery, 393 U.S. 483 13 Another 1 case noted in Preiser was Wilwording v. Swenson, 404 U.S. 249, 2 251 (1973), where the Court treated what purported to be a habeas 3 petition concerning conditions of confinement, including 4 disciplinary measures, as a civil rights complaint and failed to 5 require exhaustion beyond having exhausted state habeas remedies. 6 The Court notes that the appropriate extent of any overlap 7 between habeas corpus and § 1983 has not been clarified by 8 subsequent decisions of the United States Supreme Court. 9 In this circuit it has been held that the availability of 10 habeas relief with respect to challenges to conditions of 11 confinement depends on the likelihood of the effect of a 12 successful challenge on the overall length of the prisoner’s 13 sentence. 14 2003). 15 favorable termination rule of Heck v. Humphrey and Edwards v. 16 Balisok1 should apply to a state prisoner’s § 1983 claim that 17 prison disciplinary hearing procedures that resulted in the 18 prisoner’s placement in administrative segregation violated his 19 constitutional rights. 20 that the prisoner could proceed under § 1983 without proving 21 favorable termination because the prisoner’s claim, if Ramirez v. Galaza, 334 F.3d 850, 858-59 (9th Cir. In Ramirez v. Galaza, the court considered whether the 334 F.3d at 852. The court determined 22 23 24 25 26 27 28 1 The first reference is to Heck v. Humphrey, 512 U.S. 477 (1994), in which it was held that in order for a prisoner to maintain a § 1983 claim for damages (but not injunctive relief or release from custody) for an allegedly unconstitutional conviction or sentence or for an action that would render a conviction or sentence invalid, a prisoner must prove that the conviction or sentence has been reversed or invalidated by a state tribunal or has warranted issuance of a federal writ of habeas corpus. The second reference is to Edwards v. Balisok, 520 U.S. 641 (1997), in which the Heck “favorable termination” rule was extended to a prisoner’s claim for damages and injunctive relief for prison disciplinary hearing procedures that resulted in a loss of good-time credits because the alleged defects, if established, necessarily implied the invalidity of the deprivation of the credits. 14 1 successful, would not necessarily invalidate a disciplinary 2 action that affected the fact or length of his confinement. 3 The court reviewed the significance of Preiser v. Rodriguez: 4 The Supreme Court first addressed the intersection between § 1983 and writs of habeas corpus in Preiser v. Rodriguez, holding that “when a state prisoner is challenging the very fact or duration of his physical confinement,” and where “the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment,” the prisoner's “sole federal remedy is a writ of habeas corpus.” 411 U.S. at 500, 93 S.Ct. 1827. Conversely, Preiser concluded that “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody.” Id. at 499, 93 S.Ct. 1827. 5 6 7 8 9 10 Id. 11 Ramirez v. Galaza, 334 F.3d 855. The court later noted that the 12 distinction applied whether the term of incarceration resulted 13 from a conviction or sentence imposed by a state court, or a 14 disciplinary sanction imposed in a state prison. Id. at 856. 15 The court reviewed its prior decisions concerning the 16 availability of habeas corpus to challenge the conditions of 17 confinement: 18 19 20 21 22 23 24 25 26 27 28 Our holding also clarifies our prior decisions addressing the availability of habeas corpus to challenge the conditions of imprisonment. We have held that a prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 for “expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole.” Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir.1989) (citing McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir.1982)). Bostic does not hold that habeas corpus jurisdiction is always available to seek the expungement of a prison disciplinary record. Instead, a writ of habeas corpus is proper only where expungement is “likely to accelerate the prisoner's eligibility for parole.” Bostic, 884 F.2d at 1269 (emphasis added). In Bostic, we cited the Seventh Circuit's decision in McCollum which presumed that where a disciplinary infraction might delay a prisoner's release on parole, the prisoner may, “by analogy to Preiser,” challenge the disciplinary sentence through habeas corpus. 15 1 2 3 4 5 McCollum, 695 F.2d at 1047. Bostic thus holds that the likelihood of the effect on the overall length of the prisoner's sentence from a successful § 1983 action determines the availability of habeas corpus. Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997) (finding “no difficulty in concluding that a challenge to the procedures used in the denial of parole necessarily implicates the validity of the denial of parole and, therefore, the prisoner's continuing confinement”) (emphasis added). 6 Ramirez v. Galaza, 334 F.3d 858. 7 VI. Claims Concerning Conditions of Confinement 8 Petitioner complains that his glasses were removed from his 9 cell; tardy classification reviews subjected him to higher 10 security risks during confinement, constituted a failure to 11 protect him from other prisoners, and culminated in the assault 12 that was the subject of the disciplinary proceeding; and during 13 his time in the secured housing unit, he suffered a reduction in 14 privileges, such as access to a telephone and the library. He 15 also alleges that his conditions of confinement resulted from 16 retaliatory animus on the part of unspecified actors because 17 Petitioner had filed previous administrative appeals. 18 These claims address not the duration of Petitioner’s 19 confinement, but rather the conditions of his every day, prison 20 life. Because these allegations concern only the conditions of 21 his confinement, Petitioner is not entitled to habeas corpus 22 relief, and the petition must be dismissed insofar as Petitioner 23 seeks to pursue claims relating to the conditions of confinement. 24 Should Petitioner wish to pursue his claims, he must do so 25 by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. 26 The Clerk will be directed to send an appropriate form complaint 27 to Petitioner. 28 16 1 VII. Claim concerning the Disciplinary Process and Findings 2 Petitioner alleges that the disciplinary findings resulted 3 in conditions of confinement that bore some relationship to the 4 likelihood of, or some possibility of accelerating indirectly the 5 time of, his release. 6 disciplinary segregation, he lost the opportunity to participate 7 in programs that in turn could have given him time credits that 8 ultimately might have accelerated his release date. 9 lost classification points, which affected the security level of 10 Petitioner alleges that while in Further, he his custody. 11 It is undisputed that the findings affected Petitioner’s 12 classification score. 13 Petitioner’s overall sentence the nature and sufficiency of any 14 nexus between the disciplinary finding and the length of 15 Petitioner’s imprisonment, and the Court will assess the 16 likelihood that expungement of the finding would accelerate 17 Petitioner’s release. The Court will consider in the context of 18 First, it has not been shown that expungement of the 19 challenged disciplinary findings would be likely to accelerate 20 Petitioner’s eligibility for parole. 21 determinate sentence of four consecutive full terms of six years 22 each, for a total term of twenty-four years. 23 prisoner sentenced to a determinate term pursuant to Cal. Pen. 24 Code § 1170, Petitioner is required to serve a statutorily fixed 25 period of parole unless waived. 26 (b). 27 analogous to prisoners serving indeterminate sentences. Petitioner is serving a (Mot. Ex. 1.) Cal. Pen. Code § 3000(a)(1), As a It does not appear that Petitioner’s circumstances are 28 17 See, 1 2 Cal. Pen. Code § 3041.2 In this circuit, it is established that although habeas and 3 § 1983 claims are not necessarily mutually exclusive, there are 4 habeas claims that fall within the set of “core” challenges to 5 the fact or duration of confinement identified in Preiser, and 6 then there are claims which do not directly challenge the fact or 7 duration of confinement but have a sufficient nexus to the length 8 of imprisonment so as to “implicate, but not fall squarely 9 within” the core of challenges noted in Preiser. Docken v. 10 Chase, 393 F.3d 1024, 1031 (9th Cir. 2004). 11 prisoners’ claims solely for equitable relief concerning the 12 constitutional propriety of less frequent parole reviews were In Docken, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 It thus appears that Petitioner’s case may be distinguished from those where the record reflects the effect of disciplinary findings on parole or eligibility or suitability for parole. See, Murphy v. Department of Corrections and Rehabilitation et al., No. C 06-04956 MHP, 2008 WL 111226, *5*7 (N.D.Cal. 2008) (considering on habeas the claim of a prisoner serving an indeterminate term who sought only equitable relief with respect to disciplinary findings that could potentially affect the duration of his confinement because if successful, it was likely to accelerate eligibility for parole); Camp v. Prosper, No. CIV S-06-1662 DAD P, 2009 WL 1099914 (E.D.Cal. 2009) (time credit loss affected the parole eligibility of a prisoner serving an indeterminate sentence and thus was cognizable on habeas); Drake v. Felker, No. 2:07-cv-00577, 2007 WL 4404432, *2-*3 (E.D.Cal. 2007) (state prisoner’s claim seeking expungement of a disciplinary finding was cognizable on habeas because the court concluded that in California, negative disciplinary findings necessarily affected potential eligibility for parole, and citing Cal. Code Regs. tit. 15, § 2402 [relating to parole for murderers with indeterminate life sentences]; Marvin v. Department of Corrections and Rehabilitation et al., No. V 06-4958 MHP, 2007 WL 1031124 (N.D.Cal. 2007) (a claim concerning state disciplinary findings was cognizable where the record showed that the findings had affected the petitioner’s chance of release on parole); Dutra v. Department of Corrections and Rehabilitation, No. C 06-0323 MHP, 2007 WL 3306638, *5-*7 (even though no evidence demonstrated that the state parole board had considered a challenged disciplinary finding in denying Petitioner’s parole, under the test set forth in Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004), the disciplinary was likely to accelerate eligibility for parole [also citing Cal. Code Regs. tit. 15, § 2402(b), which requires consideration of reliably documented criminal misconduct in connection with indeterminate sentences] or could potentially affect the duration of confinement); see also, Seehausen v. Hood, no. Civ. 02-378-ST, 2002 WL 31006009 (D. Ore., July 24, 2002) (federal prisoner’s access to furloughs was dependent upon his classification score, and thus a claim concerning a disciplinary procedure was cognizable on habeas corpus). 18 1 held to be cognizable pursuant to § 2254 because if successful, 2 the claims “could potentially affect the duration of their 3 confinement.” 4 the duration of confinement was possible, but not certain, if the 5 challenge were successful. 6 various decisions, including Bostic v. Carlson, 884 F.2d 1267 7 (9th Cir. 1989), which had held that a claim to expunge a 8 disciplinary finding was cognizable on habeas corpus pursuant to 9 28 U.S.C. § 2241 if expungement was likely to accelerate the 393 F.3d 1031. It was enough that an effect on 393 F.3d 1031. 10 prisoner’s eligibility for parole. 11 The court reviewed explained: 12 13 14 15 16 17 18 19 The court in Docken Instead, we understand Bostic’s use of the term “likely” to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but not fall squarely within, the “core” challenges identified by the Preiser Court. Such a reading follows from Bostic itself, which spoke of claims that are “likely to accelerate the prisoner’s eligibility for parole,” 884 F.2d at 1269 (emphasis added), rather than those likely to accelerate the prisoner’s release. Docken’s central contention--that he is entitled to annual review–is even more related to the duration of his confinement than eligibility for parole in the abstract, and therefore appears at least as viable as the subject of a habeas petition as that which was before the court in Bostic and Butterfield. 20 21 22 23 24 25 Ultimately, though Docken’s claim may not be the kind of “core” challenge the Preiser Court had in mind, the potential relationship between his claim and the duration of his confinement is undeniable. In such a case, we are reluctant to unnecessarily constrain our jurisdiction to entertain habeas petitions absent clear indicia of congressional intent to do so. See, e.g., INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000). 26 In contrast, the instant case does not involve parole or 27 eligibility for parole. Further, because the time credit 28 19 1 forfeited by Petitioner has been restored, Petitioner’s claim 2 concerning the invalidity of the disciplinary procedures does not 3 directly or necessarily affect the fact or duration of his 4 custody. 5 Galaza because once the forfeited credit was restored, 6 Petitioner’s claim no longer necessarily affected the duration of 7 his confinement or bore the same relationship to his release. 8 9 Petitioner’s claim is analogous to that in Ramirez v. Petitioner complains that along with an effect on his classification score, he suffered transfer or attempted transfer 10 to different custodial institutions as well as confinement in 11 disciplinary segregation. 12 Review of Cal. Code Regs. tit. 15, § 3375 reveals that the 13 classification process may result in adverse effects, including 14 transfer to an institution with a higher security level, removal 15 from an assigned program, transfer to a more restrictive or 16 higher security program, an increase in the inmate’s custody 17 designation, placement in segregated housing, and placement in a 18 reduced work group. 19 process of classification and reclassification includes 20 consideration of favorable and unfavorable behavior since the 21 last classification review, with points assigned for 22 participation in work assignments and for six-month periods of 23 custody without serious disciplinary violations. 24 tit. 15, § 3375.4(a), (b). Cal. Code Regs. tit. 15, § 3375(f)(1). The Cal. Code Regs. 25 Petitioner’s position is essentially that because the 26 disciplinary finding affected his classification score, it 27 affected his conditions of confinement and his opportunity to 28 earn further time credits. It does not appear that the 20 1 classification scores themselves are likely to affect the fact or 2 duration of Petitioner’s confinement. 3 identified any potential relationship between his claim 4 concerning the propriety of the disciplinary finding on the one 5 hand, and on the other the fact, legality, or duration of his 6 confinement. 7 first instance in a suit pursuant to § 1983. 8 McDonnell, 418 U.S. 539, 554-55 (1974). Petitioner has not Thus, Petitioner’s claim might be brought in the Cf., Wolff v. 9 The Court concludes that in the present case, the nexus 10 between the claim and the length of imprisonment is insufficient 11 to confer habeas jurisdiction on this Court. 12 The Court is mindful that the decisions concerning the 13 boundaries of the habeas corpus remedy have occurred in the 14 context of efforts to limit jurisdiction under § 1983, which does 15 not always require exhaustion of state processes. 16 noted, the concern of the United States Supreme Court has been 17 how far the “general remedy provided by § 1983 may go before it 18 intrudes into the more specific realm of habeas, not the other 19 way around.” 20 2004). 21 exclusive. 22 As has been Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. Further, § 1983 and habeas are not necessarily mutually Docken, 393 F.3d 1031. The Court does not want to curtail its jurisdiction 23 unnecessarily. 24 of any special circumstances requiring the availability of the 25 habeas remedy in order to preserve Petitioner’s access to habeas 26 relief. 27 eligibility for, parole with the findings concerning Petitioner’s 28 disciplinary misconduct. However, in the present case there is an absence Further, there is no basis for connecting release on, or There is an insufficient likelihood of 21 1 any other effect on the fact or duration of confinement to bring 2 the present petition within the scope of habeas corpus. 3 4 Accordingly, the Court will recommend that Respondent’s motion to dismiss be granted. 5 VIII. Alternative Consideration of Due Process Claim 6 Because of the uncertainty of the law concerning subject 7 matter jurisdiction, and in order to facilitate a complete 8 disposition of Petitioner’s case without further delay, the Court 9 will set forth its analysis concerning Petitioner’s due process 10 claim in the event it were assumed or found that the Court has 11 subject matter jurisdiction pursuant to § 2254 over Petitioner’s 12 claim. 13 14 A. Legal Standards Procedural due process of law requires that where the state 15 has made good time subject to forfeiture only for serious 16 misbehavior, then prisoners subject to a loss of good-time 17 credits must be given advance written notice of the claimed 18 violation, a right to call witnesses and present documentary 19 evidence where it would not be unduly hazardous to institutional 20 safety or correctional goals, and a written statement of the 21 finder of fact as to the evidence relied upon and the reasons for 22 disciplinary action taken. 23 563-64 (1974). 24 not required. Wolff v. McDonnell, 418 U.S. 539, Confrontation, cross-examination, and counsel are Wolff, 418 U.S. at 568-70. 25 Further, where good-time credits are a protected liberty 26 interest, the decision to revoke credits must be supported by 27 some evidence in the record. 28 445, 454 (1985). Superintendent v. Hill, 472 U.S. The Court in Hill stated: 22 1 2 3 4 5 6 7 8 9 We hold that the requirements of due process are satisfied if some evidence supports the decision by the prison disciplinary board to revoke good time credits. This standard is met if “there was some evidence from which the conclusion of the administrative tribunal could be deduced....” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S., at 106, 47 S.Ct., at 304. Ascertaining whether this standard is satisfied does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board. See ibid.; United States ex rel. Tisi v. Tod, 264 U.S. 131, 133-134, 44 S.Ct. 260, 260-261, 68 L.Ed. 590 (1924); Willis v. Ciccone, 506 F.2d 1011, 1018 (CA8 1974). 10 Superintendent v. Hill, 472 U.S. at 455-56. 11 does not require that the evidence logically preclude any 12 conclusion other than the conclusion reached by the disciplinary 13 board; rather, there need only be some evidence in order to 14 ensure that there was some basis in fact for the decision. 15 Superintendent v. Hill, 472 U.S. at 457. 16 17 18 19 The Constitution B. Analysis Here, Petitioner received the required advance written notice of the claimed violation. Petitioner complains that he was not interviewed in private 20 by correctional staff; thus, he was precluded from making a 21 statement to the investigating officer and from presenting 22 evidence in the proceeding. 23 mate Ramirez was not an enemy and professes to be willing to 24 "program" with Ramirez, has not set forth any facts or 25 circumstances that would have entitled him to a completely 26 private interview. 27 that demonstrate that his failure to offer any additional 28 evidence of any sort at the hearing resulted from the nature or Petitioner, who claims that cell Further, Petitioner has not alleged facts 23 1 circumstances of any interview of Petitioner. 2 Petitioner has not demonstrated any denial of the procedures 3 required by due process as set forth in Wolff and Hill. 4 In this respect, Petitioner challenges the failure to have his witnesses 5 testify at the hearing. 6 of events, including his assertion that he did not waive his 7 witnesses, the documentation shows that none of the witnesses 8 requested by Petitioner recalled the pertinent events or was able 9 to make statements concerning the incident. However, accepting Petitioner’s version Petitioner has not 10 shown that any of the witnesses would have presented any helpful 11 or exculpatory evidence. 12 or shown any prejudicial denial of due process. 13 Edwards, 921 F.Supp. 679, 687-88 (E.D.Wash. 1996). 14 received the required written statement of the finder of fact as 15 to the evidence relied upon and the reasons for disciplinary 16 action taken. 17 Therefore, Petitioner has not alleged Schenck v. Petitioner In summary, the Court concludes that undisputed evidence in 18 the record reflects that Petitioner received the procedural 19 protections required by the Due Process Clause. 20 With respect to the presence of some evidence to support the 21 disciplinary finding, in determining whether some evidence of the 22 violation supported the finding, the Court does not make its own 23 assessment of the credibility of witnesses or reweigh the 24 evidence; however, the Court must ascertain that the evidence has 25 some indicia of reliability and, even if meager, is “not so 26 devoid of evidence that the findings of the disciplinary board 27 were without support or otherwise arbitrary.” 28 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting Superintendent v. 24 Cato v. Rushen, 1 2 Hill, 472 U.S. 445, 457 (1985)). The record reflects that in arriving at his conclusions, the 3 SHO relied on Sergeant Sobbe’s report, Petitioner’s admission, 4 and the two CDC-7219 medical report forms reflecting injuries to 5 both inmates. 6 petitioner’s admissions, and corroborating evidence has been held 7 sufficient to constitute “some evidence” as required by Hill. 8 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989) (holding 9 sufficient the statement of a guard that the inmate had admitted Evidence consisting of staff reports, a 10 a theft to supplement his income, coupled with corroborating 11 evidence); Crane v. Evans, 2009 WL 148273, *3 12 2009) (holding sufficient an inmate’s admission and 13 corroborating, circumstantial evidence). 14 (N.D.Cal. Feb. 2, In summary, the Court has considered the documents in the 15 expanded record, has indulged all reasonable factual inferences 16 in Petitioner’s favor, and has accepted his version of disputed, 17 specific facts. 18 clear that the Respondent has established as a matter of law that 19 Petitioner’s allegations do not entitle him to habeas relief. 20 The expanded record reflects that Petitioner received due process 21 of law with respect to the procedures afforded him in connection 22 with the prison disciplinary charge and finding of mutual combat. 23 Further, the finding was supported by the requisite “some 24 evidence.” 25 Viewing the evidence in this posture, it is The expanded record reflects that even accepting as true 26 Petitioner’s version of the facts, Petitioner has not alleged a 27 basis for habeas relief, and Respondent is entitled to prevail as 28 a matter of law. Hillery v. Pulley, 533 F.Supp. 1189, 1197 n. 15 25 1 (citing Jones v. Halekulani Hotel Inc., 557 F.2d 1308, 2 Cir. 1977) and Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 3 (1970)). 4 5 1310 (9th Accordingly, the Court will recommend that Respondent’s motion to dismiss the petition be granted. 6 IX. 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). In determining this issue, a court 26 conducts an overview of the claims in the habeas petition, 27 generally assesses their merits, and determines whether the 28 resolution was debatable among jurists of reason or wrong. 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 26 A Slack v. McDaniel, Id. 1 It is necessary for an applicant to show more than an absence of 2 frivolity or the existence of mere good faith; however, it is not 3 necessary for an applicant to show that the appeal will succeed. 4 Id. at 338. 5 A district court must issue or deny a certificate of 6 appealability when it enters a final order adverse to the 7 applicant. 8 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could debate whether the petition should have been resolved in a 10 different manner. 11 of the denial of a constitutional right. 12 recommended that the Court decline to issue a certificate of 13 appealability. Petitioner has not made a substantial showing Accordingly, it will be 14 X. Recommendation 15 In accordance with the foregoing analysis, it is RECOMMENDED 16 that: 17 18 19 20 21 1) Respondent’s motion to dismiss the petition be GRANTED; and 2) The Court DECLINE to issue a certificate of appealability; and 3) The Clerk be DIRECTED to forward to Petitioner a blank 22 form complaint for civil rights claims brought pursuant to 42 23 U.S.C. § 1983; and 24 4) The Clerk be DIRECTED to close the action. 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, 27 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. Such a document 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 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). Martinez v. Ylst, 951 F.2d 13 14 IT IS SO ORDERED. 15 Dated: ie14hj September 16, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 28