Jones v. Warden of USP Atwater

Filing 6

ORDER TO SHOW CAUSE WHY THE PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A COGNIZABLE CLAIM signed by Magistrate Judge Michael J. Seng on 3/4/2016. Show Cause Response due by 4/11/2016.(Lundstrom, T)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

Case No. 1:16-cv-00300 MJS (HC)
PATRICK JONES,

12
13

v.

ORDER TO SHOW CAUSE WHY THE
Petitioner, PETITION SHOULD NOT BE DISMISSED
FOR FAILURE TO STATE A COGNIZABLE
CLAIM
[Doc. 1]

14
15
16

WARDEN OF USP ATWATER,
Respondent.

17
18

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas

19

corpus under the authority of 28 U.S.C. § 2241. Petitioner filed the instant petition on

20

March 4, 2016. (Pet., ECF No. 1.)

21

Petitioner was sentenced to life imprisonment by the United States District Court

22

for the Western District of Texas on October 2, 2003. (Id. at 2.) Petitioner alleges that he

23

was placed in the Special Housing Unit, and on April 1, 2008, was given an incident

24

report for violating prison regulations by threatening another with bodily harm,

25

encouraging a group demonstration, assault, refusing to accept a program assignment,

26

and refusing to obey a staff order. (Id. at 2-3.) Petitioner asserts that his due process

27

rights were violated with regard to the disciplinary report as he was not provided the

28

opportunity to be present at the disciplinary hearing. (Id.) However, Petitioner does not
1

1

provide any information regarding his punishment for the violations and whether it

2

affected the fact or duration of his confinement.

3

I.

DISCUSSION

4

A.

5

Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:
If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.

6
7

Procedural Grounds for Summary Dismissal

The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a
8
petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the
9

respondent’s motion to dismiss, or after an answer to the petition has been filed. A

10
petition for habeas corpus should not be dismissed without leave to amend unless it
11
appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis
12
v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
13
B.

Failure to State Cognizable Claim

14
A federal court may only grant a petition for writ of habeas corpus if the federal
15
petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or
16
treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). A habeas corpus petition is
17
18

the correct method for a prisoner to challenge “the very fact or duration of his
confinement,” and where “the relief he seeks is a determination that he is entitled to

19
immediate release or a speedier release from that imprisonment.” Preiser v. Rodriguez,
20
411 U.S. 475, 489 (1973). In contrast, a civil rights action pursuant to 42 U.S.C. § 1983
21
is the proper method for a prisoner to challenge the conditions of that confinement.
22
McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499. In other
23
words, if a successful conditions of confinement challenge would not necessarily shorten
24

the prisoner’s sentence, then § 1983 is the appropriate vehicle. See Wilkinson v. Dotson,

25
544 U.S. 74 (2005).
26
In this case, Petitioner argues that his due process rights were violated with
27
regard to the disciplinary hearing. However, he has not provided any factual support to
28
2

1

establish that the violation affected the fact or duration of Petitioner’s confinement. For

2

example, if the violation resulted in the loss of good time credit, and therefore increased

3

the duration of Petitioner’s confinement, it is possible that Petitioner could state a

4

cognizable claim. Without alleging sufficient facts to implicate the duration of his

5

confinement, Petitioner has not presented claims entitled to relief by way of a federal

6

petition for writ of habeas corpus.

7

A petition for habeas corpus should not be dismissed without leave to amend

8

unless it appears that no tenable claim for relief can be pleaded were such leave

9

granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). As it is possible that a federal

10

claim could be stated, Petitioner is provided the opportunity to file an amended petition

11

to attempt to state a cognizable claim.

12

II.

ORDER

13

Petitioner is ORDERED TO SHOW CAUSE why the petition should not be

14

dismissed for Petitioner's failure to state cognizable federal claims Petitioner is

15

ORDERED to file an amended petition for writ of habeas corpus within thirty (30) days of

16

the date of service of this order.

17
18

Petitioner is forewarned that failure to follow this order will result in dismissal of
the petition pursuant to Local Rule 110.

19
20
21
22

IT IS SO ORDERED.
Dated:

March 4, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
3