Hudson v. Yates

Filing 6

ORDER Dismissing Claim Two From Petition (Doc. 1 ), signed by Magistrate Judge Dennis L. Beck on 4/19/2010. It is ORDERED that Ground Two of the Petition is dismissed for failure to state a cognizable claim under 28 U.S.C. 2254.(Scrivner, E)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 JAMES A. YATES, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the 17 jurisdiction of the United States Magistrate Judge. Local Rule 305(b). 18 Petitioner filed the instant petition on January 7, 2010. (Court Doc. 1.) Petitioner 19 challenges a rules violation he received for attempted murder. He claims that the violation was 20 based on falsified evidence and should be expunged from his record. Petitioner also challenges 21 the prison's failure to respond to his administrative grievance. The latter claim is not cognizable 22 under section 2254. 23 DISCUSSION 24 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 25 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 26 plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 27 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 28 1 / v. [Doc. 1] MARCO HUDSON, Petitioner, 1:10-cv-00037-DLB (HC) ORDER DISMISSING CLAIM TWO FROM PETITION

UNITED STATES DISTRICT COURT

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(9th Cir.1990). A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the "legality or duration" of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991), quoting, Preiser v. Rodriguez, 411 U.S. 475, 485 (1973); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In Ground Two of the Petition, Petitioner contends that officer Guerra failed to respond to his inmate grievance. "[A prison] grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates." Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (citing Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982)); see also Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (no liberty interest in processing of appeals because no entitlement to a specific grievance procedure); Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (existence of grievance procedure confers no liberty interest on prisoner); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988). The fact that Petitioner did not receive a response to his inmate grievance does not challenge the "legality or duration" of his confinement and is not cognizable under section 2254. Accordingly, it must be dismissed. However, the action will proceed on Ground One of the Petition and an order directing Respondent to submit a response is issued concurrently herewith. ORDER Based on the foregoing, it is HEREBY ORDERED that Ground Two of the Petition is dismissed for failure to state a cognizable claim under 28 U.S.C. § 2254. IT IS SO ORDERED. Dated: 3b142a

April 19, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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