Burton v. Lewis

Filing 5

ORDER of DISMISSAL. Signed by Judge Charles R. Breyer on 7/17/2013. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 7/18/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JERRY A. BURTON, E-85733,
Petitioner,

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vs.
G. D. LEWIS, Warden,
Respondent(s).

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No. C 13-2803 CRB (PR)
ORDER OF DISMISSAL
(Docket #3)

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I.

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Jerry A. Burton, a state prisoner currently incarcerated at Pelican Bay

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State Prison (PBSP), has filed a pro se petition for a writ of habeas corpus under

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28 U.S.C. § 2254 challenging his placement and retention in administrative

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segregation in PBSP’s Secure Housing Unit (SHU) on the basis of association

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with the Black Guerilla Family (BGF) prison gang. Burton claims that his

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validation as a BGF member is based on erroneous and unreliable evidence.

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Burton also seeks leave to proceed in forma pauperis under 28 U.S.C. §

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1915. Based solely on Burton’s affidavit of poverty, his request to proceed in

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forma pauperis (docket #3) is granted.

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II.
The Ninth Circuit has made clear that habeas jurisdiction is absent, and a

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42 U.S.C. § 1983 action proper, where, as here, a successful challenge will not

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necessarily shorten the prisoner’s sentence. See Ramirez v. Galaza, 334 F.3d

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850, 859 (9th Cir. 2003). The effect of Burton’s validation as an BGF member,

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and placement and retention in the SHU, on his possible release on parole is too

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attenuated to compel a different result. Cf. Burnsworth v. Gunderson, 179 F.3d

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771, 774 n.3 (9th Cir. 1999) (possibility that prisoner having conviction/

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disciplinary finding on record may result in denial of parole eligibility at some

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later date too attenuated to amount to denial of a protected liberty interest).

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III.

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For the foregoing reasons, the petition for a writ of habeas corpus is

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DISMISSED without prejudice to Burton filing a civil rights complaint under 42

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U.S.C. § 1983.1

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The clerk is instructed to enter judgment in accordance with this order and

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close the file.

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SO ORDERED.

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DATED: July 17, 2013
CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.13\Burton, J.13-2803.dismissal.wpd

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It appears that Burton already may have filed a civil rights complaint under 42
U.S.C. § 1983 challenging his validation as a BGF member. See Burton v. Lewis, No.
C 12-3158 JST (PR) (N.D. Cal. filed June 19, 2012).

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