Cappel v. Rackley

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 09/19/17 ORDERING this action is DISMISSED pursuant to Rule 4, Rules governing section 2254 cases. Petitioner's motion to proceed in forma pauperis 7 is DENIED as moot. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TAMMY ANN CAPPEL,

12

Petitioner,

13
14

No. 2:17-cv-01245 AC P

v.

ORDER

RON RACKLEY, Warden,

15

Respondent.

16
17

I.

Introduction

18

Petitioner Tammy Ann Cappel is a state prisoner incarcerated at Folsom State Prison,

19

under the authority of the California Department of Corrections and Rehabilitation (CDCR).

20

Petitioner proceeds pro se with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. §

21

2241, construed as a petition filed pursuant to 28 U.S.C. § 2254,1 and a request to proceed in

22

forma pauperis. This matter was transferred to this court from the Fresno division of the United

23

States District Court for the Eastern District of California. See ECF No. 3.

Petitioner has consented to the jurisdiction of the undersigned United States Magistrate

24
25

Judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). See ECF No. 6.

26

1

27
28

Petitioner submitted her petition on the form used by federal prisoners seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. The court construes the petition as one filed pursuant to 28
U.S.C. § 2254, the proper statute for seeking a writ of habeas corpus by a prisoner “in custody
pursuant to the judgment of a State court.”
1

1

For the reasons that follow, this court dismisses petitioner’s habeas petition and denies her request

2

to proceed in forma pauperis as moot.

3

II.

4

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

Legal Standards for Screening

5

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

6

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

7

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

8

Because the instant petition challenges the alleged failure of CDCR officials to enforce a

9

disciplinary decision directing the restoration of petitioner’s service credits, the following legal

10

standards also apply. In Nettles v. Grounds, 830 F.3d 922 (July 26, 2016) (en banc), the Ninth

11

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

12

corpus,’ it may not be brought in habeas corpus but must be brought, ‘if at all,’ under [42 U.S.C. ]

13

§ 1983[.]” Nettles, 830 F.3d at 931, 934 (citations omitted). The Court of Appeals held that a

14

claim does not fall within “the core of habeas corpus” if success on the merits of the challenged

15

disciplinary matter “would not necessarily lead to [the petitioner’s] immediate or speedier

16

release.” Id. at 934-35.

17

III.

18

Petitioner challenges the denial of CDCR officials to enforce a September 20, 2011

Analysis

19

disciplinary decision reached at Valley State Prison for Women, which directed the restoration of

20

petitioner’s service credits provided she remained disciplinary free. Prior to commencing this action,

21

petitioner pursued her claim in the state courts by petitions for writ of habeas corpus filed in (and

22

denied by) the Sacramento County Superior Court and the California Court of Appeal, Third

23

Appellate District. After this action was commenced, the California Supreme Court also denied

24

petitioner’s state habeas petition.2 See ECF No. 8.

25
26
27
28

The undersigned has reviewed the instant federal petition and exhibits and concludes that
2

Had petitioner made a request, this court was authorized to consider a motion to stay the instant
federal habeas petition pending exhaustion of petitioner’s state court remedies. See Mena v.
Long, 813 F.3d 907, 910 (9th Cir. 2016). For this reason, and for present purposes, the
undersigned declines to dismiss the petition on failure-to-exhaust grounds.
2

1

there are no grounds upon which petitioner can prevail on her claim in federal court. The October

2

18, 2016 decision of the Sacramento County Superior Court, denying petitioner’s state petition

3

for writ of habeas corpus, is informative:

4

In September 2011, Petitioner was “granted” her administrative
appeal number C-11-00988, in which she requested a “clean” copy
of a disciplinary hearing under Rules Violation Report 2-11-13038
[sic] and a dismissal of the same Rules Violation Report. On
December 28, 2015, Petitioner filed another administrative appeal,
alleging that the Rules Violation Report number 2-11-13038
remained in her file and her lost credit was not restored, despite the
fact that her administrative appeal was granted. On May 18, 2016,
a Third Level review of Petitioner’s appeal found that Petitioner
was not eligible for restoration of credit because Petitioner did not
remain disciplinary free for the requisite amount of time.
Petitioner’s appeal was denied.

5
6
7
8
9
10

Petitioner’s attached documentation suggested that the Rules
Violation Report number 2-11-13038 was dismissed, through the
“granting” of Petitioner’s administrative appeal number C-1100988. The Third Level Review decision did not substantively
suggest otherwise.

11
12
13

In a request for an informal response, this Court requested that
Respondent(s) clarify the extent that appeal number C-11-00988
was granted and any communication to Petitioner on that subject
which would indicate any intent to limit the relief requested in the
appeal. The Court also requested any authority for refusing to
restore credit lost during a disciplinary outcome that is subsequently
dismissed.

14
15
16
17

The Office of the Attorney General [AG] has responded and has
supplied supporting documentation that clarifies the issue. The
documentation demonstrates that Petitioner was found guilty of a
rules violation in 2011, and administratively appealed that decision.
When Petitioner submitted her appeal to the third level of review,
her appeal was rejected because her submitted rules violation report
was illegible. Petitioner filed a new appeal, number C-11-00988,
requesting a legible copy of her rules violation report. This request
was granted, and her original appeal of her disciplinary finding was
continued at the third level. Complicating matters for purposes of
the instant petition, however, Petitioner also requested in appeal
number C-11-00988 that her rules violation be dismissed [“due to
denial of 3rd Level Hearing Review”].3

18
19
20
21
22
23
24

After examining all the documents relating to the rules violation
and administrative appeals, this Court finds that the appeal for the
rules violation was clearly denied at the third level of review and
Petitioner did not challenge this denial in a timely fashion. Instead,
Petitioner pursued her second line of administrative appeals, which

25
26
27
28

3

See ECF No. 1 at 44.
3

1
2
3
4
5
6

was granted as to her request for a legible copy of her rules
violation report but provided no relief from the rules violation. To
the extent that the second line of administrative appeals challenged
the rules violation, this Court finds no reason to interfere with the
prison disciplinary decision. A review of the hearing indicates that
Petitioner admitted to pushing another inmate. This constitutes
some evidence of the rules violation.
ECF No. 1 at 32-3 (In re Tammy Cappel, Superior Court Case No. 16HC00261, at 2-3).
The Superior Court expanded the record and ordered supplemental briefing from the AG,

7

and found no ground upon which to grant petitioner relief. This court’s review of additional

8

documents attached to the instant federal petition supports the correctness of the Superior Court’s

9

decision. For example, a Third Level administrative decision in Case No. 15-0-9933 (Local Log

10
11
12
13
14
15
16

No. FSP-16-00001) provides in pertinent part:
[E]ven though the appellant argues that the attached appeals
regarding log C#-11-00988 dated July 25, 2011 and September 14,
2011, ordering the removal of RVR-02-11-13-038 and restoration
of credits was granted at the FLR [First Level Review], the fact
remains the appellant was appropriately advised by the SLR
[Second Level Review] that as she received an additional RVR on
July 1, 2011, which was within 180 days of the RVR dated
February 14, 2011, therefore she is ineligible for credit restoration
relative to the appeal. It is further noted based upon a review of the
Electronic Records Management System (ERMS) the RVR in
question was not dismissed or removed and no credit restorations
was [sic] applied.

17
18
19

ECF No. 1 at 51-2.
Regardless of the correctness of the Superior Court’s decision, this court is without

20

authority to consider the matter. Petitioner does not allege that her undisclosed term of

21

incarceration would be necessarily shortened or terminated if her service credits were restored;

22

moreover, the petition and exhibits indicate there is no ground upon which this court could order

23

petitioner’s immediate or speedier release. Therefore, the undersigned finds that petitioner’s

24

claim is not cognizable on federal habeas. Nettles, 830 F.3d at 931, 934-35.

25

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

26

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

27

under § 1983 after notifying and obtaining informed consent from the prisoner.” Nettles, 830

28

F.3d at 936. “‘If the complaint is amenable to conversion on its face, meaning it names the
4

1

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

2

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

3

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

4

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

5

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

6

civil rights complaint. The petition is presented in “habeas corpus” terminology, and does not

7

identify a proper civil rights defendant. Additionally, petitioner should be accorded the

8

opportunity to consider the potential impact of obtaining in forma pauperis status on her claim in

9

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

10

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

11

more cases dismissed as frivolous, malicious or for failure to state a claim). For these reasons,

12

this court declines to convert the instant petition to a civil rights complaint.

13

Accordingly, because it plainly appears from the petition and exhibits that the petitioner is

14

not entitled to relief on the grounds asserted, this action must be dismissed pursuant to Rule 4,

15

Rules Governing Section 2254 Cases.

16

IV.

17

For the foregoing reasons, IT IS HEREBY ORDERED that:

18

1. This action is dismissed pursuant to Rule 4, Rules Governing Section 2254 Cases; and

19

2. Petitioner’s motion to proceed in forma pauperis, ECF No. 7, is denied as moot.

20

Conclusion

DATED: September 19, 2017

21
22
23
24
25
26
27
28
5