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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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PAUL SAMUEL JOHNSON,

No. C 11-02058 CW (PR)

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ORDER OF DISMISSAL;
TERMINATING ALL PENDING MOTIONS

Plaintiff,
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v.
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WARDEN FONG, et al.,
Defendants.

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Plaintiff, a state prisoner currently incarcerated at
United States District Court
For the Northern District of California

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California State Prison - Solano, has filed a pro se civil rights
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action pursuant to 42 U.S.C. § 1983.

He has been granted leave to

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proceed in forma pauperis.

Plaintiff's complaint is now before the

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Court for review pursuant to 28 U.S.C. § 1915A.
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BACKGROUND
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Plaintiff complains that on April 4, 2009, when he was
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incarcerated at San Quentin State Prison (SQSP), a correctional
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officer authored a false rules violation report (RVR) charging
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Plaintiff with threatening him.

As a result, in May 2009 Plaintiff

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was found guilty of the charge at a disciplinary hearing, sentenced
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to a term in administrative segregation in the security housing
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unit (SHU) and forfeited 150 days of time credits.
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Shortly after the hearing, Plaintiff was released on parole on
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May 19, 2009.

He subsequently was arrested in June 2009 and

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returned to SQSP on November 17, 2009, after being found in
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violation of parole and guilty of a new criminal offense.

When

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Plaintiff returned to SQSP, the Institutional Classification
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Committee (ICC) elected to reimpose the SHU term that had been
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suspended when Plaintiff was released on parole; on January 13,

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2010, the ICC suspended the remainder of the term and released

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Plaintiff to the general population.

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Plaintiff claims he should not have been found guilty at the

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May 2009 disciplinary hearing, and seeks the restoration of the

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forfeited 150 days of time credits, the removal of the RVR from his

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prison file and damages for the time he spent in the SHU because of

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the finding of guilt.

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Additionally, Plaintiff asks the Court to "fix the unfit

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conditions" in the SHU at SQSP by, for example, removing the bugs

United States District Court
For the Northern District of California

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and rats and fixing the broken lights.

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Compl. at 3 ¶ V.

DISCUSSION
I.

Standard of Review
A federal court must conduct a preliminary screening in any

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case in which a prisoner seeks redress from a governmental entity

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or officer or employee of a governmental entity.

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§ 1915A(a).

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claims and dismiss any claims that are frivolous, malicious, fail

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to state a claim upon which relief may be granted or seek monetary

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relief from a defendant who is immune from such relief. Id.

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§ 1915A(b)(1), (2).

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Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1988).

28 U.S.C.

In its review, the court must identify any cognizable

Pro se pleadings must be liberally construed.

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To state a claim under 42 U.S.C. § 1983, a plaintiff must

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allege two essential elements: (1) that a right secured by the

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Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting

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under the color of state law.

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(1988).

West v. Atkins, 487 U.S. 42, 48

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II.

Plaintiff's Claims
Plaintiff's allegations concerning his alleged unlawful

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disciplinary proceeding do not state a claim for relief under

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§ 1983.

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for the restoration of his forfeited time credits is moot because

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the attachments to Plaintiff's complaint indicate that Plaintiff

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was not assessed any credit loss when his new eligible release

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dates were calculated upon his return to SQSP in November 2009.

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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

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cognizable in a civil rights action because the request is premised

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upon a challenge to the duration of Plaintiff's confinement.

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"Federal law opens two main avenues to relief on complaints related

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to imprisonment: a petition for habeas corpus, 28 U.S.C.

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§ 2254, and a complaint under the Civil Rights Act of 1871, Rev.

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Stat. § 1979, as amended, 42 U.S.C. § 1983.

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lawfulness of confinement or to particulars affecting its duration

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are the province of habeas corpus."

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573, 579 (2006) (internal quotation and citation omitted).

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to the extent a prisoner maintains he is entitled to "immediate or

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speedier release" from confinement, such a claim may be asserted

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only in a petition for a writ of habeas corpus.

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Switzer, 131 S. Ct. 1289, 1293 (2011)(internal citation and

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quotation omitted).

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Challenges to the

Hill v. McDonough, 547 U.S.
Thus,

See Skinner v.

If Plaintiff wishes to directly challenge the disciplinary

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action that resulted in the forfeiture of time credits, he must do

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so in a petition for a writ of habeas corpus after he has exhausted

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his state judicial remedies.

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876-78 (9th Cir. 1990).

See Young v. Kenny, 907 F.2d 874,

Accordingly, this claim is DISMISSED
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without prejudice to Plaintiff's bringing a habeas corpus action

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once state remedies have been exhausted.

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Additionally, Plaintiff cannot pursue any claim for damages or

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injunctive relief that, if successful, necessarily would call into

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question the validity of his conviction or confinement.

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Humphrey, 512 U.S. 477 (1994), holds that in order to state a claim

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for damages for an allegedly unconstitutional conviction or term of

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imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction or sentence invalid, a

Heck v.

United States District Court
For the Northern District of California

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plaintiff asserting a violation of 42 U.S.C. § 1983 must prove that

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the conviction or sentence has been reversed or declared invalid.

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Id. at 486-87.

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demonstrate the invalidity of the confinement or its duration, the

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§ 1983 lawsuit is barred, irrespective of whether the plaintiff

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seeks monetary damages or equitable relief.

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544 U.S. 74, 81 (2005).

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If success in the § 1983 lawsuit would necessarily

Wilkinson v. Dotson,

Heck bars a claim of unconstitutional deprivation of time

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credits because such a claim necessarily calls into question the

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lawfulness of the plaintiff's continuing confinement, i.e., it

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implicates the duration of the plaintiff's sentence.

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v. Hundley, 83 F.3d 231, 233 (8th Cir. 1996); cf. Ramirez v.

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Galaza, 334 F.3d 850, 858-59 (9th Cir. 2003) (where a claim would,

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if successful, "necessarily accelerate" the prisoner’s release on

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parole, Heck applies).

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Wolff v. McDonnell, 418 U.S. 539 (1974), procedures in a

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disciplinary hearing that resulted in the deprivation of time

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credits if "the nature of the challenge to the procedures [is] such

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as necessarily to imply the invalidity of the judgment."

See Sheldon

Heck also bars a claim for using the wrong

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Edwards

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v. Balisok, 520 U.S. 641, 645 (1997).

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Here, Plaintiff claims he was denied the opportunity to

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present at his disciplinary hearing an audiotape that would have

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shown that the correctional officer who wrote the RVR was lying

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about Plaintiff's having threatened him.

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his claim for damages, that success would imply the invalidity of

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the discipline imposed, i.e., the loss of time credits.

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Plaintiff's claim for damages and for the removal of the RVR from

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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

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bringing those claims in a new action if the credit forfeiture is

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reversed or declared invalid.

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Finally, Plaintiff seeks injunctive relief to remedy the

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conditions of confinement in the SHU at SQSP.

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longer is incarcerated at SQSP, however, his request is DISMISSED

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as moot.

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1995).

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damages for the alleged unlawful conditions of his confinement in

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the SHU because it is clear from the complaint and attachments

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thereto that he did not exhaust his administrative remedies before

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he filed suit.

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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

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conditions under 42 U.S.C. § 1983 "until such administrative

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remedies as are available are exhausted."

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The exhaustion requirement is mandatory and must be completed

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before the prisoner files suit.

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524 (2002).

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conceded that he did not exhaust administrative remedies, a claim

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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

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See Wyatt v. Terhune, 315 F.3d

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1108, 1120 (9th Cir. 2003).
Plaintiff states that he has attached to his complaint the
administrative appeals that show he exhausted his administrative

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remedies.

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thereto demonstrates, however, that Plaintiff exhausted through the

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Director's level of review only his claim concerning the validity

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of his disciplinary proceeding, and that he did so in 2010, after

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his return to prison in November 2009.

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does Plaintiff allege facts or provide documentation showing that

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United States District Court
For the Northern District of California

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in the approximately six weeks between his April 4, 2009 placement

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in the SHU and his May 19, 2009 release on parole, or at any time

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since his return to prison in November 2009, he exhausted through

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the Director's level of review a claim regarding the conditions of

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his confinement in the SQSP SHU.

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DISMISSED without prejudice for failure to exhaust administrative

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remedies.

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first exhausts the claim through the administrative appeals

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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

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CONCLUSION

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For the foregoing reasons, Plaintiff's claims are DISMISSED

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WITHOUT PREJUDICE.
The Clerk of the Court shall enter judgment, close the file,
and terminate any pending motions.
IT IS SO ORDERED.

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Dated:

10/25/2011

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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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(PC) JOHNSON et al,
Case Number: CV11-02058 CW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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FONG ET AL et al,
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Defendant.
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United States District Court
For the Northern District of California

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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.

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Paul Samuel Johnson F 41309
California State Prison - Solano
P.O. Box 4000
9 Building #148 low
2100 Peabody Road
Vacaville, CA 95969-4000

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Dated: October 25, 2011
Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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