Wise v. Gore et al
Filing
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ORDER Granting 17 Motion to Dismiss; Dismissing the Petition; Denying Motion for Summary Judgment; Denying Certificate of Appealability. Any amended petition for writ of habeas corpus must be filed by November 21, 2016. Signed by Magistrate Judge Jill L. Burkhardt on 11/7/2016. (All non-registered users served via U.S. Mail Service)(knb)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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David Wise,
Case No.: 16-cv-00677-JLB
Petitioner,
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v.
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ORDER GRANTING MOTION TO
DISMISS; DISMISSING THE
PETITION; DENYING MOTION
FOR SUMMARY JUDGMENT;
DENYING CERTIFICATE OF
APPEALABILITY
Sheriff Gore, et al.,
Respondent.
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[ECF Nos. 9, 17]
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INTRODUCTION
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Upon consent of the parties, this case was referred to United States Magistrate Judge
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Jill L. Burkhardt to conduct all proceedings and order entry of final judgment in accordance
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with 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
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On April 11, 2016, David Wise (“Petitioner”), proceeding pro se, filed his first
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amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). On
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May 10, 2016, the assigned magistrate judge issued a scheduling order, setting July 15,
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2016 as the deadline for Respondent to file any motion to dismiss. (ECF No. 6.) On May
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12, 2016, Petitioner filed an ex parte motion for summary judgment, seeking an order
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allowing for Petitioner’s release from San Diego County Jail prior to his scheduled release
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date of June 3, 2016. (ECF No. 9.) However, Petitioner is no longer incarcerated as
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reflected in the notice of change of address he filed with the district court on June 13, 2016.
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(ECF No. 10.)
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On July 8, 2016, the Court issued a revised scheduling order that extended the
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deadline for Respondent to file any motion to dismiss to August 15, 2016. (ECF No. 16.)
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Respondent timely filed a motion to dismiss the Petition. (ECF No. 17.) The deadline for
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Petitioner to respond in opposition to the motion to dismiss was September 14, 2016. (ECF
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No. 16.) Petitioner did not file a response to Respondent’s motion.
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After a careful review of the parties’ submissions, and for reasons set forth below,
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this Court GRANTS Respondent’s motion to dismiss, DISMISSES the Petition without
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prejudice, DENIES as moot Plaintiff’s motion for summary judgment, and DENIES a
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certificate of appealability.
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BACKGROUND
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Petitioner and his wife were jointly prosecuted for a number of white collar crimes.
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Ultimately, both entered guilty pleas pursuant to negotiated plea agreements. Petitioner
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was sentenced to a prison term of almost eight years, but he was permitted to serve that
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term in local custody in the county jail. He completed that sentence some time ago, and
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thus, is no longer subject to loss of liberty as a result of this judgment.
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Petitioner now seeks federal habeas corpus relief, but he expressly makes no
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challenge to his convictions. Instead, he complains that, as a jail prisoner, he was treated
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less favorably than other prisoners committed to serve their time in state prisons. In
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general, he complains that: (1) prison detainees were eligible for more credits against their
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sentences, so that a prisoner in prison might complete his sentence before those, like
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Petitioner, who served their time in county jail; (2) prison detainees enjoyed some better
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quality-of-life conditions, such as allegedly better medical and dental care; and (3) those
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in state prison could qualify for alternative confinement programs that were not available
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to jail prisoners. Petitioner contends that these disparities violate his rights to equal
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protection of the laws or constitute cruel and unusual punishment.
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ANALYSIS
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Respondent’s motion to dismiss (ECF No. 17) is GRANTED because the Court
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construes Petitioner David Wise’s failure to file an opposition in response to the motion as
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constituting consent to the granting of the motion to dismiss under Civil Local Rule
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7.1.f.3.c and because none of the claims are cognizable in a federal habeas corpus petition.
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Petitioner was ordered to and failed to file an opposition to Respondent’s motion to
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dismiss. (ECF No. 16.) Pursuant to the Court’s July 8, 2016 scheduling order, the deadline
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for Petitioner to file his opposition to the motion was September 14, 2016. (Id.) In that
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same scheduling order, the Court warned Petitioner that “Pursuant to Civil Local Rule
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7.1.f.3.c, if an opposing party fails to file opposition papers in the time and manner
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required by the Court, that failure may constitute a consent to the granting of the
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motion to dismiss. (Id. (emphasis in original).) To date, Petitioner has not submitted an
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opposition brief to Respondent’s motion to dismiss, nor has he requested an extension of
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time in which to do so.
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District courts have broad discretion to enact and apply local rules, including
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dismissal of a case for failure to comply with the local rules. See generally Ghazali v.
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Moran, 46 F.3d 52, 53 (9th Cir. 1995) (affirming grant of an unopposed motion to dismiss
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under local rule by deeming a pro se litigant’s failure to oppose as consent to granting the
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motion); Cano v. Hughes, No. 13cv2335 H WVG, 2015 WL 2365687, at *4 (S.D. Cal.
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May 18, 2015) (same). Before dismissing an action for failure to comply with local rules,
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district courts “weigh several factors: ‘(1) the public’s interest in expeditious resolution of
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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
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defendants; (4) the public policy favoring disposition of cases of their merits; and (5) the
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availability of less drastic sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v.
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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). That a plaintiff is proceeding pro se does
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not excuse his failure to follow the rules of procedure that govern other litigants. King v.
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Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of
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procedure that govern other litigants.”).
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Here, Respondent attached a proof of service to its motion to dismiss, signaling that
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Petitioner was served by First-Class Mail with the motion at his address of record on or
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about August 15, 2016. (ECF No. 17 at 3.) Petitioner, who is not incarcerated, was
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provided adequate time to prepare a response. More than six weeks have passed since
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Petitioner’s September 14, 2016 deadline to oppose the motion to dismiss and still
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Petitioner has not filed an opposition. Thus, the Court finds that “the public’s interest in
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expeditious resolution of litigation,” “the court’s need to manage its docket,” and “the risk
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of prejudice to the defendant” all weigh in favor of granting the motion to dismiss. See
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Ghazali, 46 F.3d at 53. Accordingly, the majority of the Ghazali factors weigh in favor of
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dismissal.
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The “availability of less drastic sanctions” also weighs in favor of dismissal because
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Respondent has shown that none of Petitioner’s claims are cognizable in this federal habeas
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corpus case. (See ECF No. 17.) In the operative petition, Petitioner raises certain claims
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relating to the conditions of confinement during the time period in which he was
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incarcerated. Such claims must be brought exclusively in an action under 42 U.S.C. § 1983
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pursuant to the Ninth Circuit’s recent decision in Nettles v. Grounds.1 Nettles, 830 F.3d
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922, 927 (9th Cir. 2016).
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eligibility for an alternative custody program and conduct credits towards completion of
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his sentence. He expressly pleads, “I’m not challenging my conviction.” (ECF No. 4.)
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Because Petitioner already completed his sentence, these claims concerning his sentence
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are moot.
Petitioner’s remaining claims challenge only Petitioner’s
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Petitioner bears the burden to demonstrate some remaining consequence that permits
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this action to continue2 and he has failed to do so. In fact, there is nothing in the record to
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The Court notes that the Petition is not amenable to a simple conversion from a § 2254 habeas corpus
petition to a civil rights claim under § 1983 because, as discussed herein, some of Petitioner’s claims—
those addressing conduct credits—appear to fall within the habeas core, such that those claims could not
be part of a § 1983 action. See Nettles, 830 F.3d at 936.
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See United States v. Hardy, 545 F.3d 280, 284 (4th Cir. 2008) (absent a presumption of collateral
consequences, the prisoner bears the burden of demonstrating collateral consequences sufficient to meet
Article III’s case-or-controversy requirement); DeFoy v. McCullough, 393 F.3d 439, 442 n.3 (3d Cir.
2005) (“It is a petitioner’s burden to demonstrate that collateral consequences exist to avoid having a
case dismissed as moot.”); United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999) (“The petitioner has
the burden to establish [some concrete and continuing] injury, and if he fails to satisfy his burden we
must dismiss for lack of jurisdiction.”).
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show that some remaining consequence exists with respect to Petitioner’s completed
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sentence to satisfy the case-or-controversy requirement of Article III, § 2 of the United
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States Constitution. Therefore, each of the Ghazali factors weighs in favor of granting of
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the motion to dismiss under Civil Local Rule 7.1.f.3.c.
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Dismissal is also appropriate because, as explained in the Court’s analysis above of
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the last Ghazali factor, Respondent has met its burden to show that none of Petitioner’s
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claims are cognizable in a federal habeas corpus petition. Petitioner challenges the
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conditions of his confinement and his eligibility for a reduction or alternative program to
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in his now completed sentence. Petitioner’s conditions of confinement claims must be
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brought in an action under 42 U.S.C. § 1983. Nettles, 830 F.3d at 927. And Petitioner’s
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eligibility claims concerning his sentence are moot. Therefore, Respondent’s motion to
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dismiss is GRANTED.
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CERTIFICATE OF APPEALABILITY
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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 cases, a district
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court “must issue or deny a certificate of appealability when it enters a final order adverse
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to the applicant.” A state prisoner may not appeal the denial of a Section 2254 habeas
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petition unless he obtains a certificate of appealability from a district or circuit judge.
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28 U.S.C. § 2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th
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Cir. 1997) (holding that district courts retain authority to issue certificates of appealability
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under AEDPA). A certificate of appealability may issue “only if the applicant has made a
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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). It must
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appear that reasonable jurists could find the district court’s assessment of the petitioner’s
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constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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The Court concludes that jurists of reason could not find it debatable whether this Court
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was correct in dismissing the Petition. The Court denies a certificate of appealability.
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CONCLUSION
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For the reasons set forth above, IT IS HEREBY ORDERED that:
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Respondent’s motion to dismiss (ECF No. 17) is GRANTED, and the Petition
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(ECF No. 4) is hereby DISMISSED WITHOUT PREJUDICE to filing an amended
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petition for writ of habeas corpus in this case and/or filing a separate action pursuant to 42
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U.S.C. § 1983 concerning the conditions of confinement claims. Any amended petition
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for writ of habeas corpus must be filed by November 21, 2016;
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Petitioner’s Ex Parte Motion for Summary Judgment and Order to Show
Cause (ECF No. 9) is DENIED WITHOUT PREJUDICE as moot;3
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Petitioner is DENIED a certificate of appealability; and
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4.
The Clerk of Court is directed to close this case.
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IT IS SO ORDERED.
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Dated: November 7, 2016
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The motion (seeking early release) is moot as Petitioner is no longer in custody and as the Petition fails
to state a cognizable federal habeas corpus claim.
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