Coleman v. Peery, et al.

Filing 5

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/18/16 ORDERING that 4 Motion to Proceed IFP is GRANTED; the $5.00 filing fee is WAIVED. The Clerk of Court is directed to randomly assign a district judge t o this action. It is RECOMMENDED that the instant action filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice for failure to state a cognizable claim for habeas relief. See Rule 4, Rules Governing Section2254 Cases; Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc); and the Clerk of Court be directed to close this case. Randomly assigned and referred to Judge Morrison C. England, Jr.; Objections to F&R due within 21 days.. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAAHDI COLEMAN,

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Petitioner,

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No. 2:16-cv-0652 AC P

v.

ORDER and

SUZANNE M. PEERY, et al.,

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FINDINGS AND RECOMMENDATIONS

Respondents.

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I.

Introduction

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Petitioner is a state prisoner incarcerated at California State Prison-Sacramento who

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proceeds with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a request to

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proceed in forma pauperis. This action is referred to the undersigned United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c).
For the reasons that follow, this court recommends the summary dismissal of the petition

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without prejudice.

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II.

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Examination of the in forma pauperis application demonstrates that petitioner is unable to

In Forma Pauperis Application

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afford the costs of this suit. See ECF No. 4. Accordingly, petitioner’s application to proceed in

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forma pauperis will be granted. See 28 U.S.C. § 1915(a).

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III.

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Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct

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a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to

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Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and

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any attached exhibits that the petitioner is not entitled to relief in the district court.”

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Legal Standards on Screening

In light of petitioner’s challenges to a disciplinary hearing and findings, the following
legal standards are also applicable.
It is well established that prisoners subjected to disciplinary action are entitled to certain

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procedural protections under the Due Process Clause, although they are not entitled to the full

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panoply of rights afforded to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556

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(1974); see also Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); United States v. Segal, 549

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F.2d 1293, 1296-99 (9th Cir. 1977) (observing that prison disciplinary proceedings command the least

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amount of due process along the prosecution continuum).

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A prisoner is entitled to advance written notice of the charges against him as well as a written

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statement of the evidence relied on by prison officials and the reasons for the disciplinary action. See

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Wolff, 418 U.S. at 563. A prisoner also has a right to a hearing at which he may “call witnesses and

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present documentary evidence in his defense when permitting him to do so will not be unduly

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hazardous to institutional safety or correctional goals.” Id. at 566; see also Ponte v. Real, 471 U.S.

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491, 495 (1985). An investigative officer may be required to assist prisoners who are illiterate or

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whose case is particularly complex. Wolff, 418 U.S. at 570. The disciplinary hearing must be

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conducted by a person or body that is “sufficiently impartial to satisfy the Due Process Clause.” Id. at

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571. Finally, the decision rendered on a disciplinary charge must be supported by “some evidence” in

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the record. Hill, 472 U.S. at 455.

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Recently, in Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc), the Ninth Circuit

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Court of Appeals held that “if a state prisoner’s claim does not lie at ‘the core of habeas corpus,’

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it may not be brought in habeas corpus but must be brought, ‘if at all,’ under § 1983[.]” Nettles,

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830 F.3d at 931, 934 (citations omitted). In Nettles, the court found that success on the merits of

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the petitioner’s challenged disciplinary proceeding would not necessarily impact the fact or
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duration of his confinement, and therefore his challenge did not fall within “the core of habeas

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corpus.” The court reasoned that “[s]uccess on the merits of Nettles’s claim would not

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necessarily lead to immediate or speedier release because the expungement of the challenged

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disciplinary violation would not necessarily lead to a grant of parole.” Nettles, 830 F.3d at 934-

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35. However, the court left open the possibility that petitioner’s claims could be brought in a civil

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rights action under Section 1983.

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IV.

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In the instant petition (338 pages in length with exhibits), petitioner asserts that he is

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“challenging prison conditions of confinement/prison disciplinary hearing.” ECF No. 1 at 1.

The Instant Petition

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Petitioner challenges his September 21, 2014 disciplinary hearing at High Desert State Prison and

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the resulting finding that petitioner was guilty of “battery on an inmate with a weapon,” a

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“Division A1 offense” (CDC 115 No. FC-14-04-007). See ECF No. 1 at 202-10. Petitioner was

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assessed 360 days loss of credit (noting that “there is no credit restoration available for a Division

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A1 offense”), 60 days loss of canteen privileges, 20 days loss of yard exercise privileges, and

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referral to the Institutional Classification Committee for assessment of a term in the Segregated

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Housing Unit (SHU). Id. at 207.

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Petitioner challenges, on federal due process and state law grounds, the alleged failure of

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prison officials to convene his disciplinary hearing within 30 days after the alleged offense; the

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alleged denial of his right to staff assistance; and the alleged denial of his right to call witnesses

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and present evidence on his own behalf. Petitioner also challenges the screening out of his

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relevant administrative appeal, and asserts the denial of his First Amendment right to access the

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courts. The petition names two respondents, High Desert State Prison Warden Perry, and

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California Correctional Institution Warden Holland, neither of which is the proper respondent in

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this action.1

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Petitioner states that he exhausted his state court remedies on claims alleging a violation
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A federal petition for writ of habeas corpus must name as respondent the state officer who
currently has custody of petitioner. See 28 U.S.C. § 2254; Rule 2(a) of the Rules Governing
Section 2254 Cases in the United States District Courts; Smith v. Idaho, 392 F.3d 350, 354-55
(9th Cir. 2004); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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of due process and insufficiency of the evidence, and contends that the lower court decisions are

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contrary to and an unreasonable application of clearly established law, including the failure of the

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courts and prison to apply the prison “mailbox rule” (sic).

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Petitioner seeks to have the “RVR dismissed in its entirety per DOM 54100.20.1 and that

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petitioner be restored to the status he previously enjoyed.” ECF No. 1 at 24, 53. It appears that

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petitioner is serving a life sentence. See ECF No. 1 at 177.

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V.

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This court may consider the merits of an application for writ of habeas corpus by a state

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Analysis

prisoner only on the ground that he is in custody in violation of federal law. See 28 U.S.C. §

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2254(a). Therefore, to the extent that plaintiff challenges his disciplinary hearing and conviction

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based on an alleged violation of the California Department of Corrections and Rehabilitation

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Department Operation Manual (DOM), such challenge is noncognizable in federal habeas.

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More significantly, petitioner does not allege that his term of incarceration will be

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shortened or terminated if he is successful on his federal due process claims. Nor is there

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anything in the petition and exhibits to suggest that petitioner, who is apparently serving a life

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sentence, would serve a shorter sentence in the absence of the 360-day credit loss imposed as a

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result of his disciplinary conviction. “If the invalidity of the disciplinary proceedings, and

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therefore the restoration of good-time credits, would not necessarily affect the length of time to be

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served, then the claim falls outside the core of habeas and may be brought in § 1983.” Nettles,

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830 F.3d at 929 (fn. omitted) (citing Muhammad v. Close, 540 U.S. 749, 754-55 (2004)).2

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These authorities support the finding that this action may not proceed in habeas corpus but
may, potentially, proceed only under 42 U.S.C. § 1983.

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The next question is therefore whether the instant petition should be construed as a civil

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rights complaint. “A district court may construe a petition for habeas corpus to plead a cause of

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action under § 1983 after notifying and obtaining informed consent from the prisoner.” Nettles,

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“[W]here. . . a successful § 1983 action would not necessarily result in an earlier release from
incarceration. . . the favorable termination rule of Heck and Edwards does not apply.” Ramirez v.
Galaza, 334 F.3d 850, 858 (9th Cir. 2003) (citing Heck v. Humphrey, 512 U.S. 477, 483, 486-87
(1994), and Edwards v. Balisok, 520 U.S. 641, 644 (1997)).
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830 F.3d at 936. “‘If the complaint is amenable to conversion on its face, meaning it names the

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correct defendants and seeks the correct relief, the court may recharacterize the petition so long as

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it warns the pro se litigant of the consequences of the conversion and provides an opportunity for

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the litigant to withdraw or amend his or her complaint.’” Id. (quoting Glaus v. Anderson, 408

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F.3d 382, 388 (7th Cir. 2005)).

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The undersigned finds that it would be inappropriate to construe the instant petition as a

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civil rights complaint. The petition is excessively long, rendering conversion unwieldy, and the

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claims are presented in “habeas corpus” terminology. The petition does not name or otherwise

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identify a proper civil rights defendant. Petitioner concedes that he did not exhaust his

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administrative remedies, which is a requirement for civil rights actions under the Prison Litigation

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Reform Act, so plaintiff must be prepared to demonstrate that he exhausted the remedies that

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were available to him. See 42 U.S.C. § 1997e(a). Additionally, petitioner should be accorded the

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opportunity to consider the potential impact of obtaining in forma pauperis status on his claims in

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a civil rights case, as it may impact his eligibility for in forma pauperis status in future cases.

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See 28 U.S.C. § 1915(g) (prohibiting in forma pauperis status to prisoners who have had three or

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more cases dismissed as frivolous, malicious or for failure to state a claim). Plaintiff has pursued

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at least 11 civil rights cases in this court, three of which remain open; he has also pursued 6

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habeas corpus actions, two of which remain open.3

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For these several reasons, the undersigned finds that the instant petition fails to state a

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cognizable claim for habeas relief and should be dismissed on that basis. See Rule 4, Rules

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Governing Section 2254 Cases; Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc). This

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court further finds that it is inappropriate to construe the instant petition as a civil rights complaint.

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Dismissal of this action without prejudice will allow petitioner, at his discretion, to decide whether to

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pursue his claims in a new civil rights action.

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A court may take judicial notice of its own records and the records of other courts. See United
States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118,
119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are
capable of accurate determination by sources whose accuracy cannot reasonably be questioned).
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VI.

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Petitioner’s request to proceed in forma pauperis in the instant case, ECF No. 4, is

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Conclusion

granted; the $5.00 filing fee is waived.

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2. The Clerk of Court is directed to randomly assign a district judge to this action.

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Further, IT IS HEREBY RECOMMENDED that:

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1. The instant action filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice

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for failure to state a cognizable claim for habeas relief. See Rule 4, Rules Governing Section

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2254 Cases; Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc).

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2. The Clerk of Court be directed to close this case.

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

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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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

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DATED: October 18, 2016

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