Stipp v. Brown, et al

Filing 12

FINDINGS and RECOMMENDATIONS Recommending That This Case be Dismissed for Failure to State a Claim, Without Prejudice to Filing a Petition for Writ of Habeas Corpus signed by Magistrate Judge Gary S. Austin on 6/26/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYMOND STIPP,

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Plaintiff,

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vs.
EDMUND G. BROWN, JR., et al.,

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Defendants.

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1:17-cv-01074-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED FOR FAILURE TO STATE A
CLAIM, WITHOUT PREJUDICE TO
FILING A PETITION FOR WRIT OF
HABEAS CORPUS
(ECF No. 1.)
OBJECTIONS, IF ANY, DUE WITHIN 14
DAYS

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I.

BACKGROUND

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Raymond Stipp (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. On July 11, 2017, Plaintiff filed the

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Complaint commencing this action at the United States District Court for the Central District of

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California. (ECF No. 1.) On August 9, 2017, the case was transferred to this court. (ECF No.

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7.) Plaintiff‟s Complaint is now before the court for screening. 28 U.S.C. § 1915A.

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II.

SCREENING REQUIREMENT

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
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The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

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legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or

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that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915A(b)(1),(2). “Notwithstanding any filing fee, or any portion thereof, that may have been

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paid, the court shall dismiss the case at any time if the court determines that the action or

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appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint is required to contain “a short and plain statement of the claim showing

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that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff‟s allegations are

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taken as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart

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Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted).

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To state a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to

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„state a claim to relief that is plausible on its face.‟” Iqbal, 556 U.S. at 678-79; Moss v. U.S.

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Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as

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true, legal conclusions are not. Id. The mere possibility of misconduct falls short of meeting

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this plausibility standard. Id.

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III.

PLAINTIFF’S ALLEGATIONS

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Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California. The

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events at issue in the Complaint allegedly occurred at Kern Valley State Prison (KVSP) in

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Delano, California, when Plaintiff was incarcerated there in the custody of the California

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Department of Corrections and Rehabilitation (CDCR). Plaintiff names as defendants Edmund

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G. Brown, Jr. (Governor of California), R. Tolson (Warden, KVSP), D. Stibbins (Associate

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Warden, KVSP), and M. Voong (Chief of Appeals, CDCR) (collectively, “Defendants”).

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Plaintiff‟s allegations follow. On August 18, 2016, at KVSP, correctional officers

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conducted a search in the cell occupied by Plaintiff and his cell mate, inmate Hernandez.

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Officer J. Rodriguez [not a defendant] found two mobile phones, which are contraband.
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Plaintiff had no knowledge that the phones were in the cell.

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Plaintiff was issued a Rules Violation Report (RVR) for possession of the phones. On

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September 28, 2016, a disciplinary hearing was held. Plaintiff asked for inmate Hernandez to

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be his witness in the hearing. Plaintiff was denied his witness because he [Plaintiff] was in

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protective custody at the time, and the hearing proceeded. The Senior Hearing Officer cited no

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California Penal Code but used “state law” and the title heading “Due Process” to deem

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Plaintiff guilty. Plaintiff contends that the Hearing Officer‟s failure to cite law in the action

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against him violates the Fourteenth Amendment. Plaintiff was found guilty and forfeited a

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credit loss of 90 days.

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Plaintiff seeks the following relief:

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Reversal of the guilty finding;

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Restoration of all 90 days of forfeited credit loss;

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Expungement of the disciplinary conviction; and

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Award of compensatory damages for lost property in the amount of $157.00.

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IV.

PLAINTIFF=S CLAIMS -- HABEAS CORPUS

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When a prisoner challenges the legality or duration of his custody, or raises a

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constitutional challenge which could entitle him to an earlier release, his sole federal remedy is

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a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d

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874 (9th Cir. 1990), cert. denied 11 S.Ct. 1090 (1991). Moreover, when seeking damages for

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an allegedly unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that

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the conviction or sentence has been reversed on direct appeal, expunged by executive order,

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declared invalid by a state tribunal authorized to make such determination, or called into

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question by a federal court‟s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v.

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Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for damages bearing that relationship to a

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conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at

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488. This “favorable termination” requirement has been extended to actions under § 1983 that,

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if

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successful, would imply the invalidity of prison administrative decisions which result in a

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forfeiture of good-time credits. Edwards v. Balisok, 520 U.S. 641, 643–647 (1997).

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Plaintiff‟s Complaint does not contain any allegations showing that the finding of guilt

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which resulted in his forfeiture of ninety days of credits has been reversed, expunged, declared

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invalid, or called into question by a writ of habeas corpus. If a § 1983 complaint states claims

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which sound in habeas, the court should not convert the complaint into a habeas petition. See

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Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). Rather, such claims must be

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dismissed without prejudice and the complaint should proceed on any remaining cognizable §

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1983 claims. See Heck, 512 U.S. at 487; Trimble, 49 F.3d at 585. Here, Plaintiff‟s claims,

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either directly or indirectly, challenge the duration of his confinement, a challenge which may

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be brought only in a petition for a writ of habeas corpus. Thus, Plaintiff is barred by Heck and

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Edwards from pursuing any claims under § 1983 concerning the process he was provided

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which resulted in the forfeiture of credits.

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V.

CONCLUSION AND RECOMMENDATIONS

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The court has found that Plaintiff‟s Complaint fails to state a § 1983 claim upon which

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relief can be granted, and that Plaintiff is barred by Heck and Edwards from pursuing any

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claims under § 1983 concerning the process he was provided which resulted in the forfeiture of

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credits. Therefore, Plaintiff‟s Complaint should be dismissed, without prejudice to filing a

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petition for writ of habeas corpus.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1.

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Plaintiff‟s Complaint be DISMISSED for failure to state a § 1983 claim, without
prejudice to filing a petition for writ of habeas corpus; and

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2.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days after the date of service of these findings and recommendations, Plaintiff may file

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written objections with the court.

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Magistrate Judge‟s Findings and Recommendations.” Plaintiff is advised that failure to file

The Clerk be directed to close this case.

Such a document should be captioned “Objections to

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

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(9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 26, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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