Exmundo v. Trimble
Filing
7
FINDINGS and RECOMMENDATIONS to Dismiss the Petition Without Leave to Amend 1 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability; FINDINGS and RECOMMENDATIONS to Direct the Clerk to Close the Case and Send a Blank Civil Rights Complaint Form to Petitioner, OBJECTIONS DEADLINE: THIRTY (30) DAYS, signed by Magistrate Judge Barbara A. McAuliffe on 3/2/12. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EMELITO EXMUNDO,
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)
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Petitioner,
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v.
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R. H., TRIMBLE, Acting Warden,)
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Respondent.
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1:12-cv—00143–AWI-BAM-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION WITHOUT
LEAVE TO AMEND (Doc. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY
FINDINGS AND RECOMMENDATIONS TO
DIRECT THE CLERK TO CLOSE THE
CASE AND SEND A BLANK CIVIL
RIGHTS COMPLAINT FORM TO
PETITIONER
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OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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Petitioner is a state prisoner proceeding pro se and in
21
forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
The matter has been referred to the
23
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.
Pending before the Court is the petition,
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which was filed on January 31, 2012.
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I.
Screening the Petition
27
Rule 4 of the Rules Governing § 2254 Cases in the United
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1
1
States District Courts (Habeas Rules) requires the Court to make
2
a preliminary review of each petition for writ of habeas corpus.
3
The Court must summarily dismiss a petition "[i]f it plainly
4
appears from the petition and any attached exhibits that the
5
petitioner is not entitled to relief in the district court....”
6
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
7
1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
8
1990).
9
grounds of relief available to the Petitioner; 2) state the facts
Habeas Rule 2(c) requires that a petition 1) specify all
10
supporting each ground; and 3) state the relief requested.
11
Notice pleading is not sufficient; rather, the petition must
12
state facts that point to a real possibility of constitutional
13
error.
14
O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
15
Allison, 431 U.S. 63, 75 n.7 (1977)).
16
that are vague, conclusory, or palpably incredible are subject to
17
summary dismissal.
18
Cir. 1990).
19
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
20
corpus either on its own motion under Habeas Rule 4, pursuant to
21
the respondent's motion to dismiss, or after an answer to the
22
petition has been filed.
23
8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
24
(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
25
A petition for habeas corpus should not be dismissed without
26
leave to amend unless it appears that no tenable claim for relief
27
can be pleaded were such leave granted.
28
F.2d 13, 14 (9th Cir. 1971).
2
Jarvis v. Nelson, 440
1
Here, Petitioner alleges that he is an inmate of the
2
Pleasant Valley State Prison (PVSP) located at Coalinga,
3
California.
4
of credit as a result of a disciplinary finding by prison
5
authorities that he had possessed an unauthorized medication.
6
Petitioner raises the following claims: 1) the finding was based
7
on evidence obtained by an unconstitutional search and seizure in
8
the form of a cell search undertaken pursuant to an allegation
9
made in retaliation for Petitioner’s refusal to withdraw a
Petitioner complains that he lost thirty (30) days
10
grievance he had filed, and therefore in violation of
11
Petitioner’s First Amendment rights; 2) the finding was based on
12
a failure to provide Petitioner with evidence that he had
13
requested, including a) a rules violation report (RVR) concerning
14
Petitioner’s cellmate, inmate Leon, who Petitioner believed had
15
admitted to ownership or responsibility for the unauthorized
16
medication in the cell, b) the number of a previous grievance
17
filed by Petitioner, which would have supported Petitioner’s
18
claim of retaliation, and c) a laboratory test to identify the
19
medication, which Petitioner contends was required by specified
20
California regulations, and without which a prison pharmacist’s
21
identification of the medication was insufficient; 3) Petitioner
22
failed to receive notice twenty-four hours in advance of the
23
hearing with respect to a new, lesser violation of possession of
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an unauthorized medication that the hearing officer ultimately
25
found that Petitioner had committed, which deprived Petitioner of
26
his right to prepare a defense to the new charge; and 4) the
27
hearing officer was biased because he predetermined the issue of
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Petitioner’s guilt as demonstrated by his failure to ask
3
1
Petitioner how he pled or to ask him anything about the evidence,
2
and his announcement that he was changing the charge and finding
3
Petitioner guilty.
(Pet. 4-5, 7.)
4
II.
5
Because the petition was filed after April 24, 1996, the
Retaliatory and Unreasonable Cell Search
6
effective date of the Antiterrorism and Effective Death Penalty
7
Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
8
v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
9
(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
10
A district court may entertain a petition for a writ of
11
habeas corpus by a person in custody pursuant to the judgment of
12
a state court only on the ground that the custody is in violation
13
of the Constitution, laws, or treaties of the United States.
14
U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362,
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375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13,
16
16 (2010) (per curiam).
17
28
Title 28 U.S.C. § 2254 provides in pertinent part:
18
Lindh
(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–
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(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
(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.
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27
28
Clearly established federal law refers to the holdings, as
opposed to the dicta, of the decisions of the Supreme Court as of
4
1
the time of the relevant state court decision.
2
Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
3
Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S.
4
362, 412 (2000).
5
principles set forth by the Supreme Court at the pertinent time.
6
Lockyer v. Andrade, 538 U.S. 71-72.
Cullen v.
It is thus the governing legal principle or
7
To the extent that Petitioner’s claim concerning the
8
disciplinary adjudication and resulting credit loss rests on an
9
allegedly unreasonable cell search and seizure of cell contents
10
in violation of the Fourth and Fourteenth Amendments, it appears
11
that Petitioner is actually challenging the evidence relied upon
12
at the prison disciplinary hearing, which included reports
13
concerning medications which were found in the search of the
14
cell.
15
The Court is aware of no clearly established federal law
16
that would require the application of the exclusionary rule to
17
prison disciplinary proceedings.
18
declined to extend the exclusionary rule to proceedings other
19
than criminal trial proceedings.
20
Probation and Parole v. Scott, 524 U.S. 357, 363 (1998), the
21
Court held that the exclusionary rule does not apply to state
22
parole revocation proceedings, and the Court emphasized its
23
previous decisions to decline to apply the exclusionary rule to
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grand jury proceedings, civil tax proceedings, and civil
25
deportation proceedings.
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exclusionary rule was incompatible with the traditionally
27
flexible, administrative procedures of parole revocation, which
28
affect only a conditional liberty and do not require the full
Instead, the Supreme Court has
In Pennsylvania Board of
The Court emphasized that the
5
1
panoply of due process protections applicable to a criminal
2
trial; further, the states have wide latitude under the
3
Constitution to structure parole revocation proceedings, which
4
usually involve informal, administrative procedures conducted by
5
non-judicial staff, and which are not governed by the traditional
6
rules of evidence.
Id. at 364-67.
7
The Court’s reasoning in Scott applies with even greater
8
force in the context of prison disciplinary proceedings, in which
9
it is acknowledged that prison authorities have special expertise
10
and broad discretion to carry out strong state interests in
11
institutional control and safety, and due process procedural
12
protections are limited to advance written notice of the claimed
13
violation, a right to call witnesses and present documentary
14
evidence where it would not be unduly hazardous to institutional
15
safety or correctional goals, and a written statement of the
16
finder of fact as to the evidence relied upon and the reasons for
17
disciplinary action taken.
18
563-64 (1974).
19
relatively informal, prison staff serve as adjudicators, and the
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formal rules of evidence do not apply; indeed, the requirements
21
of due process are satisfied if some evidence supports the
22
decision by the prison disciplinary board to revoke good time
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credits.
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court reviewing a prison disciplinary hearing is not required to
25
examine the entire record, independently assess the credibility
26
of witnesses, or weigh the evidence; instead, the relevant
27
question is whether there is any evidence in the record that
28
could support the conclusion reached by the disciplinary board.
Wolff v. McDonnell, 418 U.S. 539,
Likewise, prison disciplinary procedures are
Superintendent v. Hill, 472 U.S. 445, 454 (1985).
6
A
1
2
Superintendent v. Hill, 472 U.S. at 455-56.
Here, the disciplinary finding that Petitioner possessed
3
restricted medications was supported by some evidence in the form
4
of 1) the reporting employee’s report of the search and the
5
discovery of the medications, which included Petitioner’s
6
admission that the drugs were his, and 2) the pharmacist’s drug
7
report.
8
9
10
(Pet. 40, 45-46.)
Further, as the following analysis will show, Petitioner was
not deprived of other procedural due process of law.
In addition to the absence of an evidentiary remedy for
11
Petitioner’s claim, it is established that prisoners’
12
constitutional rights are subject to substantial limitations and
13
restrictions in order to allow prison officials to achieve
14
legitimate correctional goals and maintain institutional
15
security.
16
(1987); Bell v. Wolfish, 441 U.S. 520, 545-47 (1979).
17
have no reasonable expectation of privacy in their prison cells,
18
and the Fourth Amendment’s prohibition of unreasonable searches
19
does not apply where prison officials conduct random or routine
20
searches of an inmate’s cell.
21
529-30.
22
are calculated for the purpose of harassment unrelated to prison
23
needs.
24
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348-49
Prisoners
Hudson v. Palmer, 468 U.S. 517,
Prisoners are protected, however, against searches that
Hudson v. Palmer, 468 U.S. at 530.
Notwithstanding the language in Hudson, in this circuit it
25
has been held that the Fourth Amendment right of people to be
26
secure against unreasonable searches and seizures “extends to
27
incarcerated prisoners; however, the reasonableness of a
28
particular search is determined by reference to the prison
7
1
context.”
2
1988).
3
were reasonably related to legitimate penological interests and
4
were reasonable in light of the balancing test set forth by the
5
Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979).
6
Michenfelder, 860 F.2d at 333.
7
Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.
In Michenfelder, it was concluded that strip searches
Here, Correctional Officer Gallegos was conducting a cell
8
search in an apparently routine manner and found the pills in a
9
desk.
Petitioner alleges that his past complaints against other
10
officers and medical personnel in the prison were the genesis of
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prison authorities’ decision to search his cell.
12
focus of this habeas corpus proceeding is not Petitioner’s
13
conditions of confinement, but rather the imposition of a
14
disciplinary sanction of loss of time credits, a matter affecting
15
the legality or duration of Petitioner’s confinement.
16
context, the significant factors are the searching officers’ use
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of reasonable means to discover restricted medications in
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Petitioner’s cell and Petitioner’s admission that the drugs were
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his.
20
submitted by Petitioner reflects that the search proceeded in a
21
reasonable manner, and it revealed that present in the cell were
22
medications that Petitioner admitted he possessed and that prison
23
authorities in their discretion judged to be antithetical to the
24
order and safety of the inmate population and to institutional
25
security.
26
effectuated in a reasonable manner and pursuant to valid
27
penological objectives.
28
documentation of the incident, the search was reasonable.
(Pet. at 40.)
However, the
In this
All the documentation of the search
The documentation thus establishes that the search was
Based on what appears to be complete
8
1
It is concluded that Petitioner has not met his burden of
2
showing that the means or object of the search exceeded
3
appropriate penological bounds.
4
333.
5
6
7
See, Michenfelder, 860 F.2d at
In summary, Petitioner has not stated facts with respect to
the search that would entitle him to habeas corpus relief.
To the extent that Petitioner claims that the cell search
8
was retaliatory and violated his First Amendment rights,
9
Petitioner appears to be complaining of his conditions of
10
confinement.
11
Cir. 2005).
12
See, Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th
A habeas corpus petition is the correct method for a
13
prisoner to challenge the legality or duration of his
14
confinement.
15
(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973));
16
Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
17
contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is
18
the proper method for a prisoner to challenge the conditions of
19
that confinement.
20
(1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574;
21
Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
22
Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)
In
McCarthy v. Bronson, 500 U.S. 136, 141-42
To the extent that Petitioner’s allegations concern only the
23
conditions of his confinement, Petitioner does not allege facts
24
that point to a real possibility of constitutional error that
25
affects the legality or duration of his confinement.
26
Petitioner is not entitled to habeas corpus relief, and his claim
27
should be dismissed.
28
Thus,
Further, it appears that in all important respects, the
9
1
complete record of the disciplinary proceedings has been
2
submitted to the Court with the petition.
3
appear that Petitioner could state a tenable claim for habeas
4
corpus relief if he were granted leave to amend this claim.
5
Therefore, it will be recommended that the claim of a retaliatory
6
and unreasonable search and seizure be dismissed without leave to
7
amend.
8
9
Thus, it does not
Should Petitioner wish to pursue his conditions claim, he
must do so by way of a civil rights complaint pursuant to 42
10
U.S.C. § 1983.
11
form complaint to Petitioner.
The Clerk will be directed to send an appropriate
12
III.
13
Petitioner claims that the disciplinary finding was a result
Claims concerning the Evidence
14
of the failure to provide Petitioner with evidence that he had
15
requested, including a) the RVR concerning Petitioner’s cell
16
mate, inmate Leon, who Petitioner believed had admitted to
17
ownership or responsibility for any drugs in the cell, b) the
18
number or report of the previous grievance, which would have
19
supported Petitioner’s claim of retaliation, and c) a lab test or
20
identification of the medication as required by specified
21
California regulations.
22
identification of the medication was insufficient because he
23
failed to indicate if a controlled substance was in the
24
medication.
25
Petitioner argues that the pharmacist’s
As previously noted, the requirements of procedural due
26
process in the context of prison disciplinary proceedings are
27
minimal.
28
documentary evidence if it was not unduly hazardous to
Petitioner had a right to call witnesses and present
10
1
institutional safety or correctional goals.
2
418 U.S. at 563-64.
Wolff v. McDonnell,
3
Here, the documentation submitted by Petitioner reflects
4
that Petitioner did not request any witnesses at the hearing.
5
(Pet. 44.)
6
his cell mate, inmate Leon, made in his respective RVR, be
7
introduced at the hearing.
8
request on the grounds that the RVR was not authorized for the
9
particular hearing; however, the officer noted that Petitioner
Petitioner did request that the written statement of
The hearing officer denied the
10
could have called inmate Leon as a witness.
11
appears from the documentation that Petitioner chose not to do
12
so.
13
(Id.)
It clearly
In this respect Petitioner has failed to show how the
14
hearing officer’s ruling was prejudicial.
15
introducing Leon’s statement would have been to show that it was
16
Petitioner’s cell mate who was responsible for the drugs in the
17
cell.
18
have testified to his responsibility, if any, for the presence of
19
the medication in the cell.
20
does not appear to have resulted in any prejudicial effect.
21
The purpose of
If Petitioner had called Leon as a witness, Leon could
Thus, the hearing officer’s ruling
It is recognized that generally, a failure to meet a prison
22
guideline regarding a disciplinary hearing would not alone
23
constitute a denial of due process.
24
F.2d 1267, 1270 (9th Cir. 1989).
25
authority, several courts have concluded that to establish a
26
denial of due process of law, prejudice is generally required.
27
See, Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also
28
Tien v. Sisto, Civ. No. 2:07-cv-02436-VAP (HC), 2010 WL 1236308,
11
See, Bostic v. Carlson, 884
In the absence of controlling
1
at *4 (E.D.Cal. Mar. 26, 2010) (“While neither the United States
2
Supreme Court or the Ninth Circuit Court of Appeals has spoken on
3
the issue, numerous federal Courts of Appeals, as well as courts
4
in this district, have held that a prisoner must show prejudice
5
to state a habeas claim based on an alleged due process violation
6
in a disciplinary proceeding”) (citing Pilgrim v. Luther, 571
7
F.3d 201, 206 (2d Cir. 2009); Howard v. United States Bureau of
8
Prisons, 487 F.3d 808, 813 (10th Cir. 2007); Piggie v. Cotton,
9
342 F.3d 660, 666 (7th Cir. 2003); Elkin v. Fauver, 969 F.2d 48,
10
53 (3d Cir. 1992); Poon v. Carey, No. Civ. S-05-0801 JAM EFB P,
11
2008 WL 5381964, at *5 (E.D.Cal. Dec. 22, 2008); Gonzalez v.
12
Clark, No. 1:07-CV-0220 AWI JMD HC, 2008 WL 4601495, at *4
13
(E.D.Cal. Oct. 15, 2008)).
14
Petitioner states that the written statement of the inmate
15
could not have been falsified.
16
opportunity to call the witness himself and could have personally
17
asked the inmate any questions concerning the incident.
18
Petitioner could have called the inmate, Petitioner cannot show
19
that the denial of permission to introduce the report caused him
20
any harm.
21
However, Petitioner had the
Because
With respect to the number or report of the Petitioner’s
22
previous grievance, which Petitioner contends would have
23
supported Petitioner’s claim of retaliation, the hearing officer
24
denied Petitioner’s request because the “602" form filed against
25
officers Kahn and Diaz was irrelevant because the RVR against
26
Petitioner had been written by Officer Gallegos, and not by one
27
of the other officers involved in the grievance.
28
(Pet. 44.)
The right to call witnesses and to present evidence at a
12
1
disciplinary hearing is limited by the prison authorities’
2
discretion concerning undue hazards to institutional safety or
3
correctional goals.
4
The right to call witnesses is circumscribed by the necessary
5
mutual accommodation between institutional needs and objectives
6
and the provisions of the Constitution that are of general
7
application; thus, the Supreme Court has noted that a
8
disciplinary authority may decline to allow an inmate to call a
9
witness for irrelevance, lack of necessity, or hazards presented
Wolff v. McDonnell, 418 U.S. at 563-64.
10
in individual cases.
11
(1976).
12
inmate's request to call witnesses may properly be denied as
13
irrelevant, unnecessary, unduly prolonging the hearing, or
14
jeopardizing of prison safety, is entitled to deference from the
15
Court.
16
Real, 471 U.S. 491, 497-98 (1985); Neal v. Shimoda, 131 F.3d 818,
17
831 (9th Cir. 1997); Zimmerlee v. Keeney, 831 F.2d 183, 187 (9th
18
Cir. 1987).
19
Baxter v. Palmigiano, 425 U.S. 308, 321
A prison disciplinary hearing officer's decision that an
See, Wolff v. McDonnell, 418 U.S. at 563-64; Ponte v.
Here, Petitioner has not shown that the hearing officer’s
20
decision to exclude information concerning the unrelated
21
grievance was unreasonable or an abuse of discretion.
22
has not submitted any information that would render the hearing
23
officer’s decision arbitrary or unreasonable.
24
alleged any specific facts showing how the evidence was relevant
25
to entirely different charges involving a different incident.
26
Petitioner has not suggested how the previous grievance would
27
have any bearing on the fairness of the disciplinary processes or
28
Petitioner’s admitted responsibility for the disciplinary
13
Petitioner
Petitioner has not
1
misconduct in the present case.
2
Petitioner’s case do not point to a real possibility of
3
constitutional error, Petitioner’s claim concerning evidence of
4
the previous grievance should be dismissed.
Because the facts of
5
With respect to the absence of laboratory testing of the
6
medication found in Petitioner’s cell, the hearing officer denied
7
Petitioner’s request for testing because a state regulation
8
provided that testing was not necessary where the identification
9
of the medication had been confirmed by a pharmacist.
(Pet. 44.)
10
The documentation establishes that Petitioner was found to have
11
been in possession of Gabapentin and Tramadol, which were
12
classified not as controlled substances, but as drugs that were
13
to be consumed by direct observation therapy only, or,
14
specifically, not to be in the possession of an inmate outside
15
the direct supervision of medical staff.
16
(Id. at 46.)
Further, because Petitioner was ultimately adjudicated as
17
having been responsible for possessing only an unauthorized
18
medication, as distinct from a medication containing a controlled
19
substance, Petitioner does not show how he suffered any prejudice
20
from the absence of drug testing for a controlled substance.
21
prison pharmacist’s report of the pharmacist’s own observation of
22
the physical characteristics of pharmaceuticals that had been
23
dispensed within the institution constituted some evidence in
24
support of the hearing officer’s decision.
25
met constitutional standards.
26
A
Thus, the evidence
Accordingly, it is concluded that with respect to his claims
27
related to the evidence at the hearing, Petitioner is not
28
entitled to relief.
The documentation submitted by Petitioner in
14
1
support of the petition shows that Petitioner has not stated
2
claims warranting relief in a proceeding pursuant to § 2254.
3
It will thus be recommended that the claims be dismissed.
4
IV.
5
Although Petitioner does not challenge the notice he
Sufficiency of Notice of the Accusation
6
received concerning the charge of possessing medication
7
containing a controlled substance, he complains that with respect
8
to the lesser charge of possessing medication that was only for
9
direct observation therapy (DOT), he received notice only after
10
the hearing when the hearing officer informed him that the
11
adjudication would be of the lesser charge.
12
of a failure to receive notice of the new, lesser charge twenty-
13
four hours in advance of the hearing, which he generally asserts
14
deprived him of an opportunity to prepare a defense to the
15
charge.
16
Petitioner complains
In Bostic v. Carlson, 884 F.2d 1267, 1270-71 (9th Cir.
17
1989), an inmate was found to have committed the disciplinary
18
violation of possession of contraband (stolen sandwiches) and was
19
assessed a forfeiture of thirty days of credit.
20
report, the violation was described as “stealing.”
21
sought relief under § 2241 for alleged due process violations.
22
The court stated the following with respect to the adequacy of
23
the notice given to the prisoner:
24
25
26
27
28
In the incident
The prisoner
Nor does appellant assert that the officer's
description of the incident as “stealing” rather than
as “possession of contraband” in the incident report
deprived him of the opportunity to present a proper
defense. The incident report described the factual
situation that was the basis for the finding of guilt
of possession of contraband and alerted Bostic that
he would be charged with possessing something he did
not own. Cf. Wolff, 418 U.S. at 563-64, 94 S.Ct. at
15
1
2
3
2978-79 (stating that “the function of [the] notice
[of a claimed violation] is to give the charged party
a chance to marshal the facts in his defense and to
clarify what the charges are”). The incident report
adequately performed the functions of notice described
in Wolff. See id.
4
Bostic v. Carlson, 884 F.2d at 1270-71.
5
Here, the RVR described the factual situation that was the
6
basis for the finding of guilt of either offense and alerted
7
Petitioner that he would be charged with possessing a drug that
8
he was not supposed to have possessed in his cell.
Petitioner
9
has not stated how his defense to the charge would have been
10
different had the charging allegation been different.
In view of
11
Petitioner’s documented admission that he possessed the drug, it
12
is difficult for the Court to envision what defense Petitioner
13
would have offered.
Petitioner has failed to show how he
14
suffered any confusion, loss of opportunity to defend, or other
15
prejudice from the hearing officer’s reduction of the charge
16
after the hearing.
17
It is concluded that Petitioner has not alleged facts that
18
show that his right to due process of law was violated by the
19
notice given to him concerning the disciplinary offenses.
20
It will thus be recommended that Petitioner’s claim be
21
dismissed.
22
V.
Bias of the Hearing Officer
23
Petitioner argues that the hearing officer was biased
24
because he predetermined the issue of Petitioner’s guilt as
25
demonstrated by his failure to ask Petitioner how he pled or to
26
ask him anything about the evidence, and his announcement that he
27
was changing the charge and finding Petitioner guilty.
28
16
1
2
3
A fair trial in a fair tribunal is a basic requirement of
due process.
In re Murchison, 349 U.S. 133, 136 (1955).
With respect to the employment of prison staff to adjudicate
4
disciplinary charges, the Supreme Court has ruled that a
5
committee of correctional officers and staff, acting with the
6
purpose of taking necessary disciplinary measures to control
7
inmate behavior within acceptable limits, was sufficiently
8
impartial to conduct disciplinary hearings and impose penalties
9
that included revocation of good time credits.
10
11
Wolff v.
McDonnell, 418 U.S. 539, 570-71 (1974).
More generally, fairness requires an absence of actual
12
bias and of the probability of unfairness.
13
be actual, or it may consist of the appearance of partiality in
14
the absence of actual bias.
15
(9th Cir. 1995).
16
or reasonably appears to have prejudged, an issue is sufficient.
17
Kenneally v. Lungren, 967 F.2d 329, 333 (9th Cir. 1992).
Id. at 136.
Bias may
Stivers v. Pierce, 71 F.3d 732, 741
A showing that the adjudicator has prejudged,
18
However, there is a presumption of honesty and integrity on
19
the part of decision makers which may be overcome by evidence of
20
a risk of actual bias or prejudgment based on special facts and
21
circumstances.
22
Withrow v. Larkin, 421 U.S. 35, 46-47, 58 (1975).
The mere fact that a decision maker denies relief in a given
23
case or has denied relief in the vast majority of cases does not
24
demonstrate bias.
25
because unfavorable judicial rulings alone are generally
26
insufficient to demonstrate bias unless they reflect such extreme
27
favoritism or antagonism that the exercise of fair judgment is
28
precluded.
Stivers v. Pierce, 71 F.3d at 742.
This is
Liteky v. United States, 510 U.S. 540, 555 (1994).
17
1
Here, the documentation provided by Petitioner reflects that
2
the charge was read to Petitioner, and Petitioner pled not guilty
3
and stated that he was not guilty of unauthorized possession of a
4
controlled substance.
5
in his defense the fact that the pharmacist did not identify the
6
substance contained in the medication, and he stated that the
7
language (presumably “controlled substance”) belonged in the
8
Health and Safety Code.
9
Further, it notes that Petitioner asserted
(Pet. 44.)
Thus, it appears that the question of Petitioner’s plea to
10
the violation was raised at the hearing, and that Petitioner
11
entered a plea.
12
Further, Petitioner was not entitled to be examined at the
13
hearing, so the hearing officer’s failure to do so is not
14
probative of bias.
15
The mere fact that the hearing officer found Petitioner
16
guilty is not sufficient to establish bias.
17
of guilt of a lesser offense after the conclusion of the hearing
18
appears to have benefitted Petitioner and not to have harmed him.
19
The documentation does not contain any specific facts that would
20
overcome the presumption that the hearing officer was impartial.
21
It is thus concluded that the fully documented facts submitted by
22
Petitioner do not point to a real possibility of constitutional
23
error in connection with hearing officer’s impartiality.
24
It is concluded that the claim should be dismissed.
25
In summary, the allegations of the petition and the
Further, the finding
26
supporting documentation demonstrate that Petitioner is not
27
entitled to relief on his claims concerning the disciplinary
28
proceedings that resulted in the finding that he possessed an
18
1
unauthorized medication.
2
documented, it does not appear that Petitioner could state a
3
tenable claim for relief if leave to amend were granted.
4
Accordingly, it will be recommended that the petition be
5
dismissed without leave to amend.
Because all the claims are fully
6
VI.
7
Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
8
appealability, an appeal may not be taken to the Court of Appeals
9
from the final order in a habeas proceeding in which the
10
detention complained of arises out of process issued by a state
11
court.
12
U.S. 322, 336 (2003).
13
only if the applicant makes a substantial showing of the denial
14
of a constitutional right.
15
petitioner must show that reasonable jurists could debate whether
16
the petition should have been resolved in a different manner or
17
that the issues presented were adequate to deserve encouragement
18
to proceed further.
19
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
20
certificate should issue if the Petitioner shows that jurists of
21
reason would find it debatable whether the petition states a
22
valid claim of the denial of a constitutional right and that
23
jurists of reason would find it debatable whether the district
24
court was correct in any procedural ruling.
25
529 U.S. 473, 483-84 (2000).
26
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue
§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
A
Slack v. McDaniel,
In determining this issue, a court conducts an overview of
27
the claims in the habeas petition, generally assesses their
28
merits, and determines whether the resolution was debatable among
19
1
jurists of reason or wrong.
2
applicant to show more than an absence of frivolity or the
3
existence of mere good faith; however, it is not necessary for an
4
applicant to show that the appeal will succeed.
5
Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
6
A district court must issue or deny a certificate of
7
appealability when it enters a final order adverse to the
8
applicant.
9
Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
10
debate whether the petition should have been resolved in a
11
different manner.
12
of the denial of a constitutional right.
13
14
Petitioner has not made a substantial showing
Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.
15
VII.
16
In accordance with the foregoing, it is RECOMMENDED that:
17
1)
Recommendations
The petition be DISMISSED without leave to amend because
18
Petitioner has failed to state facts entitling him to relief in a
19
proceeding pursuant to 28 U.S.C. § 2254; and
20
21
22
2)
The Court DECLINE to issue a certificate of
appealability; and
3)
The Clerk be DIRECTED to send to Petitioner a blank
23
civil rights complaint form, and to close the case because an
24
order of dismissal would terminate the action in its entirety.
25
These findings and recommendations are submitted to the
26
United States District Court Judge assigned to the case, pursuant
27
to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
28
the Local Rules of Practice for the United States District Court,
20
1
Eastern District of California.
2
being served with a copy, any party may file written objections
3
with the Court and serve a copy on all parties.
4
should be captioned “Objections to Magistrate Judge’s Findings
5
and Recommendations.”
6
and filed within fourteen (14) days (plus three (3) days if
7
served by mail) after service of the objections.
8
then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
9
§ 636 (b)(1)(C).
Within thirty (30) days after
Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
10
objections within the specified time may waive the right to
11
appeal the District Court’s order.
12
1153 (9th Cir. 1991).
13
14
Martinez v. Ylst, 951 F.2d
IT IS SO ORDERED.
Dated:
10c20k
March 2, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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