Johnson v. Fong et al

Filing 35

ORDER OF DISMISSAL;TERMINATING ALL PENDING MOTIONS. Signed by Judge Claudia Wilken on 10/25/2011. (ndr, COURT STAFF) (Filed on 10/25/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 PAUL SAMUEL JOHNSON, No. C 11-02058 CW (PR) 4 ORDER OF DISMISSAL; TERMINATING ALL PENDING MOTIONS Plaintiff, 5 v. 6 7 WARDEN FONG, et al., Defendants. 8 / 9 Plaintiff, a state prisoner currently incarcerated at United States District Court For the Northern District of California 10 California State Prison - Solano, has filed a pro se civil rights 11 action pursuant to 42 U.S.C. § 1983. He has been granted leave to 12 proceed in forma pauperis. Plaintiff's complaint is now before the 13 Court for review pursuant to 28 U.S.C. § 1915A. 14 BACKGROUND 15 Plaintiff complains that on April 4, 2009, when he was 16 incarcerated at San Quentin State Prison (SQSP), a correctional 17 officer authored a false rules violation report (RVR) charging 18 Plaintiff with threatening him. As a result, in May 2009 Plaintiff 19 was found guilty of the charge at a disciplinary hearing, sentenced 20 to a term in administrative segregation in the security housing 21 unit (SHU) and forfeited 150 days of time credits. 22 Shortly after the hearing, Plaintiff was released on parole on 23 May 19, 2009. He subsequently was arrested in June 2009 and 24 returned to SQSP on November 17, 2009, after being found in 25 violation of parole and guilty of a new criminal offense. When 26 Plaintiff returned to SQSP, the Institutional Classification 27 Committee (ICC) elected to reimpose the SHU term that had been 28 suspended when Plaintiff was released on parole; on January 13, 1 2010, the ICC suspended the remainder of the term and released 2 Plaintiff to the general population. 3 Plaintiff claims he should not have been found guilty at the 4 May 2009 disciplinary hearing, and seeks the restoration of the 5 forfeited 150 days of time credits, the removal of the RVR from his 6 prison file and damages for the time he spent in the SHU because of 7 the finding of guilt. 8 Additionally, Plaintiff asks the Court to "fix the unfit 9 conditions" in the SHU at SQSP by, for example, removing the bugs United States District Court For the Northern District of California 10 and rats and fixing the broken lights. 11 12 13 Compl. at 3 ¶ V. DISCUSSION I. Standard of Review A federal court must conduct a preliminary screening in any 14 case in which a prisoner seeks redress from a governmental entity 15 or officer or employee of a governmental entity. 16 § 1915A(a). 17 claims and dismiss any claims that are frivolous, malicious, fail 18 to state a claim upon which relief may be granted or seek monetary 19 relief from a defendant who is immune from such relief. Id. 20 § 1915A(b)(1), (2). 21 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 22 1988). 28 U.S.C. In its review, the court must identify any cognizable Pro se pleadings must be liberally construed. 23 To state a claim under 42 U.S.C. § 1983, a plaintiff must 24 allege two essential elements: (1) that a right secured by the 25 Constitution or laws of the United States was violated, and 26 (2) that the alleged violation was committed by a person acting 27 under the color of state law. 28 (1988). West v. Atkins, 487 U.S. 42, 48 2 1 2 II. Plaintiff's Claims Plaintiff's allegations concerning his alleged unlawful 3 disciplinary proceeding do not state a claim for relief under 4 § 1983. 5 for the restoration of his forfeited time credits is moot because 6 the attachments to Plaintiff's complaint indicate that Plaintiff 7 was not assessed any credit loss when his new eligible release 8 dates were calculated upon his return to SQSP in November 2009. 9 As an initial matter, it appears that Plaintiff's request Further, even if Plaintiff's request is not moot, it is not United States District Court For the Northern District of California 10 cognizable in a civil rights action because the request is premised 11 upon a challenge to the duration of Plaintiff's confinement. 12 "Federal law opens two main avenues to relief on complaints related 13 to imprisonment: a petition for habeas corpus, 28 U.S.C. 14 § 2254, and a complaint under the Civil Rights Act of 1871, Rev. 15 Stat. § 1979, as amended, 42 U.S.C. § 1983. 16 lawfulness of confinement or to particulars affecting its duration 17 are the province of habeas corpus." 18 573, 579 (2006) (internal quotation and citation omitted). 19 to the extent a prisoner maintains he is entitled to "immediate or 20 speedier release" from confinement, such a claim may be asserted 21 only in a petition for a writ of habeas corpus. 22 Switzer, 131 S. Ct. 1289, 1293 (2011)(internal citation and 23 quotation omitted). 24 Challenges to the Hill v. McDonough, 547 U.S. Thus, See Skinner v. If Plaintiff wishes to directly challenge the disciplinary 25 action that resulted in the forfeiture of time credits, he must do 26 so in a petition for a writ of habeas corpus after he has exhausted 27 his state judicial remedies. 28 876-78 (9th Cir. 1990). See Young v. Kenny, 907 F.2d 874, Accordingly, this claim is DISMISSED 3 1 without prejudice to Plaintiff's bringing a habeas corpus action 2 once state remedies have been exhausted. 3 Additionally, Plaintiff cannot pursue any claim for damages or 4 injunctive relief that, if successful, necessarily would call into 5 question the validity of his conviction or confinement. 6 Humphrey, 512 U.S. 477 (1994), holds that in order to state a claim 7 for damages for an allegedly unconstitutional conviction or term of 8 imprisonment, or for other harm caused by actions whose 9 unlawfulness would render a conviction or sentence invalid, a Heck v. United States District Court For the Northern District of California 10 plaintiff asserting a violation of 42 U.S.C. § 1983 must prove that 11 the conviction or sentence has been reversed or declared invalid. 12 Id. at 486-87. 13 demonstrate the invalidity of the confinement or its duration, the 14 § 1983 lawsuit is barred, irrespective of whether the plaintiff 15 seeks monetary damages or equitable relief. 16 544 U.S. 74, 81 (2005). 17 If success in the § 1983 lawsuit would necessarily Wilkinson v. Dotson, Heck bars a claim of unconstitutional deprivation of time 18 credits because such a claim necessarily calls into question the 19 lawfulness of the plaintiff's continuing confinement, i.e., it 20 implicates the duration of the plaintiff's sentence. 21 v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996); cf. Ramirez v. 22 Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (where a claim would, 23 if successful, "necessarily accelerate" the prisoner’s release on 24 parole, Heck applies). 25 Wolff v. McDonnell, 418 U.S. 539 (1974), procedures in a 26 disciplinary hearing that resulted in the deprivation of time 27 credits if "the nature of the challenge to the procedures [is] such 28 as necessarily to imply the invalidity of the judgment." See Sheldon Heck also bars a claim for using the wrong 4 Edwards 1 v. Balisok, 520 U.S. 641, 645 (1997). 2 Here, Plaintiff claims he was denied the opportunity to 3 present at his disciplinary hearing an audiotape that would have 4 shown that the correctional officer who wrote the RVR was lying 5 about Plaintiff's having threatened him. 6 his claim for damages, that success would imply the invalidity of 7 the discipline imposed, i.e., the loss of time credits. 8 Plaintiff's claim for damages and for the removal of the RVR from 9 his prison file are DISMISSED without prejudice to Plaintiff's If Plaintiff succeeded on Therefore, United States District Court For the Northern District of California 10 bringing those claims in a new action if the credit forfeiture is 11 reversed or declared invalid. 12 Finally, Plaintiff seeks injunctive relief to remedy the 13 conditions of confinement in the SHU at SQSP. 14 longer is incarcerated at SQSP, however, his request is DISMISSED 15 as moot. 16 1995). 17 damages for the alleged unlawful conditions of his confinement in 18 the SHU because it is clear from the complaint and attachments 19 thereto that he did not exhaust his administrative remedies before 20 he filed suit. 21 Because Plaintiff no See Dilley v. Gunn, 64 F.3d 1365, 1368-69 (9th Cir. Additionally, Plaintiff cannot proceed with a claim for No confined inmate may bring an action with respect to prison 22 conditions under 42 U.S.C. § 1983 "until such administrative 23 remedies as are available are exhausted." 24 The exhaustion requirement is mandatory and must be completed 25 before the prisoner files suit. 26 524 (2002). 27 conceded that he did not exhaust administrative remedies, a claim 28 may be dismissed without prejudice. 42 U.S.C. § 1997e(a). Porter v. Nussle, 534 U.S. 516, If it is clear from the record that the prisoner has 5 See Wyatt v. Terhune, 315 F.3d 1 2 1108, 1120 (9th Cir. 2003). Plaintiff states that he has attached to his complaint the administrative appeals that show he exhausted his administrative 4 remedies. 5 thereto demonstrates, however, that Plaintiff exhausted through the 6 Director's level of review only his claim concerning the validity 7 of his disciplinary proceeding, and that he did so in 2010, after 8 his return to prison in November 2009. 9 does Plaintiff allege facts or provide documentation showing that 10 United States District Court For the Northern District of California 3 in the approximately six weeks between his April 4, 2009 placement 11 in the SHU and his May 19, 2009 release on parole, or at any time 12 since his return to prison in November 2009, he exhausted through 13 the Director's level of review a claim regarding the conditions of 14 his confinement in the SQSP SHU. 15 DISMISSED without prejudice for failure to exhaust administrative 16 remedies. 17 first exhausts the claim through the administrative appeals 18 process. A thorough review of the complaint and attachments Nowhere in his complaint Accordingly, this claim is Plaintiff may file a new action raising this claim if he 19 CONCLUSION 20 For the foregoing reasons, Plaintiff's claims are DISMISSED 21 22 23 24 WITHOUT PREJUDICE. The Clerk of the Court shall enter judgment, close the file, and terminate any pending motions. IT IS SO ORDERED. 25 Dated: 10/25/2011 26 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 27 28 6 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 (PC) JOHNSON et al, Case Number: CV11-02058 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 FONG ET AL et al, 7 Defendant. 8 9 United States District Court For the Northern District of California 10 11 12 / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 25, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 16 17 Paul Samuel Johnson F 41309 California State Prison - Solano P.O. Box 4000 9 Building #148 low 2100 Peabody Road Vacaville, CA 95969-4000 18 19 20 Dated: October 25, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 21 22 23 24 25 26 27 28 7

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