Stephen v. Chappell

Filing 15

ORDER OF DISMISSAL (Illston, Susan) (Filed on 6/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JIMMIE STEPHEN,

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United States District Court
For the Northern District of California

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No. C 14-4927 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.
K. CHAPPELL, warden,
Respondent.
/

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INTRODUCTION

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Jimmie Stephen, a prisoner incarcerated at San Quentin State Prison, has filed a pro se

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge a disciplinary

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decision. A recent decision from the Ninth Circuit requires that this action be dismissed for lack

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of habeas jurisdiction.

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BACKGROUND

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A rule violation report was issued on April 9, 2014, charging Stephen with "inciting a

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riot" or "delaying an officer." Docket # 1 at 5; Docket # 2-2 at 2. A disciplinary hearing was

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held on May 15, 2014; Stephen was found guilty of the "delaying an officer" and assessed a 61-

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day time-credit forfeiture as discipline.

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unsuccessful petition for writ of habeas corpus in the California Supreme Court to challenge the

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disciplinary decision. He then filed this action. His federal petition was liberally construed to

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assert a due process claim based on the alleged insufficiency of the evidence to support the

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Docket # 2-2 at 4. Stephen allegedly filed an

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disciplinary decision and the alleged failure to call two of his four requested witnesses.

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See Docket # 6.

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Stephen is currently incarcerated serving a sentence of 35 years to life in prison, Docket

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# 1 at 1-2; Docket # 13 at 8. That sentence was imposed on April 10, 1991 after he was

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convicted of murder. Docket # 13 at 8. He has not been found suitable for parole, as is evident

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from his statement that he unsuccessfully applied on July 18, 2014 to advance his parole hearing

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date. See Docket # 2-1 at 2; see also Docket #9 at 25 in Stephen v. CDCR, No. 15-1135 LB

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(alleging BPH improperly denied his petition to advance his next parole date); see generally Cal.

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Penal Code § 3041.5(d) (petitions to advance parole hearing dates).

United States District Court
For the Northern District of California

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The

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Ninth Circuit recently resolved some ambiguities as to when a prison disciplinary challenge had

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to be brought in a habeas action and when such a challenge had to be brought in a civil rights

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action. In Nettles v. Grounds, Ninth Cir. No. 12-16935 (9th Cir. May 28, 2015), the court held

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that "relief is available to a prisoner under the federal habeas statute only if success on the claim

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would 'necessarily spell speedier release' from custody, which Skinner[v. Switzer, 562 U.S. 521,

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533-34 (2011)] suggested would include termination of custody, acceleration of the future date

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of release from custody, or reduction of the level of custody." Nettles, slip op. at 18. Earlier

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Ninth Circuit cases indicating "that the writ of habeas corpus may extend to claims that, if

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successful, would merely be likely to or have the potential to lead to a speedier release" were

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"superceded by the Supreme Court's rulings." Id. at 19. Nettles stands for the proposition that,

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to be cognizable in habeas, a claim has to necessarily accelerate release – not just likely or

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merely potentially accelerate release – from confinement if successful. See id. at 15, 18.

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Nettles applied its necessarily-spells-speedier-release rule to an indeterminately-sentenced

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life prisoner who sought restoration of 30 days of lost time credits and expungement of the rule

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violation report that led to the loss of time credits. See Nettles, slip op. at 20. Nettles determined

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that habeas jurisdiction was not established because neither form of relief would necessarily
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accelerate the prisoner's release from prison, or terminate his custody, or reduce his level of

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custody. See id. at 20-24. Significantly, it could not be determined that the restoration of time

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credits would necessarily affect the duration of the prisoner's confinement because he had not

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yet been found suitable for parole and it was unknown what his term would be if he was at some

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future date found suitable for parole. Id. at 23-24. "Without knowing how many years Nettles

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will serve before the Board finds him suitable for parole or the length of his base term, we

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cannot conclude that restoration of the lost good-time credits would necessarily affect the

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duration of Nettles's confinement if and when the Board finds him suitable for parole." Id. at

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The court also rejected the argument that habeas jurisdiction existed because the

United States District Court
For the Northern District of California

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expungement of the rule violation report would remove "roadblocks to parole" suitability;

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although the rule violation report "will likely have some effect on the Board's consideration,

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there is no basis for concluding that the expungement of this report from the record will

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'necessarily spell speeder release'" or reduce his level of custody. Id. at 22.

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Turning to the case at hand, the 60-day loss of credits imposed on Stephen in the

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disciplinary decision will not necessarily affect the duration of his confinement. Stephen is in

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the same situation as the Nettles plaintiff: he is an indeterminately sentenced prisoner not yet

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found suitable for parole and for whom a base term has not yet been set. It cannot be said that

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the removal of the rule violation report or the restoration of time credits will necessarily result

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in an earlier release date for Stephen. See Nettles, slip op. at 20-24.

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therefore is absent under the reasoning of Nettles. Accord Hardney v. Virga, 2015 WL 3648697

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(E. D. Cal. June 10, 2015) (applying Nettles and recommending dismissal of habeas petition

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from life inmate challenging a loss of credits).

Habeas jurisdiction

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In theory, it should be possible for Stephen to file a civil rights action to challenge the

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prison disciplinary decision. There are some obstacles to such an action, which he should bear

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in mind in determining whether to spend the money to file a new civil rights action. First, his

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efforts to exhaust state court remedies may preclude a prisoner from litigating the same claims

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in a civil rights action because state habeas proceedings can have issue or claim preclusive

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effects on later § 1983 actions. See Silverton v. Dep't of Treasury, 644 F.2d 1341, 1347 (9th
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Cir.) (state habeas proceeding precludes identical issue from being relitigated in subsequent §

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1983 action if state habeas court afforded full and fair opportunity for issue to be heard);

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Gonzalez v. CDC, 739 F.3d 1226, 1230 (9th Cir. 2014) (extending rule of Silverton to cover

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claim preclusion as well as issue preclusion). Second, Stephen almost certainly will have to pay

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the full $400.00 fee ($350.00 filing fee plus $50.00 administrative fee) if he files a civil rights

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action to challenge the disciplinary decision because he is subject to 28 U.S.C. § 1915(g)'s

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restriction on filings by prisoners who have had three or more prior cases dismissed on the

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grounds that they were malicious, frivolous, or failed to state a claim.
Although a district court may construe a habeas petition by a prisoner attacking the

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United States District Court
For the Northern District of California

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conditions of his confinement as pleading civil rights claims under 42 U.S.C. § 1983,

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971), the court declines to do so here. The

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difficulty with construing a habeas petition as a civil rights complaint is that the two forms used

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by most prisoners request different information and much of the information necessary for a civil

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rights complaint is not included in the habeas petition filed here. Examples of the potential

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problems created by using the habeas petition form rather than the civil rights complaint form

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include the potential omission of intended defendants, potential failure to link each defendant

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to the claims, and potential absence of an adequate prayer for relief. Additionally, there is doubt

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whether the prisoner is willing to pay the civil action filing fee of $ 350.00 (plus a $50.00

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administrative fee) rather than the $5.00 habeas filing fee to pursue his claims. The habeas

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versus civil rights distinction is not just a matter of using different pleading forms. A habeas

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action differs in many ways from a civil rights action: (1) a habeas petitioner has no right to a

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jury trial on his claims, (2) the court may be able to make credibility determinations based on

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the written submissions of the parties in a habeas action, (3) state court (rather than

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administrative) remedies must be exhausted for the claims in a habeas action, (4) the proper

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respondent in a habeas action is the warden in charge of the prison, but he or she might not be

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able to provide the desired relief when the prisoner is complaining about a condition of

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confinement, and (5) damages cannot be awarded in a habeas action. While a prisoner may think

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he has found a loophole that allows him to save hundreds of dollars – by filing a habeas petition
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with a $5.00 fee rather than the usual $350.00 filing fee (plus $50.00 administrative fee) for a

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civil action – the loophole proves unhelpful because he ultimately cannot proceed in habeas and

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will be charged the regular civil action filing fee to challenge conditions of confinement. It is

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not in the interest of judicial economy to allow prisoners to file civil rights actions on habeas

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forms because virtually every such case, including this one, will be defective and require

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additional court resources to deal with the problems created by the different filing fees and the

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absence of information on the habeas form.

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CONCLUSION

United States District Court
For the Northern District of California

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For the foregoing reasons, this action for a writ of habeas corpus is DISMISSED for lack

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of jurisdiction. The dismissal is without prejudice to petitioner filing a civil rights action under

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42 U.S.C. § 1983, preferably using the court's civil rights complaint form. The clerk shall close

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the file.

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IT IS SO ORDERED.
DATED: June 18, 2015
SUSAN ILLSTON
United States District Judge

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