Daniel Bennett v. D. Shinn

Filing 5

ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED by Magistrate Judge John D. Early. on or before October 19, 2017, Petitioner shall show cause, in writing, why this action should not be dismissed without prejudice for: (a) failing to attack the legality or duration of Petitioners confinement; and (b) failing to allege any prejudice, that is, negative consequences, caused by the alleged due process violation. If Plaintiff believes he can cure the defects in the Petition described above, Peti tioner shall file an amended petition, entitled First Amended Petition, fully executed, setting forth his claims in full, including any additional averments necessary to cure the defects set forth above. (See Order for further details) (Attachments: # 1 blank Civil Rights Complaint form, # 2 blank Notice of Dismissal form) (ig)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 17-01833 VBF (JDE)

Title

Daniel Bennett v. Warden D. Shinn

Present: The Honorable

Date

September 19, 2017

John D. Early

Ivette Gomez

n/a

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

Proceedings: (In Chambers)

Order to Show Cause Why Case Should Not Be Dismissed

I.
INTRODUCTION
On September 8, 2017, Petitioner, a federal prisoner currently housed at the United States
Penitentiary in Adelanto, California (the “Prison”), proceeding pro se and seeking to proceed in
forma pauperis, filed a Petition for Writ of Habeas Corpus By a Person in Federal Custody
(“Petition” or “Pet.”) pursuant to 28 U.S.C. § 2241. Dkt. 1. Petitioner asserts that, while an inmate
at the Prison, his due process rights were violated in connection with a disciplinary sanction
because: (1) he did not receive a copy of the “DHO report”; (2) he was found guilty without a
recital of “the weight of the evidence”; (3) he did not receive a “fair and impartial hearing.” Pet. at
3. Petitioner attaches copies of two Federal Bureau of Prisons (“BOP”) appeals forms with his
name and what purports to be his signature. (Pet. at 8, 10.) In one of the handwritten appeals
forms, Petitioner requests that “I either be given a new hearing (re-hearing) or it be expunged
altogether.” (Pet. at 8.).
II.
DISCUSSION
“According to traditional interpretation, the writ of habeas corpus is limited to attacks upon
the legality or duration of confinement.” Crawford v. Bell, 599 F.2d 890, 891 (9th Cir. 1979) (citing
Preiser v. Rodriguez, 411 U.S. 475, 484–86 (1973)). Habeas corpus is not available to challenge an
inmate’s conditions of confinement unless the conditions impact the legality or duration of the
confinement. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (explaining 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”) (internal
citations and quotations omitted); see also Greenhill v. Lappin, 376 Fed. App’x 757, 758 (9th Cir.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 17-01833 VBF (JDE)

Title

Date

September 19, 2017

Daniel Bennett v. Warden D. Shinn

2010) (federal prisoner’s claim that prison officials retaliated against him by mishandling his legal
mail not cognizable in habeas corpus).
“[H]abeas jurisdiction is absent, and a [civil rights] action proper, where a successful
challenge to a prison condition will not necessarily shorten a prisoner’s sentence.” Ramirez, 334
F.3d at 859; see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) (“It is well-settled
law that prisoners who wish to challenge only the conditions of their confinement, as opposed to its
fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or
Bivens[ v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 (1971)]. .
. . not through federal habeas proceedings.”).
In addition, several courts have concluded that to establish a denial of due process of law,
prejudice is generally required. See Brecht v. Abrahamson, 507 U.S. 619, 637, (1993) (proceeding
pursuant to 28 U.S.C. § 2254); see also Tien v. Sisto, 2010 WL 1236308, at *4 (E.D. Cal. Mar. 26,
2010) (recognizing that while neither the Supreme Court nor the Ninth Circuit has spoken on the
issue, numerous federal Courts of Appeals, and district courts within the Ninth Circuit, have held
that a prisoner must show prejudice to state a habeas claim based on an alleged due process
violation in a disciplinary proceeding, citing Pilgrim v. Luther, 571 F.3d 201, 206 (2d Cir. 2009);
Howard v. United States Bureau of Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton,
342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48, 53 (3d Cir. 1992); Poon v. Carey,
2008 WL 5381964, at *5 (E.D. Cal. Dec. 22, 2008); and Gonzalez v. Clark, 2008 WL 4601495, at
*4 (E.D. Cal. Oct. 15, 2008)); see also Smith v. U.S. Parole Comm’n, 875 F.2d 1361, 1368–69 (9th
Cir.1988) (holding in a § 2241 proceeding that a prisoner, who challenged the government's
delayed compliance with a procedural regulation that required counsel to be appointed before a
record review in parole revocation proceedings, was required to demonstrate prejudice to be
entitled to habeas relief); Standlee v. Rhay, 557 F.2d 1303, 1307–08 (9th Cir. 1977) (stating that
burden is on a parolee to demonstrate that failure to permit a witness's live testimony at a
revocation hearing was so prejudicial as to violate due process).
In the present case, the sole basis for the Petition does not, on its face, attack the legality or
duration of Petitioner’s confinement. In fact, the Petition does not make reference to any impact on
Petitioner’s confinement. Pet. at 7-8. As a result, habeas jurisdiction is absent on the face of the
Petition. Further, the Petitioner does not allege any prejudice, that is, negative consequences
directly affecting Petitioner, allegedly caused by the alleged due process violation policy.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

EDCV 17-01833 VBF (JDE)

Title

Date

September 19, 2017

Daniel Bennett v. Warden D. Shinn
III.
ORDER
IT THEREFORE IS ORDERED that, on or before October 19, 2017:
1. Petitioner shall show cause, in writing, why this action should not be dismissed without
prejudice for: (a) failing to attack the legality or duration of Petitioner’s confinement;
and (b) failing to allege any prejudice, that is, negative consequences, caused by the
alleged due process violation; and
2. If Plaintiff believes he can cure the defects in the Petition described above, Petitioner
shall file an amended petition, entitled First Amended Petition, fully executed, setting
forth his claims in full, including any additional averments necessary to cure the defects
set forth above.

Instead of filing a written response to the matters addressed in this Order, Plaintiff may
voluntarily dismiss the action by filing a Notice of Dismissal form pursuant to Rule 41 of the
Federal Rules of Civil Procedure. The Clerk is directed to provide Plaintiff with a blank Notice of
Dismissal Form (CV-09) and a blank Central District Civil Rights Complaint Form (CV-66).
The Court warns Petitioner that failure to timely file a response to this Order may result
in the Court dismissing this action with prejudice as untimely and for failure to prosecute and
comply with Court orders. See Fed. R. Civ. P. 41(b)

Initials of Courtroom Deputy

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