Rothwell v. Hatton

Filing 11

ORDER GRANTING 7 MOTION TO DISMISS WITH LEAVE TO AMEND. This federal action is DISMISSED without prejudice to Rothwell's filing a civil rights action. Signed by Judge William H. Orrick on 04/24/2018. (jmdS, COURT STAFF) (Filed on 4/24/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL ROTHWELL,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 3:17-cv-05466-WHO
ORDER GRANTING MOTION TO
DISMISS WITH LEAVE TO AMEND

v.
SHAWN HATTON,

Re: Dkt. No. 7

Defendant.

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Represented petitioner Michael Rothwell’s petition for habeas corpus relief asserts five

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claims for relief based on a 2016 parole board finding that he violated the rules for using

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controlled substances prior to allowing an investigation into whether his positive test result was

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due to over-the-counter medications. Petition (Dkt. No. 1 at 6–7). Respondent Shawn Hatton, on

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behalf of the State of California, moves to dismiss the petition for lack of federal habeas

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jurisdiction. Mot. to Dismiss (Dkt. No. 7).

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In the Ninth Circuit, “if a state prisoner’s claim does not lie at ‘the core of habeas corpus,’

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it may not be brought in habeas corpus but must be brought, ‘if at all,’ under § 1983… .” Nettles

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v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016)(citations omitted). In other words, “[i]f the

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prisoner’s claim challenges the fact or duration of the conviction or sentence, compliance with

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AEDPA is mandated, while if the claim challenges any other aspect of prison life, the prisoner

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must comply with the PLRA [Prison Litigation Reform Act].” Id.; see also id. at 932

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(“Congress’s enactment of the Prison Litigation Reform Act (PLRA) [citation] indicated an intent

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to make § 1983 the exclusive remedy for ‘all inmate suits about prison life[.]”); id. at 933 (“[A] §

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1983 action subject to the PLRA exhaustion requirements, which mandate that a prisoner first

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exhaust the prison’s administrative processes to the extent they are available, is the best means of

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addressing such claims.”).
As in Nettles, Rothwell challenges disciplinary proceedings underlying a rules violation

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report. Cf. Nettles, 830 F.3d at 934. The Ninth Circuit rejected Nettles’s argument that his claims

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would affect the duration of his sentence because if he succeeded in expunging the rules violation

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report, the parole board would more likely set his next parole hearing at an earlier date, and would

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be more likely to give him a favorable ruling. Id. The circumstances here differ from those in

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Nettles because the parole board found Rothwell suitable for parole and the governor reversed,

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based in part on the recent rules violation. See Governor’s Decision (“This very recent use of a

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serious drug alone demonstrates that Mr. Rothwell is not suitable for parole.”)(Petition, Ex. L,

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United States District Court
Northern District of California

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Dkt. No. 1 at 101).
Notwithstanding this notable distinction, the same conclusion must follow: “[s]uccess on

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the merits of [Rothwell’s] claim would not necessarily lead to immediate or speedier release

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because the expungement of the challenged disciplinary violation would not necessarily lead to a

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grant of parole.” Nettles, 830 F.3d at 934–35. The Governor’s Letter shows that the 2016 rule

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violation was one of many factors the Governor considered in finding Rothwell unsuitable for

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parole. See Governor’s Decision (Dkt. No. 1 at 99–101)(recounting Rothwell’s “alarming history

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of violence” before addressing Rothwell’s ability “to remain sober if released.”). But see id. (Dkt.

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No. 1 at 101)(“This very recent use of a serious drug alone demonstrates that Mr. Rothwell is not

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suitable for parole.”)(emphasis added). Although Rothwell argues that “it is certainly far more

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probable” that he would have been found suitable for parole if he prevailed since the parole board

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had already granted him parole, he concedes that “expungement of the disciplinary rules violations

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would not automatically result in [his] release from prison… .” Opp’n at 2 (Dkt. No. 10).

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I agree with Rothwell’s characterization of the situation, but that does not alter the

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conclusion that his request for relief turns on certain “circumstances of confinement” and not “the

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validity of any confinement” or “particulars affecting its duration[.]” Nettles, 830 F.3d at 927

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(quoting Muhammad v. Close, 540 U.S. 749, 750 (2004)). Under these circumstances, “a § 1983

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action is the exclusive vehicle for claims brought by state prisoners that are not within the core of

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habeas corpus.” Id. In this vein, Rothwell consents to the court construing his petition to plead a
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cause of action under § 1983. Opp’n at 10.

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In an appropriate case, a habeas petition may be construed as a section 1983 complaint.

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Wilwording v. Swenson, 404 U.S. 249, 251 (1971). Although the Court may construe a habeas

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petition as a civil rights action, it is not required to do so. Since the Wilwording case was decided,

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there have been significant changes in the law. For instance, the filing fee for a habeas petition is

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five dollars; for civil rights cases, however, the fee is now $400 ($350 if IFP status is granted) and

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under the PLRA the prisoner is required to pay it, even if granted IFP status, by way of deductions

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from income to the prisoner’s trust account. See 28 U.S.C. § 1915(b). A prisoner who might be

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willing to file a habeas petition for which he or she would not have to pay a filing fee might feel
otherwise about a civil rights complaint for which the $400 fee would be deducted from income to

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United States District Court
Northern District of California

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his or her prisoner account. Also, a civil rights complaint which is dismissed as malicious,

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frivolous, or for failure to state a claim would count as a “strike” under 28 U.S.C. § 1915(g),

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which is not true for habeas cases.

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In addition, Rothwell is reminded that he must exhaust his administrative remedies prior

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to filing a civil rights action. Prisoners must properly exhaust their administrative remedies before

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filing suit in federal court, as mandated by the PLRA. Woodford v. Ngo, 548 U.S. 81, 93 (2006).

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“No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

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other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until

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

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is mandatory and a prisoner’s failure to comply with this requirement cannot be excused by the

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courts. Ross v. Blake, 136 S. Ct. 1850, 1856-1858 (2016). Proper exhaustion requires using all

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steps of an administrative process and complying with “deadlines and other critical procedural

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rules.” Woodford, 548 U.S. at 90.

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In view of these potential pitfalls for Rothwell if the Court were to construe the petition as
a civil rights complaint, this federal action is DISMISSED without prejudice to his filing a civil

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rights action if he wishes to do so in light of the above.
IT IS SO ORDERED.
Dated: April 24, 2018

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William H. Orrick
United States District Judge

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United States District Court
Northern District of California

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