Lemon v. Benov

Filing 22

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus and Direct the Clerk to Close the Case; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 10/28/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/2/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ROHAN ST. AURBY LEMON,

Case No. 1:13-cv-00481-AWI-SKO-HC

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FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1) AND DIRECT
THE CLERK TO CLOSE THE CASE

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Petitioner,
v.

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MICHAEL L. BENOV, Warden,
Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

Petitioner is a federal prisoner proceeding pro se and in forma

18 pauperis with a petition for writ of habeas corpus pursuant to 28
19 U.S.C. § 2241.

The matter has been referred to the Magistrate Judge

20 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
21 Pending before the Court is the petition, which was filed on April
22 3, 2013.

Respondent filed an answer on June 20, 2013, and

23 Petitioner filed a traverse on July 3, 2013.

Further, without

24 objection, Respondent filed a reply and a supplement thereto on July
25 10 and 12, 2013.

Petitioner has neither responded to Respondent’s

26 filings nor sought an extension of time to respond to them.
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I.

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Petitioner, an inmate of the Taft Correctional Institution

Background

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1 (TCI), challenges the loss of fifty-four days of good time credit
2 that Petitioner suffered as a result of prison disciplinary findings
3 he engaged in fighting on January 4, 2001, and sexual acts on
4 October 3, 2000.

(Pet., doc. 1 at 7, 11-15.)

5 the loss of credit and seeks release.
6 following claims in the petition:

Petitioner challenges

(Id. at 3.)

He raises the

1) because the disciplinary

7 hearing officer was not an employee of the Federal Bureau of Prisons
8 (BOP) and thus lacked the authority to conduct the disciplinary
9 hearing and make findings resulting in punishment, including
10 disallowance of good time credit, Petitioner suffered a violation of
11 his right to due process of law; 2) because the hearing officer was
12 not an employee of the BOP but rather was an employee of a private
13 entity with a financial interest in the disallowance of good time
14 credits, Petitioner’s due process right to an independent and
15 impartial decision maker at the disciplinary hearing was violated.
16 (Id. at 3-7.)
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Respondent seeks dismissal of the petition for mootness and for

18 Petitioner’s failure to exhaust administrative remedies.
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II.

Mootness

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Federal courts lack jurisdiction to decide cases that are moot

21 because the courts= constitutional authority extends to only actual
22 cases or controversies.

Iron Arrow Honor Society v. Heckler, 464

23 U.S. 67, 70-71 (1983).

Article III requires a case or controversy

24 in which a litigant has a personal stake in the outcome of the suit
25 throughout all stages of federal judicial proceedings and has
26 suffered some actual injury that can be redressed by a favorable
27 judicial decision.

Id.

A petition for writ of habeas corpus

28 becomes moot when it no longer presents a case or controversy under
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1 Article III, ' 2 of the Constitution.
2 477, 479 (9th Cir. 2003).

Wilson v. Terhune, 319 F.3d

The petition is moot where a petitioner=s

3 claim for relief cannot be redressed by a favorable decision of the
4 court issuing a writ of habeas corpus.

Burnett v. Lampert, 432 F.3d

5 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1,
6 7 (1998)).

Mootness is jurisdictional; a moot petition must be

7 dismissed because nothing remains before the Court to be remedied.
8 See, Cole v. Oroville Union High School District, 228 F.3d 1092,
9 1098-99 (9th Cir. 2000); Spencer v. Kemna, 523 U.S. 1, 18.
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On July 3, 2013, Petitioner filed a notice of change of address

11 from TCI to what appears to be a private residence.

(Doc. 19.)

12 Respondent confirms that Petitioner was released from TCI.

(Doc.

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When, because of intervening events, a court cannot give any

15 effectual relief in favor of the petitioner, the proceeding should
16 be dismissed as moot.

Calderon v. Moore, 518 U.S. 149, 150 (1996).

17 It appears that the only relief Petitioner sought was early release
18 from custody, and he has been released from custody.

Petitioner has

19 not asserted any factual or legal basis that would preclude a
20 finding of mootness.

Thus, the Court concludes that the matter is

21 moot because the Court may no longer grant any effective relief.
22 See, Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas claim
23 was moot where a former inmate sought placement in a community
24 treatment center but was subsequently released on parole and no
25 longer sought such a transfer); Kittel v. Thomas, 620 F.3d 949 (9th
26 Cir. 2010) (dismissing as moot a petition seeking early release
27 where the petitioner was released and where there was no live,
28 justiciable question on which the parties disagreed).
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Accordingly, it will be recommended that the petition be

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III.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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1) The petition for writ of habeas corpus be DISMISSED as moot;

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2) The Clerk be DIRECTED to close the action.

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These findings and recommendations are submitted to the United

9 States District Court Judge assigned to the case, pursuant to the
10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
11 Rules of Practice for the United States District Court, Eastern
12 District of California.

Within thirty (30) days after being served

13 with a copy, any party may file written objections with the Court
14 and serve a copy on all parties.

Such a document should be

15 captioned AObjections to Magistrate Judge=s Findings and
16 Recommendations.@

Replies to the objections shall be served and

17 filed within fourteen (14) days (plus three (3) days if served by
18 mail) after service of the objections.

The Court will then review

19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
20 The parties are advised that failure to file objections within the
21 specified time may waive the right to appeal the District Court=s
22 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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25 IT IS SO ORDERED.
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Dated:

October 28, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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