(HC) Colbert v. Schulteis, No. 1:2010cv01532 - Document 8 (E.D. Cal. 2011)
Court Description: ORDER SEVERING and Dismissing With Leave to Amend Petitioner's Claim Concerning the Second Disciplinary Proceeding; ORDER DIRECTING the Clerk to Open a New Action and to File Therein a Copy of the Petition and of This Order; ORDER GRANTING Petitioner Leave to File a First Amended Petition in the New Action no Later Than Thirty (30) Days After the Date of Service of This Order, signed by Magistrate Judge Sandra M. Snyder on 1/26/2011. (Marrujo, C)
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(HC) Colbert v. Schulteis Doc. 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 GEORGE K. COLBERT, 11 Petitioner, 12 v. 13 L. L. SCHULTEIS, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01532–SMS-HC ORDER SEVERING AND DISMISSING WITH LEAVE TO AMEND PETITIONER’S CLAIM CONCERNING THE SECOND DISCIPLINARY PROCEEDING (DOC. 1) ORDER DIRECTING THE CLERK TO OPEN A NEW ACTION AND TO FILE THEREIN A COPY OF THE PETITION AND OF THIS ORDER ORDER GRANTING PETITIONER LEAVE TO FILE A FIRST AMENDED PETITION IN THE NEW ACTION NO LATER THAN THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), 22 Petitioner has consented to the jurisdiction of the United States 23 Magistrate Judge to conduct all further proceedings in the case, 24 including the entry of final judgment, by manifesting consent in 25 a signed writing filed by Petitioner on September 8, 2010 (doc. 26 5). Pending before the Court is the petition, which was filed on 27 August 25, 2010. 28 1 Dockets.Justia.com 1 I. 2 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 1990). 11 grounds of relief available to the Petitioner; 2) state the facts 12 supporting each ground; and 3) state the relief requested. 13 Notice pleading is not sufficient; rather, the petition must 14 state facts that point to a real possibility of constitutional 15 error. 16 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 17 Allison, 431 U.S. 63, 75 n. 7 (1977)). 18 that are vague, conclusory, or palpably incredible are subject to 19 summary dismissal. 20 Cir. 1990). 21 Habeas Rule 2(c) requires that a petition 1) specify all 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 22 corpus either on its own motion under Habeas Rule 4, pursuant to 23 the respondent's motion to dismiss, or after an answer to the 24 petition has been filed. 25 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 26 (9th Cir. 2001). 27 28 Advisory Committee Notes to Habeas Rule Here, Petitioner, who at the time the petition was filed was an inmate of the California Correctional Institution (CCI) at 2 1 Tehachapi, California, complains of what appear to be two 2 separate disciplinary proceedings that occurred at CCI. 3 first proceeding involved disrespect towards staff that allegedly 4 was committed by Petitioner on September 5, 2008 (IAB case no. 5 0813485, local log no. CCI-08-02744). 6 proceeding involved threatening a public official on December 1, 7 2008 (IAB case no. 0818809, local log no. CCI-09-00132). 8 II. (Pet. 9.) The The second Due Process Requirements for Prison Disciplinary Proceedings 9 A district court may entertain a petition for a writ of 10 habeas corpus by a person in custody pursuant to the judgment of 11 a state court on the ground that the custody is in violation of 12 the Constitution, laws, or treaties of the United States. 28 13 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 14 375 n.7 (2000). 15 Title 28 U.S.C. § 2254 provides in pertinent part: 16 17 18 19 20 21 (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– (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 22 23 24 25 26 27 28 (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. (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 3 1 The Petitioner bears the burden of establishing that the decision 2 of the state court was contrary to, or involved unreasonable 3 application of, the precedents of the United States Supreme 4 Court. 5 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 6 Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th Cir. With respect to prison disciplinary proceedings, procedural 7 due process of law requires that where the state has made good 8 time subject to forfeiture only for serious misbehavior, then 9 prisoners subject to a loss of good-time credits must be given 10 advance written notice of the claimed violation, a right to call 11 witnesses and present documentary evidence where it would not be 12 unduly hazardous to institutional safety or correctional goals, 13 and a written statement of the finder of fact as to the evidence 14 relied upon and the reasons for disciplinary action taken. 15 v. McDonnell, 418 U.S. 539, 563-64 (1974). Confrontation, cross- 16 examination, and counsel are not required. Wolff, 418 U.S. at 17 568-70. Wolff 18 Further, where good-time credits are a protected liberty 19 interest, the decision to revoke credits must be supported by 20 some evidence in the record. 21 445, 454 (1985). 22 23 24 25 26 27 28 Superintendent v. Hill, 472 U.S. The Court in Hill stated: 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 4 1 2 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). 3 Superintendent v. Hill, 472 U.S. at 455-56. The Constitution 4 does not require that the evidence logically preclude any 5 conclusion other than the conclusion reached by the disciplinary 6 board; rather, there need only be some evidence in order to 7 ensure that there was some basis in fact for the decision. 8 Superintendent v. Hill, 472 U.S. at 457. 9 With respect to the requirement that some evidence support 10 the finding that Petitioner possessed the weapon, this Court does 11 not make its own assessment of the credibility of witnesses or 12 re-weigh the evidence; however, the Court must ascertain that the 13 evidence has some indicia of reliability and, even if meager, 14 “not so devoid of evidence that the findings of the disciplinary 15 board were without support or otherwise arbitrary.” Cato v. 16 Rushen, 824 F.2d 703, 704-05 (9th Cir. 1987) (quoting 17 Superintendent v. Hill, 472 U.S. 445, 457 (1985)). 18 In Cato v. Rushen, 824 F.2d at 705, the Court found that the 19 Hill standard was not satisfied where the only evidence 20 implicating the inmate was another inmate’s statement that was 21 related to prison officials through a confidential informant who 22 had no first-hand knowledge of any relevant statements or actions 23 by the inmate being disciplined, and whose polygraph results were 24 inconclusive. In contrast, evidence evaluated and found to 25 constitute “some evidence” supportive of various findings has 26 included the report of a prison guard who saw several inmates 27 fleeing an area after an assault on another inmate when no other 28 5 1 inmates were in the area, Superintendent v. Hill, 472 U.S. 456- 2 57; the statement of a guard that the inmate had admitted a theft 3 to supplement his income, coupled with corroborating evidence, 4 Bostic v. Carlson, 884 F.2d 1267, 1270 (9th Cir. 1989); an 5 inmate’s admission and corroborating, circumstantial evidence, 6 Crane v. Evans, 2009 WL 148273, *3 (N.D.Cal. Feb. 2, 2009); and 7 an inmate’s admission of having engaged in the violation plus an 8 officer’s report of having heard a recording of the offending 9 conversation, Dawson v. Norwood, 2010 WL 761226, *1 (C.D.Cal. 10 March 1, 2010). 11 III. Dismissal of the Claim concerning IAB Case No. 0818809 (Second Disciplinary Proceeding) 12 A. Basis for Dismissal 13 Petitioner alleges the following with respect to IAB case 14 number 0818809, local log number CCI-09-00132: 15 16 17 18 19 PETITIONER HAVE BEEN DENIED DUE PROCESS AND EQUAL PROTECTION IN VIOLATION OF THE FOURTEENTH AMENDMENT BY AN ARBITRARY REVIEW BOARD. ON 12-1-08, I WAS GIVEN A RULE VIOLATION, AND FOUND GUILTY WITHOUT PROCEDURAL DUE PROCESS. I WAS NOT ALLOWED TO PRESENT DOCUMENTARY EVIDENCE, NOR HAVE LEGAL ASSISTANCE; THIS SITUATION STEM FROM COVER UP, TO DENIED (SIC) PETITIONER’S RIGHTS. 20 (Pet. 4.) 21 disciplinary proceedings, he forfeited sixty (60) days of credit 22 and lost thirty (30) days. 23 thirty-day forfeiture of credit pertained to the other offense 24 concerning disrespect for staff in September 2008, so it is 25 assumed that Petitioner lost sixty days for this incident, which 26 occurred on December 1, 2008. 27 28 He previously alleged that with respect to the two (Pet. 1.) It appears that the (Pet. 9, 7.) The documentation attached by Petitioner to the petition includes a director’s level appeal decision on the rules 6 1 violation. 2 public official, which Petitioner denied. 3 appeal that when a correctional counselor approached his cell 4 door and discussed confidential information on the tier where 5 other inmates in the section could hear, Petitioner informed the 6 officer that he was going to appeal the actions; in retaliation, 7 the rules violation report issued. 8 the appeal at the director’s level, the chief of inmate appeals 9 stated that the “Reporting Employee documentation reflects a true (Pet. 7.) The violation concerned threatening a (Id.) Petitioner argued on However, in denying 10 account of what happened.” 11 decision rested upon some evidence from an employee who appears 12 to have had personal knowledge of the relevant events. 13 (Id.) It thus appears that the The appeal decision further recited that all procedural due 14 process requirements were met, including receipt by Petitioner of 15 the rules violation report within fifteen days of discovery of 16 the incident, receipt of all non-confidential documentation 17 relied on in the hearing at least twenty-four hours prior to the 18 hearing, a hearing within thirty days of the date of receipt of 19 the violation, and a finding that was based on a preponderance of 20 the evidence. 21 (Pet. 7.) Petitioner’s allegations that he was denied due process and 22 equal protection are merely generalized assertions that are 23 devoid of specific facts. 24 Petitioner’s allegation that he was not allowed to present 25 documentary evidence does not state a claim that warrants habeas 26 relief because a prisoner has a right to present documentary 27 evidence only where it would not be unduly hazardous to 28 institutional safety or correctional goals. 7 Wolff v. McDonnell, 1 418 U.S. 539, 563-64 (1974). 2 discretion of the prison officials. 3 539, 566; Ponte v. Real, 471 U.S. 491, 495 (1984). 4 The decision is left to the sound Wolff v. McDonnell, 418 U.S. Here, the documentation of the director’s appeal reflects 5 that Petitioner did request witnesses that the senior hearing 6 officer addressed in the hearing; however, it did not contain any 7 reference to documentary evidence. 8 not describe the factual context in which any request to present 9 documentary evidence was made; thus, a reader must speculate as (Pet. 7.) Petitioner does 10 to any effect of documentary evidence on institutional safety or 11 correctional goals. 12 describe the documentary evidence in question. 13 has not alleged facts that point to a real possibility that any 14 prejudice was suffered by Petitioner as a result of any 15 prohibition of presentation of documentary evidence. 16 Schenck v. Edwards, 921 F.Supp. 679, 687-88 (E.D.Wash. 1996). 17 Further, Petitioner does not identify or Thus, Petitioner See, Petitioner’s allegation that he was not allowed to have 18 legal assistance does not state specific facts that point to a 19 real possibility of constitutional error. 20 entitled to the assistance of counsel. 21 70. 22 appeal that Petitioner met the pertinent criteria for an 23 investigative employee but was simply not assigned a staff 24 assistant. 25 is vague and conclusory and is thus subject to summary dismissal. 26 In summary, the Court concludes that with respect to the Petitioner was not Wolff, 418 U.S. at 568- Further, the it appears from a reference in the director’s Petitioner’s allegation concerning “legal assistance” 27 second disciplinary proceeding, Petitioner has failed to allege 28 specific facts that point to a real possibility that his rights 8 1 2 3 4 to due process of law or equal protection were violated. Petitioner will be given an opportunity to file a first amended petition to cure the deficiencies. However, because of the improper joinder of claims in this 5 petition that is discussed hereinbelow, Petitioner’s claims 6 concerning the second disciplinary hearing will be severed and 7 will proceed in a new, separate action to be opened by the Clerk. 8 Petitioner may file a first amended petition concerning the 9 second disciplinary proceeding in the new action. 10 11 12 13 B. Improper Joinder of Claims Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) provides: 14 A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court. 15 Petitioner thus cannot properly challenge the judgments of two 16 different tribunals in a single proceeding. 17 925 F.2d 305, 308-11 (9th Cir. 1991). 18 Bianchi v. Blodgett, Further, a court has inherent power to control its docket 19 and the disposition of its cases with economy of time and effort 20 for both the court and the parties. 21 Co., 299 U.S. 248, 254-255 (1936); Ferdik v. Bonzelet, 963 F.2d 22 1258, 1260 (9th Cir. 1992). 23 Landis v. North American Here, Petitioner has not specifically described the 24 proceeding or proceedings in which he presented his claims to the 25 state courts; thus, the precise number of state court decisions 26 to be reviewed is unclear. 27 seeking this Court to review more than one state court decision. 28 Further, he is challenging two different decisions in one It is possible that Petitioner is 9 1 2 petition. In order to avoid placing an undue burden on the parties and 3 the Court, and to increase judicial efficiency, the Court 4 exercises its discretion to require Petitioner to proceed with 5 his claims concerning the two separate disciplinary proceedings 6 in two separate actions. 7 The presence in this single action of claims concerning two 8 distinct disciplinary proceedings is inconsistent with the rules 9 governing habeas corpus proceedings. Although Petitioner will be 10 given an opportunity to file a first amended petition with 11 respect to his claims concerning the second disciplinary 12 proceeding, the Court will sever these claims and make them the 13 subject of a new, separate action. 14 to file in the new action a first amended petition that bears the 15 case number of the new action. 16 Petitioner will be required Petitioner’s claims concerning the first disciplinary 17 proceeding will remain pending in the present action. 18 separate order in this proceeding, the Court will order the 19 Respondent to file a response to the petition in this action with 20 respect to the claims concerning the first disciplinary 21 proceeding. 22 IV. 23 Accordingly, it is ORDERED that: 24 1) By a Disposition Petitioner’s claims concerning the second disciplinary 25 proceeding are SEVERED from the remaining claims in this action 26 and SHALL PROCEED as a separate action, while the instant action 27 concerning Petitioner’s remaining claims concerning the first 28 disciplinary proceeding (IAB case no. 0813485, local log no. CCI10 1 08-02744) shall also remain pending and open; and 2 2) Petitioner’s claims concerning the second disciplinary 3 proceeding (IAB case no. 0818809, local log no. CCI-09-00132) 4 are DISMISSED with leave to amend; and 5 3) 6 The Clerk is DIRECTED as follows: a) To open a new case in which Petitioner shall 7 proceed with his claims concerning the second disciplinary 8 proceeding; and 9 b) To file in the new case a copy of the initial 10 petition in this action (doc. 1) and a copy of this order 11 granting Petitioner leave to file a first amended petition; and 12 13 c) To assign the new case to the undersigned Magistrate Judge, the Honorable Sandra M. Snyder; and 14 4) Petitioner is GRANTED thirty (30) days from the date of 15 service of this order to file an amended petition in the new 16 action in compliance with this order; and 17 5) The Clerk of the Court is DIRECTED to send Petitioner 18 with this order a form petition pursuant to 28 U.S.C. § 2254. 19 Petitioner is forewarned that a failure to comply with this 20 order will be considered to be a failure to comply with an order 21 of the Court and will result in dismissal of the action. 22 23 IT IS SO ORDERED. 24 Dated: icido3 January 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 25 26 27 28 11
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