Patterson v. Horel

Filing 3

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 10/09/09. (Attachments: # 1 by Judge Charles R. Breyer)(be, COURT STAFF) (Filed on 10/15/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. Breon Patterson, a state prisoner currently incarcerated at Pelican Bay State Prison (PBSP), has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his placement and retention in administrative segregation in PBSP's Secure Housing Unit (SHU) on the basis of association with the Black Guerilla Family (BGF) prison gang. Patterson claims that his validation as a BGF associate is based on erroneous and unreliable evidence. Patterson also seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915. Based solely on Patterson's affidavit of poverty, his request to proceed in forma pauperis (doc # 2) is granted. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BREON PATTERSON, Petitioner, vs. ROBERT A. HOREL, Warden, Respondent(s).

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No. C 09-4659 CRB (PR) ORDER OF DISMISSAL (Doc # 2)

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G:\PRO-SE\CRB\HC.09\Patterson, B1.dismissal.wpd

II. The Ninth Circuit has made clear that habeas jurisdiction is absent, and a 42 U.S.C. § 1983 action proper, where, as here, a successful challenge will not necessarily shorten the prisoner's sentence. See Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). The effect of Patterson's validation as an BGF associate, and placement and retention in the SHU, on his possible release on parole is too attenuated to compel a different result. Cf. Burnsworth v. Gunderson, 179 F.3d 771, 774 n.3 (9th Cir. 1999) (possibility that prisoner having conviction/ disciplinary finding on record may result in denial of parole eligibility at some later date too attenuated to amount to denial of a protected liberty interest). III. For the foregoing reasons, the petition for a writ of habeas corpus is DISMISSED without prejudice to Patterson filing a civil rights complaint under 42 U.S.C. § 1983. The clerk is instructed to terminate all pending motions as moot, enter judgment in accordance with this order and close the file. The clerk also is instructed to send Patterson a blank prisoner's civil rights complaint form. SO ORDERED. DATED: Oct. 9, 2009 CHARLES R. BREYER United States District Judge

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