(HC) Farrell v. Barnes, No. 2:2009cv03439 - Document 16 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 6/28/2010 RECOMMENDING that respondent's 10 motion to dismiss be granted; and petitioner's 1 petition for writ of habeas corpus be dismissed. Referred to Judge William B. Shubb; Objections to F&R due w/in 14 days. (Yin, K)
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(HC) Farrell v. Barnes Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MITCHELL CLYDE FARRELL, Petitioner, 11 12 13 14 15 16 No. 2:09-cv-3439-WBS-JFM (HC) vs. R.E. BARNES, Respondent. / FINDINGS AND RECOMMENDATIONS Petitioner is a state prisoner proceeding through counsel with an application for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. With this petition, petitioner does not 18 challenge his underlying conviction and sentence. Rather, petitioner challenges a finding of guilt 19 following a prison disciplinary hearing held on November 29, 2008. Although initially charged 20 with theft, a “serious” violation, petitioner was found guilty of an administrative violation, 21 “Unauthorized acquisition of state property valued at $50 or less,” in violation of 15 Cal. Code 22 Regs. tit. 15, § 3006. Petitioner was assessed no loss of good time credit. Petitioner claims his 23 due process and equal protection rights were violated. 24 On February 26, 2010, respondent filed a motion to dismiss for failure to state 25 cognizable grounds for federal habeas relief. Petitioner filed an opposition to the motion, and 26 respondent has filed a reply. (Docket Nos. 13 & 14.) 1 Dockets.Justia.com Upon review of the motion and the documents in support and in opposition, and 1 2 good cause appearing therefor, THE COURT FINDS AS FOLLOWS: PROCEDURAL HISTORY 3 Petitioner filed a petition for writ of habeas corpus on December 11, 2009. 4 5 Therein, petitioner challenges a finding of guilt following a hearing in which petitioner was 6 initially charged with theft, a “serious” violation. (See Pet., Ex. A.) According to the Rule 7 Violation Report (“RVR”), an unidentified correctional officer observed petitioner passing a 8 brown paper bag, which was later confirmed to contain fourteen bars of State-issued soap, to 9 another inmate on November 18, 2008. (See Pet., Ex. B.) At the disciplinary hearing, petitioner 10 claimed he did not steal the soap, but was given the paper bag by one inmate to give to another. 11 He sought to call these two inmates as witnesses for the purpose of testifying that petitioner did 12 not steal. The hearing officer, however, did not call them as witnesses and instead accepted their 13 written affidavits, wherein they both stated that petitioner did not steal the soap, but was given 14 the paper bag by one inmate to give to the other. Based on the evidence before the hearing 15 board, petitioner was found guilty of the lesser, administrative offense of “Acquisition of state 16 property valued at $50 or less.” As punishment, petitioner was counseled and reprimanded. Petitioner brings his petition on due process and equal protection grounds, 17 18 claiming that he was denied the right to call witnesses, the RVR was based on hearsay, and he 19 was discriminated against because of his race (the two inmates who admitted to involvement in 20 the incident and who are not Caucasian were not charged with any crime, but petitioner, who is 21 Caucasian, was charged). Petitioner brings his claims in this habeas petition because he 22 contends the disciplinary violation will affect his future parole eligibility. On February 26, 2010, respondent filed a motion to dismiss. On April 22, 2010, 23 24 petitioner filed an opposition. On May 3, 2010, respondent filed a reply. 25 ///// 26 ///// 2 RESPONDENT’S MOTION TO DISMISS 1 Respondent seeks dismissal of the petition on three grounds. First, respondent 2 3 argues petitioner’s due process claims fail to state grounds for relief because he failed to show he 4 was deprived of any federally protected liberty interest. Second, respondent contends the 5 petition should be dismissed because petitioner has not shown how success on this petition 6 would shorten the duration of his confinement. Finally, respondent seeks dismissal of 7 petitioner’s equal protection claim on the ground that petitioner failed to show a real possibility 8 of constitutional error. STANDARDS FOR A MOTION TO DISMISS 9 Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to 10 11 dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 12 In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as 13 true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 14 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 15 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint 16 must contain more than “a formulaic recitation of the elements of a cause of action;” it must 17 contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell 18 Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, “[s]pecific facts are not 19 necessary; the statement [of facts] need only ‘give the defendant fair notice of what the . . . claim 20 is and the grounds upon which it rests.’” Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell 21 Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). On August 11, 2009, plaintiff received the notice required by Wyatt v. Terhune, 22 23 305 F.3d 1033 (9th Cir. 2002), for opposing a motion to dismiss for failure to exhaust 24 administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. 25 ///// 26 ///// 3 ANALYSIS 1 2 The court finds that the dispositive issue here is whether petitioner’s claims are 3 appropriately brought in a habeas petition. It is evident that petitioner is not contesting the fact 4 or duration of his confinement. Instead, petitioner is contesting a finding of guilt following a 5 disciplinary hearing in which no good time credits were revoked. Petitioner argues that the 6 disciplinary action may adversely affect his chances of a future parole suitability finding. 7 While the Constitution does not guarantee good-time credits for acceptable 8 behavior while in prison, Wolff v. McDonnell, 418 U.S. 539, 557 (1974), the Supreme Court has 9 held that where the state has created a right to earn credits, “due process requires procedural 10 protections before a prison inmate can be deprived of a protected liberty interest in good time 11 credits.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 453 (1985) (citing 12 Wolff, 418 U.S. at 557). Thus, an inmate who is deprived of good-time credits without first 13 having been afforded procedural due process may challenge the loss in a federal habeas petition. 14 Wolff, 418 U.S. at 557. However, petitioner makes no such claim in this case and, in fact, he 15 was not deprived of any good-time credits as a result of this incident. 16 Furthermore, although petitioner argues that his chances for future parole 17 eligibility may be negatively affected by the disciplinary action, the Supreme Court has held that 18 the mere possibility of an adverse parole decision does not implicate a liberty interest: 19 20 21 22 23 24 Nothing . . . requires the parole board to deny parole in the face of a misconduct record or to grant parole in its absence, even though misconduct is by regulation a relevant consideration. The decision to release a prisoner rests on a myriad of considerations. And, the prisoner is afforded procedural protection at his parole hearing in order to explain the circumstances behind his misconduct record. The chance that a finding of misconduct will alter the balance is simply too attenuated to invoke the procedural guarantees of the Due Process Clause. Sandin v. Conner, 515 U.S. 472, 487 (1995) (citations omitted). Therefore, this court recommends that the petition be dismissed for lack of 25 jurisdiction. Petitioner’s claims are more appropriately raised by way of complaint pursuant to 26 42 U.S.C. § 1983. 4 Having determined that the court is without jurisdiction over the petition, the 1 2 court need not address respondent’s remaining arguments. 3 Accordingly, IT IS HEREBY RECOMMENDED that: 4 1. Respondent’s February 26, 2010 motion to dismiss be granted; and 5 2. Petitioner’s December 11, 2009 petition for writ of habeas corpus be 6 dismissed. These findings and recommendations are submitted to the United States District 7 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: June 28, 2010. 16 17 18 19 /014.farr3439.mtd 20 21 22 23 24 25 26 5
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