Alcala v. Martel

Filing 25

ORDER signed by Magistrate Judge Allison Claire on 6/3/13 ORDERING that To the extent it has not already been denied by the district courts August 11, 2013 order, respondents 16 motion to dismiss is DENIED without prejudice; Respondents are granted thirty days from the date of this order in which to file either a further motion to dismiss or an answer to the petition. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH G. ALCALA,
Petitioner,

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No. 2:10-cv-3448 KJM JFM (HC)

vs.
MIKE MARTEL, Warden, et al.,
Respondents.

ORDER
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Petitioner is a state prisoner proceeding pro se with an application for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2008 prison disciplinary

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conviction that he suffered for refusing to accept a cellmate. On August 3, 2012, respondents

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filed a motion to dismiss the petition on the grounds that habeas relief was unavailable to

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petitioner because he did not lose good time credits as a result of the disciplinary conviction and

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because no clearly established federal law extends the procedural protections of Wolff v.

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McDonnell, 418 U.S. 539 (1974) to disciplinary convictions that do not result in the loss of good

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time credit. On November 2, 2012, findings and recommendations issued recommending that

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the motion be denied. By order filed April 11, 2013, the district court adopted the finding that

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habeas relief is available to petitioner notwithstanding the fact that he did not suffer a loss of

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good time credits, but remanded the matter for findings and recommendation on respondents’

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argument concerning whether the procedural protections of Wolff v. McDonnell apply to the
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disciplinary proceedings at issue. Order filed April 11, 2013 (ECF No. 24) at 2.

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After review of the record, this court finds that the disciplinary conviction at issue

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did result in the assessment of “90 days loss of behavioral credit consistent with a Division ‘D’

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offense.” Ex. E to Petition (ECF No. 1) at 41. Under California law, behavior credits operate to

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reduce prison sentences. See California Penal Code § 2931. The due process protections

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outlined in Wolff v. McDonnell, supra, apply to prison disciplinary proceedings at which credits

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for good behavior may be lost. See Wolff, 418 U.S. at 546 n.6, 558. Because petitioner lost

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behavior credits as part of the disciplinary conviction at issue, it would appear that respondents’

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second contention is inapposite and does not support dismissal of the instant action. However, in

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his opposition to the motion to dismiss petitioner asserts generally that “‘good-time-credits’ are

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not applicable” to him. Petitioner’s Opposition to Respondents’ Motion to Dismiss, filed August

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17, 2012 (ECF No. 17) at 7. He provides no explanation for this assertion.
Respondents have the burden of demonstrating that they are entitled to dismissal

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of this action. Good cause appearing, respondents’ motion to dismiss will be denied without

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prejudice to its renewal, as appropriate, on a showing that petitioner’s term of incarceration is

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unaffected by the 90 days of credit lost as a result of the challenged disciplinary conviction and

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that the procedural protections of Wolff v. McDonnell, supra, do not apply to the disciplinary

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conviction notwithstanding the assessment of 90 days credit loss. In the alternative, respondents

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may answer the petition.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. To the extent it has not already been denied by the district court’s August 11,

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2013 order, respondents’ August 3, 2012 motion to dismiss is denied without prejudice to its

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renewal, as appropriate, on a showing that petitioner’s term of incarceration is unaffected by the

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90 days of credit lost as a result of the challenged disciplinary conviction and that the procedural

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protections of Wolff v. McDonnell, supra, do not apply to the disciplinary conviction

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notwithstanding the assessment of 90 days credit loss;

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2. Respondents are granted thirty days from the date of this order in which to file
either a further motion to dismiss or an answer to the petition;

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3. If respondents file an answer, petitioner’s traverse, if any, shall be filed and
served within thirty days after service of the answer; and

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4. If respondents file a further motion to dismiss, petitioner’s opposition or

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statement of non-opposition to the motion shall be filed and served within thirty days after

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service of the motion, and respondent’s reply, if any, shall be filed and served within fourteen

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days thereafter.

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DATED: June 3, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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alca3448.o

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