Stanley v. Davis et al

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/27/17 RECOMMENDING that petitioner's application for a writ of habeas corpus be summarily dismissed. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 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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JERRY STANLEY,

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No. 2:16-cv-3031 MCE KJN P

Petitioner,
v.

FINDINGS & RECOMMENDATIONS

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WARDEN RON DAVIS, et al.,

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Respondents.

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Petitioner is a state prisoner on death row, housed at San Quentin State Prison. Petitioner

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has not paid the court’s filing fee, or filed an application to proceed in forma pauperis. However,

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because it is clear from the face of the petition that petitioner does not challenge the fact or

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duration of his confinement, the undersigned recommends that the petition be summarily

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dismissed.

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Rule 4 of the Rules Governing Habeas Corpus Cases Under Section 2254 provides for

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summary dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and

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any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Id.

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First, petitioner filed his claims on a Northern District of California petition for a writ of

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habeas corpus form, noting his Butte County conviction and death penalty sentence. (ECF No. 1

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at 1.) But court records reflect that petitioner is already seeking habeas relief, through counsel,

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challenging his Butte County conviction in Stanley v. Calderon, No. 2:95-cv-1500 JAM CKD
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(E.D. Cal.). Thus, petitioner must raise any challenges to the fact or duration of the Butte County

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conviction in case no. 2:95-cv-1500 JAM CKD.

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Second, as grounds for relief, petitioner claims that on December 20, 2016, he was denied

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access to his attorneys and to the courts; and claims that all San Quentin staff denied petitioner

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law library and legal calls for reporting all of the incidents that occurred on December 20, 2016.

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A habeas corpus petition under 28 U.S.C. § 2254 is the proper vehicle for a state

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prisoner’s challenge to the validity or length of his sentence, but challenges to a prisoner’s

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conditions of confinement must be brought through a civil rights action. Wilkinson v. Dotson,

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544 U.S. 74, 81-82 (2005); Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (adopting “the

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Supreme Court’s strong suggestion that a § 1983 action is the exclusive vehicle for claims that are

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not within the core of habeas.”). A civil rights action is the “proper remedy” for a prisoner “who

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is making a constitutional challenge to the conditions of his prison life, but not to the fact or

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length of his custody.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973).

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Here, petitioner does not challenge his conviction, the execution of his sentence, or the

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fact of his custody or incarceration. Rather, petitioner challenges incidents that occurred at San

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Quentin on December 20, 2016. These claims do not implicate the fact or duration of petitioner’s

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sentence and such claims “must be brought, if at all, under 42 U.S.C. § 1983.” Nettles, 830 F.3d

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at 925 (citing Preiser, 411 U.S. at 487.) Because petitioner’s claims do not sound in habeas, his

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petition must be summarily dismissed.

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Third, this court will not recommend that petitioner’s filing be construed as a civil rights

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complaint for multiple reasons. Such claims were filed in the wrong court. Any challenge to

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conditions of confinement at San Quentin must be filed in the Northern District of California. In

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addition, in order to pursue a civil rights complaint, petitioner must pay the court’s filing fee.

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Even if petitioner is granted leave to proceed in forma pauperis, he will be required to pay the

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$350.00 filing fee in installments from his prison trust account. Thus, petitioner should decide

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whether he wishes to pursue a civil rights action under 42 U.S.C. § 1983 in the Northern District.

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Finally, petitioner must first exhaust his administrative appeals through the third level of review

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before he may file a civil rights complaint in federal court.
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The Prison Litigation Reform Act of 1995 (“PLRA”) amended 42 U.S.C. § 1997e to

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provide that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C.

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§ 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

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Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Porter v. Nussle, 534 U.S. 516,

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524 (2002). Exhaustion is a prerequisite for all prisoner suits regarding conditions of

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confinement, whether they involve general circumstances or particular episodes, and whether they

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allege excessive force or some other wrong. Porter, 534 U.S. at 532.
“Proper exhaustion [of administrative remedies] demands compliance with an agency’s

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deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 95-96 (2006). The

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California Department of Corrections and Rehabilitation (“CDCR”) provides inmates the right to

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appeal administratively “any policy, decision, action, condition, or omission by the department or

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its staff that the inmate or parolee can demonstrate as having a material adverse effect upon his or

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her health, safety, or welfare.” Cal. Code Regs. tit. 15, § 3084.1(a). Following amendments that

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took effect January 28, 2011, California prisoners are required to proceed through three levels of

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appeal to exhaust the administrative appeal process: (1) formal written appeal on a CDC 602

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inmate appeal form, (2) second level appeal to the institution head or designee, and (3) third level

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appeal to the Director of the CDCR. See 15 Cal. Code Regs. § 3084.1-3084.9. A final decision

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from the Director’s level of review satisfies the exhaustion requirement under 42 U.S.C.

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§ 1997e(a). See Lira v. Herrera, 427 F.3d 1164, 1166-67 (9th Cir. 2005); see also Cal. Code

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Regs. tit. 15, § 3084.7(d)(3) (as amended Dec. 13, 2010).1

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To initiate an appeal, the inmate must submit a CDCR Form 602 describing the issue to be
appealed and the relief requested to the appeals coordinator’s office at the institution. Id.
§ 3084.2(a)-(c). An inmate must submit the appeal within 30 calendar days of: (1) the
occurrence of the event or decision being appealed; or (2) first having knowledge of the action or
decision being appealed; or (3) receiving an unsatisfactory departmental response to an appeal.
Id. § 3084.8(b). Specific time limits apply to the processing of each administrative appeal. See
Cal. Code Regs. tit. 15, § 3084.8. Absent any specific exceptions, the first and second level
administrative responses are required to be completed “within 30 working days from [the] date of
receipt by the appeals coordinator,” and a third level response is due within 60 working days from
the date the appeal is received by the appeals chief. Id.
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Because the alleged events occurred on December 20, 2016, a little over a month ago, it

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appears unlikely that plaintiff pursued his administrative appeal through the third level of review

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prior to filing the instant action.

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For all of these reasons, the court declines to construe the petition as a civil rights
complaint.
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of

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habeas corpus be summarily dismissed.

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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 28 U.S.C. § 636(b)(l). Within fourteen 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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: January 27, 2017

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