Stockton v. Lewis

Filing 15

ORDER by Judge Ronald M. Whyte Granting in Part and Denying in Part 8 Motion to Dismiss; Granting 14 Motion to Withdraw Motion to Consolidate; Further Briefing. (jgS, COURT STAFF) (Filed on 3/3/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT JOHN STOCKTON, JR.,
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Petitioner,
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vs.
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ACTING WARDEN CLARK DUCART,

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Respondent.

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No. C 13-3978 RMW (PR)
ORDER GRANTING IN PART AND
DENYING IN PART RESPONDENT’S
MOTION TO DISMISS; GRANTING
PETITIONER’S MOTION TO
WITHDRAW MOTION TO
CONSOLIDATE; FURTHER
BRIEFING
(Docket Nos. 8, 14)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 challenging the prison’s Institutional Classification Committee’s

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2011 decision during his periodic review hearing to retain petitioner in the secured housing unit

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(“SHU”). Petitioner had been placed in the SHU in 2009 after being validated as a gang

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member. The court ordered respondent to show cause why the petition should not be granted.

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Respondent has filed a motion to dismiss for failure to state a claim. Petitioner has filed an

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opposition, and respondent has filed a reply. For the reasons below, the court GRANTS in part

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and DENIES in part respondent’s motion to dismiss.1

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Petitioner’s motion to withdraw his motion to consolidate his cases is GRANTED.

Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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BACKGROUND
In his petition, petitioner claims that he was validated as a gang member in 2009, which

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resulted in his indefinite placement in the SHU. Petitioner argues that his November 2011

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periodic review was not meaningful, and his continued retention was not supported by some

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evidence, in violation of his right to due process.

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DISCUSSION
Respondent argues that the petition should be dismissed because petitioner the claims

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will not necessarily result in speedier release; petitioner fails to state a claim under the AEDPA;

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the petition fails to set forth sufficient facts for relief; the claims are successive to petitioner’s

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claims in Stockton v. Adams, No. 11-5562 RMW (“Stockton I”); and the state law claims are not

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cognizable.

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Respondent argues that habeas jurisdiction is absent because success on petitioner’s

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claims will not necessarily result in speedier release. Challenges to the validity of any

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confinement or to particulars affecting its duration are the province of habeas corpus.” Hill v.

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McDonough, 547 U.S. 573, 579 (2006) (quotation marks and citation omitted). “An inmate’s

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challenge to the circumstances of his confinement, however, may be brought under § 1983.” Id.

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On the other hand, a writ of habeas corpus is the appropriate federal remedy when “a state

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prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he

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seeks is a determination that he is entitled to an immediate or speedier release from that

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imprisonment.” Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see Docken v. Chase, 393 F.3d

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1024, 1026 (9th Cir. 2004). The two remedies are not always mutually exclusive, however. Id.

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at 1031; see also id. at 1027 n.2.

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The Ninth Circuit has permitted habeas to be used to assert claims that are “likely to

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accelerate” eligibility for parole, even though success in such cases would not necessarily

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implicate the fact or duration of confinement. Id. at 1028 (citing Bostic v. Carlson, 884 F.2d

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1267 (9th Cir. 1989), and Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003)). “Thus,

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although Supreme Court case law makes clear that § 1983 is not available where a prisoner’s

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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claim ‘necessarily’ implicates the validity or duration of confinement, it does not appear to set

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out any mirror-image limitation on habeas jurisdiction.” Docken, 393 F.3d at 1028; but see

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Ramirez, 334 F.3d at 859 (“habeas jurisdiction is absent, and a § 1983 action proper, where a

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successful challenge to a prison condition will not necessarily shorten the prisoner’s sentence”).

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After a careful review, and recognizing that district courts in this circuit have not been

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uniform in deciding this particular issue of whether a claim like petitioner’s is properly brought

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in a habeas action, the court concludes that petitioner’s claims may be brought in a Section 2254

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petition. See, e.g., Chavez v. Lewis, No. 11-0376 EMC, 2012 WL 538242, *11 (N.D. Cal. Feb.

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17, 2012) (denying motion to dismiss, inter alia, on the basis that habeas jurisdiction is proper

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when petitioner is requesting a transfer from the SHU into the general prison population in order

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to be considered for parole eligibility); Larriva v. Watson, No. 1:06-cv-01453 OWW WMW,

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2008 WL 398847, *3 (E.D. Cal. Feb. 12, 2008) (denying motion to dismiss on ground that

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habeas jurisdiction is absent when prisoner challenges his gang validation and SHU placement);

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Murphy v. Department of Corrections and Rehabilitation, No. C 06-04956 MHP, 2008 WL

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111226, at *7 (N.D. Cal. Jan. 9, 2008) (action seeking expungement of serious disciplinary

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conviction cognizable on habeas review because expungement could affect the duration of the

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petitioner’s confinement by making it more likely that he would be granted parole). Here,

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although release from the SHU would not “necessarily shorten [petitioner’s] sentence,” Ramirez,

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34 F.3d at 859, it is “likely” to accelerate his eligibility for parole, Bostic, 884 F.2d at 1269,

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and/or “could potentially affect the duration of his confinement.” Docken, 393 F.3d at 1031.

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Moreover, the Supreme Court has intimated that not all habeas cases must fall within the

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“core” types of claims. “It is one thing to say that permissible habeas relief, as our cases

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interpret the statute, includes ordering a “quantum change in the level of custody,” Graham v.

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Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (Posner, J.), such as release from incarceration to

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parole. It is quite another to say that the habeas statute authorizes federal courts to order relief

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that neither terminates custody, accelerates the future date of release from custody, nor reduces

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the level of custody.” Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring).

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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Here, petitioner’s request to be released from the SHU and back into the regular prison

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environment, if successful, would result in a “quantum change in the level of custody.” See

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Grahan, 922 F.2d at 381 (“If the prisoner is seeking what can fairly be described as a quantum

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change in the level of custody – whether outright freedom, or freedom subject to the limited

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reporting and financial constraints of bond or parole or probation, or the run of the prison in

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contrast to the approximation to solitary confinement that is disciplinary segregation – then

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habeas corpus is his remedy.”). Accordingly, out of an abundance of caution, the court rejects

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respondent’s argument that habeas jurisdiction is absent in this case.

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Respondent also argues that the Supreme Court has not yet squarely addressed the issue

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of whether inmates have a liberty interest in transferring out of administrative segregation into

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general population and therefore, petitioner fails to state a claim. Respondent’s interpretation of

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petitioner’s claim appears to be too narrow. Moreover, respondent’s argument is more suited to

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answer the question of whether petitioner is entitled to relief in federal court on the merits, rather

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than whether petitioner has stated a claim for relief. As the court previously found, liberally

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construed, petitioner claims that his 2011 periodic review did not offer a “meaningful review”

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and that its decision was not based on “some evidence.”

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The Supreme Court holdings on prisoners’ rights in administrative segregation placement

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decisions are quite limited and are most recently found in Sandin v. Conner, 515 U.S. 472

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(1995), which sets out the criteria for determining whether there is a protected liberty interest,

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and Wilkinson v. Austin, 545 U.S. 209 (2005), which held that an indefinite placement in a harsh

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administrative segregation unit deprived inmates of a protected liberty interest. Deprivations

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that are authorized by state law and are less severe or more closely related to the expected terms

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of confinement may also amount to deprivations of a procedurally protected liberty interest,

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provided that (1) state statutes or regulations narrowly restrict the power of prison officials to

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impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the liberty in

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question is one of “real substance.” See Sandin, 515 U.S. at 477-87. Generally, “real substance”

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will be limited to freedom from (1) a restraint that imposes “atypical and significant hardship on

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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the inmate in relation to the ordinary incidents of prison life,” id. at 484, or (2) state action that

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“will inevitably affect the duration of [a] sentence,” id. at 487. The Supreme Court in Wilkinson

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suggested that indefinite placement in a restrictive “supermax” facility, where inmates are not

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eligible for parole consideration and receive annual reviews imposes an “atypical and significant

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hardship within the correctional context.” See Wilkinson, 545 U.S. at 223-25.

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Based on the above referenced law, petitioner appears to have a protected liberty interest

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against indefinite placement in the SHU. SHU conditions are severe and may affect petitioner’s

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eligibility for parole. The potential to spend years in the harsh conditions of the SHU presents an

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atypical and significant hardship and therefore amounts to a deprivation of a protected liberty

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interest. The cases establish that once an inmate has been placed in administrative segregation,

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as petitioner has, due process requires that prison officials engage in some sort of periodic

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review of the inmate’s confinement in administrative segregation. See Hewitt v. Helms, 459

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U.S. 460, 477 n.9 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 483

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n.5 (1995); Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir. 1986). Lower courts have

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found that those periodic reviews must be more than “meaningless gestures” to satisfy due

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process. Toussaint v. Rowland, 711 F. Supp. 536, 540 n.11 (N.D. Cal. 1989), citing Toussaint v.

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McCarthy, 801 F.2d at 1102. Accordingly, the court rejects respondent’s argument that

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petitioner has failed to state a claim.

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Respondent argues that the court should dismiss the petition as failing to set forth

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sufficient facts for relief. In ordinary civil proceedings, the governing rule, Rule 8 of the Federal

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Rules of Civil Procedure, requires only “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 2(c) of the Rules Governing

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Habeas Corpus cases requires a more detailed statement. The habeas rule instructs the petitioner

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to “specify all the grounds for relief available to [him]” and to “state the facts supporting each

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ground.” Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts, 28

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U.S.C. foll. § 2254; see also Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (habeas

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petitioner must state his claims with sufficient specificity). Here, despite respondent’s statement

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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to the contrary, petitioner specifies that he is challenging his November 2011 periodic review as

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lacking “meaningful review,” and being unsupported by “some evidence,” and confirms the

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same in his opposition. Thus, the court finds that it is unnecessary to dismiss the petition with

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leave to amend to allege more specifics.

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Respondent further argues that, to the extent this petition challenges petitioner’s initial

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2009 gang validation and initial placement in the SHU, it should be dismissed as successive.

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The court agrees. Section 2244(a) provides, “No circuit or district judge shall be required to

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entertain an application for a writ of habeas corpus to inquire into the detention of a person

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pursuant to a judgment of a court of the United States if it appears that the legality of such

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detention has been determined by a judge or court of the United States on a prior application for

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a writ of habeas corpus.” “Generally, a new petition is second or successive if it raises claims

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that were or could have been adjudicated on their merits in an earlier petition.” Cooper v.

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Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Here, petitioner is challenging his 2011 periodic

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review decision but petitioner also discusses his initial gang validation. The court recognizes

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that in Stockton I, petitioner challenged the initial 2009 gang validation and initial placement in

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the SHU on the ground that they violated due process. The court addressed and denied Stockton

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I on February 10, 2015. Thus, to the extent petitioner is attempting to raise those same claims in

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this petition, the claims are denied as successive. Respondent’s motion to dismiss these

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successive claims is GRANTED.

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Respondent next argues that petitioner’s petition should be dismissed to the extent it

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requests relief based on state law grounds. The court agrees. A person in custody pursuant to

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the judgment of a state court can obtain a federal writ of habeas corpus only on the ground that

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he is in custody in violation of the Constitution or laws or treaties of the United States. 28

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U.S.C. § 2254(a). In other words, “it is only noncompliance with federal law that renders a

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State’s criminal judgment susceptible to collateral attack in the federal courts.” Wilson v.

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Corcoran, 131 S. Ct. 13, 16 (2010) (emphasis in original). The Supreme Court has repeatedly

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held that federal habeas writ is unavailable for violations of state law or for alleged error in the

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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interpretation or application of state law. See Swarthout v. Cooke, 131 S. Ct. 859, 861-62

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(2011). Accordingly, to the extent petitioner is arguing that the state laws were violated, those

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claims are not properly before this court. Respondent’s motion to dismiss petitioner’s state law

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claims is GRANTED.

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CONCLUSION

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Respondent’s motion to dismiss is GRANTED in part and DENIED in part.

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Respondent’s motion is GRANTED to the extent petitioner is attempting to raise successive

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claims regarding his 2009 initial validation and placement in the SHU, or state law claims.

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Those claims are DISMISSED. Respondent’s motion is DENIED as to his remaining assertions.

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Petitioner’s motion to withdraw his motion to consolidate his cases is GRANTED.

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Respondent shall file with the court and serve on petitioner, within ninety days of the

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date this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition. If petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the court and serving it on respondent within

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thirty days of the date the answer is filed.

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It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that all

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communications with the court must be served on respondent by mailing a true copy of the

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document to respondent’s counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must

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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal

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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

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The order terminates docket numbers 8 and 14.

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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IT IS SO ORDERED.
DATED:
_________________________
RONALD M. WHYTE
United States District Judge

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Order Granting in Part and Denying in Part Respondent’s Motion to Dismiss; Granting Petitioner’s Motion to
Withdraw Motion to Consolidate; Further Briefing
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

ROBERT JOHN STOCKTON JR,

Case Number: CV13-03978 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
ACTING WARDEN CLERK DUCART,
Defendant.

/

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 March 3, 2015, 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.

Robert John Stockton J-80992
C11-102, Security Housing Unit
Pelican Bay State Prison, SHU
P.O. Box 7500
Crescent City, CA 95532
Dated: March 3, 2015
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk