(PC) Stipp v. Brown, et al, No. 1:2017cv01074 - Document 12 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Case be Dismissed for Failure to State a Claim, Without Prejudice to Filing a Petition for Writ of Habeas Corpus signed by Magistrate Judge Gary S. Austin on 6/26/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND STIPP, 12 Plaintiff, 13 14 vs. EDMUND G. BROWN, JR., et al., 15 Defendants. 16 1:17-cv-01074-DAD-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED FOR FAILURE TO STATE A CLAIM, WITHOUT PREJUDICE TO FILING A PETITION FOR WRIT OF HABEAS CORPUS (ECF No. 1.) OBJECTIONS, IF ANY, DUE WITHIN 14 DAYS 17 18 19 20 I. BACKGROUND 21 Raymond Stipp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 22 with this civil rights action pursuant to 42 U.S.C. § 1983. On July 11, 2017, Plaintiff filed the 23 Complaint commencing this action at the United States District Court for the Central District of 24 California. (ECF No. 1.) On August 9, 2017, the case was transferred to this court. (ECF No. 25 7.) Plaintiff s Complaint is now before the court for screening. 28 U.S.C. § 1915A. 26 II. SCREENING REQUIREMENT 27 The court is required to screen complaints brought by prisoners seeking relief against a 28 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 1 1 The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 2 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 3 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 4 § 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been 5 paid, the court shall dismiss the case at any time if the court determines that the action or 6 appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 7 A complaint is required to contain “a short and plain statement of the claim showing 8 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 9 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 10 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 11 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff s allegations are 12 taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart 13 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 14 To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to 15 „state a claim to relief that is plausible on its face. ” Iqbal, 556 U.S. at 678-79; Moss v. U.S. 16 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as 17 true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting 18 this plausibility standard. Id. 19 III. PLAINTIFF’S ALLEGATIONS 20 Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California. The 21 events at issue in the Complaint allegedly occurred at Kern Valley State Prison (KVSP) in 22 Delano, California, when Plaintiff was incarcerated there in the custody of the California 23 Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants Edmund 24 G. Brown, Jr. (Governor of California), R. Tolson (Warden, KVSP), D. Stibbins (Associate 25 Warden, KVSP), and M. Voong (Chief of Appeals, CDCR) (collectively, “Defendants”). 26 Plaintiff s allegations follow. On August 18, 2016, at KVSP, correctional officers 27 conducted a search in the cell occupied by Plaintiff and his cell mate, inmate Hernandez. 28 Officer J. Rodriguez [not a defendant] found two mobile phones, which are contraband. 2 1 Plaintiff had no knowledge that the phones were in the cell. 2 Plaintiff was issued a Rules Violation Report (RVR) for possession of the phones. On 3 September 28, 2016, a disciplinary hearing was held. Plaintiff asked for inmate Hernandez to 4 be his witness in the hearing. Plaintiff was denied his witness because he [Plaintiff] was in 5 protective custody at the time, and the hearing proceeded. The Senior Hearing Officer cited no 6 California Penal Code but used “state law” and the title heading “Due Process” to deem 7 Plaintiff guilty. Plaintiff contends that the Hearing Officer s failure to cite law in the action 8 against him violates the Fourteenth Amendment. Plaintiff was found guilty and forfeited a 9 credit loss of 90 days. 10 Plaintiff seeks the following relief: 11 1. Reversal of the guilty finding; 12 2. Restoration of all 90 days of forfeited credit loss; 13 3. Expungement of the disciplinary conviction; and 14 4. Award of compensatory damages for lost property in the amount of $157.00. 15 IV. PLAINTIFF=S CLAIMS -- HABEAS CORPUS 16 When a prisoner challenges the legality or duration of his custody, or raises a 17 constitutional challenge which could entitle him to an earlier release, his sole federal remedy is 18 a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 19 874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for 20 an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that 21 the conviction or sentence has been reversed on direct appeal, expunged by executive order, 22 declared invalid by a state tribunal authorized to make such determination, or called into 23 question by a federal court s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v. 24 Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for damages bearing that relationship to a 25 conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 26 488. This “favorable termination” requirement has been extended to actions under § 1983 that, 27 if 28 /// 3 1 successful, would imply the invalidity of prison administrative decisions which result in a 2 forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997). 3 Plaintiff s Complaint does not contain any allegations showing that the finding of guilt 4 which resulted in his forfeiture of ninety days of credits has been reversed, expunged, declared 5 invalid, or called into question by a writ of habeas corpus. If a § 1983 complaint states claims 6 which sound in habeas, the court should not convert the complaint into a habeas petition. See 7 Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Rather, such claims must be 8 dismissed without prejudice and the complaint should proceed on any remaining cognizable § 9 1983 claims. See Heck, 512 U.S. at 487; Trimble, 49 F.3d at 585. Here, Plaintiff s claims, 10 either directly or indirectly, challenge the duration of his confinement, a challenge which may 11 be brought only in a petition for a writ of habeas corpus. Thus, Plaintiff is barred by Heck and 12 Edwards from pursuing any claims under § 1983 concerning the process he was provided 13 which resulted in the forfeiture of credits. 14 V. CONCLUSION AND RECOMMENDATIONS 15 The court has found that Plaintiff s Complaint fails to state a § 1983 claim upon which 16 relief can be granted, and that Plaintiff is barred by Heck and Edwards from pursuing any 17 claims under § 1983 concerning the process he was provided which resulted in the forfeiture of 18 credits. Therefore, Plaintiff s Complaint should be dismissed, without prejudice to filing a 19 petition for writ of habeas corpus. 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. 22 Plaintiff s Complaint be DISMISSED for failure to state a § 1983 claim, without prejudice to filing a petition for writ of habeas corpus; and 23 2. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 26 (14) days after the date of service of these findings and recommendations, Plaintiff may file 27 written objections with the court. 28 Magistrate Judge s Findings and Recommendations.” Plaintiff is advised that failure to file The Clerk be directed to close this case. Such a document should be captioned “Objections to 4 1 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 2 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 3 (9th Cir. 1991)). 4 5 6 7 IT IS SO ORDERED. Dated: June 26, 2018 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5