-AJB (HC) Downs v. California Board of Prison Terms II

Filing 49

ORDER; denying 19 Petitioner's motion for summary judgment; denying 19 Petitioner's motion for preliminary injunction; denying 26 Petitioner's motion for appointment of counsel; denying 26 Petitioner's motion to be released from prison. Signed by Judge Marilyn L. Huff on 3/25/11. (All non-registered users served via U.S. Mail Service)(rlu) Corrected text on 3/25/2011 (rlu).

-MDD Downs v. California Board of Prison Terms II

Doc. 49

1 2 3 4 5 6 7 8 9 10 11 12 13 14 vs. 15 16 17 18 19 20 21 22 23 On September 21, 2010, Petitioner Gregory Downs ("Petitioner") filed a writ of habeas 24 corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On December 17, 2010, Petitioner filed 25 a motion for preliminary injunction and a motion for summary judgment. (Doc. No. 19.) On 26 January 6, 2011, Petitioner filed a motion for preliminary injunction, a motion for summary 27 judgment, a motion for appointment of counsel, and a motion for release from prison. (Doc. 28 No. 26.) On February 8, 2011, the magistrate judge issued a report and recommendation
-110-CV-2029

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
GREGORY DOWNS, Petitioner, CASE NO. 10-CV-2029-H (AJB) ORDER (1) DENYING PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION (2) DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT (3) DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL (4) DENYING PETITIONER'S MOTION FOR RELEASE FROM PRISON

DOMINGO URIBE, JR., Warden, et al., Respondents.

Dockets.Justia.com

1 recommending that the Court deny Petitioner's motion for preliminary injunction, deny 2 Petitioner's motion for summary judgment, deny Petitioner's motion for appointment of 3 counsel, and deny Petitioner's motion for release from prison. (Doc. No. 30.) On February 4 28, 2011 and March 3, 2011, Petitioner filed objections to the magistrate judge's report and 5 recommendation. (Doc. Nos. 36, 42.) On February 17, 2011, Respondents filed a motion to 6 dismiss Petitioner's writ of habeas corpus. (Doc. No. 33.) On March 15, 2011, Petitioner filed 7 a response in opposition to Respondent's motion to dismiss. (Doc. No. 46.) 8 9 I. Preliminary Injunction 10 Petitioner seeks a preliminary injunction to enjoin all parole hearings. (Doc. Nos. 19, DISCUSSION

11 26.) "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed 12 on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, 13 that the balance of equities tips in his favor, and that an injunction is in the public interest." 14 Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374 (2008); Marlyn Nutraceuticals, 15 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 877 (9th Cir. 2009). Alternatively, a 16 plaintiff may be entitled to a preliminary injunction by establishing "the existence of serious 17 questions going to the merits and that the balance of hardships tips sharply in his favor." 18 Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 633 (9th Cir. 2007); see also 19 Aliance for the Wild Rockies v. Cottrell, 2011 U.S. App. LEXIS 1473, at *9-21 (9th Cir. Jan. 20 25, 2011). These alternative formulations "represent two points on a sliding scale in which the 21 required degree of irreparable harm increases as the probability of success decreases." Roe v. 22 Anderson, 134 F.3d 1400, 1402 (9th Cir. 1998); see Clear Channel Outdoor, Inc. v. City of Los 23 Angeles, 340 F.3d 810, 813 (9th Cir. 2003). Thus, if "the balance of harms tips decidedly 24 toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the 25 merits." State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie, 856 26 F.2d 1384, 1389 (9th Cir. 1988). If a plaintiff satisfies the above alternative balance test, he 27 must still satisfy the irreparable injury and public interest prongs of the Winters test. See 28 Alliance for Wild Rockies, 2011 U.S. App. LEXIS 1473, at *20-21.
-210-CV-2029

1

Petitioner seeks an injunction of all parole hearings. The Court denies his request.

2 Petitioner was given an opportunity to prepare for his parole hearings. For example, the 3 transcript from the June 10, 2009 parole hearing reflects that the hearing was continued to 4 allow Petitioner to obtain copies of police reports, to give Petitioner additional time to work 5 on his parole plans, and to give Petitioner additional time to remain disciplinary free. (June 6 10, 2009 Hearing Trans., attached to Doc. No. 19.) Therefore, Petitioner has failed to 7 demonstrate that he is likely to succeed on the merits or, alternatively, that there are serious 8 questions as to the merits. 9 Additionally, Petitioner seeks to enjoin all parole hearings because he alleges that the

10 Commissioners are biased. (Doc. No. 19.) Petitioner provides no evidence of actual bias 11 against the inmates by the Commissioners. Accordingly, Petitioner has failed to demonstrate 12 that he is likely to succeed on the merits or that he has raised serious questions going to the 13 merits. 14 Further, Petitioner seeks to enjoin all parole hearings because he alleges that the

15 California Department of Corrections and Rehabilitation ("CDCR") improperly classified him 16 when he arrived at the prison and neglected him. (Doc. No. 19.) Petitioner provides no valid 17 basis for an injunction on this ground, or any irreparable injury as a result. Accordingly, the 18 Court DENIES Petitioner's motion for preliminary injunction. 19 II. Summary Judgment 20 Petitioner moved for summary judgment shortly after filing his petition for writ of

21 habeas corpus. (Doc. Nos. 19, 26.) Summary judgment is proper if the moving party 22 demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a 23 matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, 24 under the governing substantive law, it could affect the outcome of the case. Anderson v. 25 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 26 1997). A dispute is genuine if a reasonable jury could return a verdict for the nonmoving 27 party. Anderson, 477 U.S. at 248. 28 / / / /
-310-CV-2029

1

A party seeking summary judgment always bears the initial burden of establishing the

2 absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can 3 satisfy this burden in two ways: (1) by presenting evidence that negates an essential element 4 of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to 5 establish an essential element of the nonmoving party's case on which the nonmoving party 6 bears the burden of proving at trial. Id. at 322-23. "Disputes over irrelevant or unnecessary 7 facts will not preclude a grant of summary judgment." T.W. Elec. Serv., Inc. v. Pacific Elec. 8 Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Once the moving party establishes the 9 absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth 10 facts showing that a genuine issue of material fact remains. Id. at 322. The nonmoving party 11 cannot oppose a properly supported summary judgment motion by "rest[ing] on mere 12 allegations or denials of his pleadings." Anderson, 477 U.S. at 256. "The `opponent must do 13 more than simply show that there is come metaphysical doubt as to the material fact.'" 14 Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 265-66 (9th Cir. 1991) (citing Matsushita Elec. 15 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 16 On December 17, 2010 and January 6, 2011, Petitioner filed motions for summary

17 judgment. (Doc. Nos. 19, 26.) When Petitioner filed his motions for summary judgment, the 18 time for Respondents to file a motion to dismiss or to answer had not passed. Respondents 19 have now filed a motion to dismiss Petitioner's writ for habeas corpus which raises valid 20 points. (See Doc. No. 33.) Because Respondents raise valid points in the motion to dismiss, 21 the Court DENIES Petitioner's motion for summary judgment. 22 III. Appointment of Counsel 23 Petitioner filed a motion for appointment of counsel. (Doc. No. 26.) The Sixth

24 Amendment right to counsel does not extend to federal habeas corpus actions by state 25 prisoners. Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 26 F.2d 479, 481 (9th Cir. 1958); Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 27 However, financially eligible habeas petitioners may obtain representation if the court 28 "determines that the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B); Terrovona
-410-CV-2029

1 v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990).

The interests of justice require

2 appointment of counsel when the court conducts an evidentiary hearing. Terrovona, 912 F.2d 3 at 1177; Knaubert, 791 F.2d at 728. The appointment of counsel is discretionary when no 4 evidentiary hearing is necessary. Terrovona, 912 F.2d at 1177; Knaubert, 791 F.2d at 728. 5 In the Ninth Circuit, "[i]ndigent state prisoners applying for habeas relief are not

6 entitled to appointed counsel unless the circumstances of a particular case indicate that 7 appointed counsel is necessary to prevent due process violations." Chaney, 801 F.2d at 1196; 8 Knaubert, 791 F.2d at 728-29. "To determine whether appointment of counsel is required for 9 habeas petitioners with nonfrivolous claims, a district court should consider the legal 10 complexity of the case, the factual complexity of the case, the petitioner's ability to investigate 11 and present his claim, and any other relevant factors." Abdullah v. Norris, 18 F.3d 571, 573 12 (8th Cir. 1994). 13 There is no indication that appointed counsel is necessary to prevent due process

14 violations. Chaney, 801 F.2d at 1196. It appears that Plaintiff has a sufficient grasp of his case 15 and the legal issues involved. Based on the Plaintiff's filings to date, the Court concludes that 16 he is able to adequately articulate his position. Accordingly, the Court DENIES without 17 prejudice Petitioner's motion for appointment of counsel. 18 IV. Motion to be Released from Prison 19 Petitioner seeks to be released from prison. (Doc. No. 26.) Because there is a valid

20 state judgment and the Court has not ruled on Petitioner's writ of habeas corpus, the Court 21 DENIES Petitioner's motion to be released from prison. 22 23 CONCLUSION For the foregoing reasons, the Court DENIES the Petitioner's motion for preliminary

24 injunction, DENIES Petitioner's motion for summary judgment, DENIES Petitioner's motion 25 for appointment of counsel, and DENIES Petitioner's motion to be released from prison. 26 IT IS SO ORDERED. __________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT
-510-CV-2029

27 DATED: March 25, 2011 28