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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAAHDI COLEMAN, 12 Petitioner, 13 14 No. 2:16-cv-0652 AC P v. ORDER and SUZANNE M. PEERY, et al., 15 FINDINGS AND RECOMMENDATIONS Respondents. 16 17 I. Introduction 18 Petitioner is a state prisoner incarcerated at California State Prison-Sacramento who 19 proceeds with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a request to 20 proceed in forma pauperis. This action is referred to the undersigned United States Magistrate 21 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 22 23 without prejudice. 24 II. 25 Examination of the in forma pauperis application demonstrates that petitioner is unable to In Forma Pauperis Application 26 afford the costs of this suit. See ECF No. 4. Accordingly, petitioner’s application to proceed in 27 forma pauperis will be granted. See 28 U.S.C. § 1915(a). 28 //// 1 1 III. 2 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct 3 a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to 4 Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and 5 any attached exhibits that the petitioner is not entitled to relief in the district court.” 6 7 8 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 9 procedural protections under the Due Process Clause, although they are not entitled to the full 10 panoply of rights afforded to criminal defendants. See Wolff v. McDonnell, 418 U.S. 539, 556 11 (1974); see also Superintendent v. Hill, 472 U.S. 445, 455-56 (1985); United States v. Segal, 549 12 F.2d 1293, 1296-99 (9th Cir. 1977) (observing that prison disciplinary proceedings command the least 13 amount of due process along the prosecution continuum). 14 A prisoner is entitled to advance written notice of the charges against him as well as a written 15 statement of the evidence relied on by prison officials and the reasons for the disciplinary action. See 16 Wolff, 418 U.S. at 563. A prisoner also has a right to a hearing at which he may “call witnesses and 17 present documentary evidence in his defense when permitting him to do so will not be unduly 18 hazardous to institutional safety or correctional goals.” Id. at 566; see also Ponte v. Real, 471 U.S. 19 491, 495 (1985). An investigative officer may be required to assist prisoners who are illiterate or 20 whose case is particularly complex. Wolff, 418 U.S. at 570. The disciplinary hearing must be 21 conducted by a person or body that is “sufficiently impartial to satisfy the Due Process Clause.” Id. at 22 571. Finally, the decision rendered on a disciplinary charge must be supported by “some evidence” in 23 the record. Hill, 472 U.S. at 455. 24 Recently, in Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc), the Ninth Circuit 25 Court of Appeals held that “if a state prisoner’s claim does not lie at ‘the core of habeas corpus,’ 26 it may not be brought in habeas corpus but must be brought, ‘if at all,’ under § 1983[.]” Nettles, 27 830 F.3d at 931, 934 (citations omitted). In Nettles, the court found that success on the merits of 28 the petitioner’s challenged disciplinary proceeding would not necessarily impact the fact or 2 1 duration of his confinement, and therefore his challenge did not fall within “the core of habeas 2 corpus.” The court reasoned that “[s]uccess on the merits of Nettles’s claim would not 3 necessarily lead to immediate or speedier release because the expungement of the challenged 4 disciplinary violation would not necessarily lead to a grant of parole.” Nettles, 830 F.3d at 934- 5 35. However, the court left open the possibility that petitioner’s claims could be brought in a civil 6 rights action under Section 1983. 7 IV. 8 In the instant petition (338 pages in length with exhibits), petitioner asserts that he is 9 “challenging prison conditions of confinement/prison disciplinary hearing.” ECF No. 1 at 1. The Instant Petition 10 Petitioner challenges his September 21, 2014 disciplinary hearing at High Desert State Prison and 11 the resulting finding that petitioner was guilty of “battery on an inmate with a weapon,” a 12 “Division A1 offense” (CDC 115 No. FC-14-04-007). See ECF No. 1 at 202-10. Petitioner was 13 assessed 360 days loss of credit (noting that “there is no credit restoration available for a Division 14 A1 offense”), 60 days loss of canteen privileges, 20 days loss of yard exercise privileges, and 15 referral to the Institutional Classification Committee for assessment of a term in the Segregated 16 Housing Unit (SHU). Id. at 207. 17 Petitioner challenges, on federal due process and state law grounds, the alleged failure of 18 prison officials to convene his disciplinary hearing within 30 days after the alleged offense; the 19 alleged denial of his right to staff assistance; and the alleged denial of his right to call witnesses 20 and present evidence on his own behalf. Petitioner also challenges the screening out of his 21 relevant administrative appeal, and asserts the denial of his First Amendment right to access the 22 courts. The petition names two respondents, High Desert State Prison Warden Perry, and 23 California Correctional Institution Warden Holland, neither of which is the proper respondent in 24 this action.1 25 26 27 28 Petitioner states that he exhausted his state court remedies on claims alleging a violation 1 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). 3 1 of due process and insufficiency of the evidence, and contends that the lower court decisions are 2 contrary to and an unreasonable application of clearly established law, including the failure of the 3 courts and prison to apply the prison “mailbox rule” (sic). 4 Petitioner seeks to have the “RVR dismissed in its entirety per DOM 54100.20.1 and that 5 petitioner be restored to the status he previously enjoyed.” ECF No. 1 at 24, 53. It appears that 6 petitioner is serving a life sentence. See ECF No. 1 at 177. 7 V. 8 This court may consider the merits of an application for writ of habeas corpus by a state 9 Analysis prisoner only on the ground that he is in custody in violation of federal law. See 28 U.S.C. § 10 2254(a). Therefore, to the extent that plaintiff challenges his disciplinary hearing and conviction 11 based on an alleged violation of the California Department of Corrections and Rehabilitation 12 Department Operation Manual (DOM), such challenge is noncognizable in federal habeas. 13 More significantly, petitioner does not allege that his term of incarceration will be 14 shortened or terminated if he is successful on his federal due process claims. Nor is there 15 anything in the petition and exhibits to suggest that petitioner, who is apparently serving a life 16 sentence, would serve a shorter sentence in the absence of the 360-day credit loss imposed as a 17 result of his disciplinary conviction. “If the invalidity of the disciplinary proceedings, and 18 therefore the restoration of good-time credits, would not necessarily affect the length of time to be 19 served, then the claim falls outside the core of habeas and may be brought in § 1983.” Nettles, 20 830 F.3d at 929 (fn. omitted) (citing Muhammad v. Close, 540 U.S. 749, 754-55 (2004)).2 21 22 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. 23 The next question is therefore whether the instant petition should be construed as a civil 24 rights complaint. “A district court may construe a petition for habeas corpus to plead a cause of 25 action under § 1983 after notifying and obtaining informed consent from the prisoner.” Nettles, 26 2 27 28 “[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)). 4 1 830 F.3d at 936. “‘If the complaint is amenable to conversion on its face, meaning it names the 2 correct defendants and seeks the correct relief, the court may recharacterize the petition so long as 3 it warns the pro se litigant of the consequences of the conversion and provides an opportunity for 4 the litigant to withdraw or amend his or her complaint.’” Id. (quoting Glaus v. Anderson, 408 5 F.3d 382, 388 (7th Cir. 2005)). 6 The undersigned finds that it would be inappropriate to construe the instant petition as a 7 civil rights complaint. The petition is excessively long, rendering conversion unwieldy, and the 8 claims are presented in “habeas corpus” terminology. The petition does not name or otherwise 9 identify a proper civil rights defendant. Petitioner concedes that he did not exhaust his 10 administrative remedies, which is a requirement for civil rights actions under the Prison Litigation 11 Reform Act, so plaintiff must be prepared to demonstrate that he exhausted the remedies that 12 were available to him. See 42 U.S.C. § 1997e(a). Additionally, petitioner should be accorded the 13 opportunity to consider the potential impact of obtaining in forma pauperis status on his claims in 14 a civil rights case, as it may impact his eligibility for in forma pauperis status in future cases. 15 See 28 U.S.C. § 1915(g) (prohibiting in forma pauperis status to prisoners who have had three or 16 more cases dismissed as frivolous, malicious or for failure to state a claim). Plaintiff has pursued 17 at least 11 civil rights cases in this court, three of which remain open; he has also pursued 6 18 habeas corpus actions, two of which remain open.3 19 For these several reasons, the undersigned finds that the instant petition fails to state a 20 cognizable claim for habeas relief and should be dismissed on that basis. See Rule 4, Rules 21 Governing Section 2254 Cases; Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc). This 22 court further finds that it is inappropriate to construe the instant petition as a civil rights complaint. 23 Dismissal of this action without prejudice will allow petitioner, at his discretion, to decide whether to 24 pursue his claims in a new civil rights action. 25 //// 26 3 27 28 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). 5 1 VI. 2 For the foregoing reasons, IT IS HEREBY ORDERED that: 3 1. Petitioner’s request to proceed in forma pauperis in the instant case, ECF No. 4, is 4 Conclusion granted; the $5.00 filing fee is waived. 5 2. The Clerk of Court is directed to randomly assign a district judge to this action. 6 Further, IT IS HEREBY RECOMMENDED that: 7 1. The instant action filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice 8 for failure to state a cognizable claim for habeas relief. See Rule 4, Rules Governing Section 9 2254 Cases; Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc). 10 2. The Clerk of Court be directed to close this case. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty one days 13 after being served with these findings and recommendations, petitioner may file written 14 objections with the court. Such a document should be captioned “Objections to Magistrate 15 Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 17 Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 DATED: October 18, 2016 19 20 21 22 23 24 25 26 27 28 6

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