Del Rio v. Paramo

Filing 13

ORDER Granting 12 Report and Recommendation and Granting Respondent's Motion to Dismiss Petition for Writ of Habeas corpus 8 . Signed by Judge Gonzalo P. Curiel on 2/22/18. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAMON DEL RIO,

Case No.: 3:17-cv-608-GPC-BGS
Petitioner,

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ORDER ADOPTING REPORT AND
RECOMMENDATION [Doc. No. 12]
AND GRANTING RESPONDENT’S
MOTION TO DISMISS PETITION
FOR WRIT OF HABEAS CORPUS
[Doc. No. 8]

v.
DANIEL PARAMO,
Respondent.

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BACKGROUND

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Ramon Del Rio, a state prisoner proceeding pro se, filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 on March 24, 2017. Doc. No. 1. Del Rio

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alleges that prison officials denied him due process by issuing him a Rules Violation Report

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(“RVR”) for not providing a urine sample for drug testing. Id. at 12. Del Rio asserts that

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the officers’ actions violated prison rules, and relatedly, his right to due process. Id. He

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explains that he could not provide a urine sample due to a medical condition. Id. As a

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remedy, Del Rio asks for expungement of the RVR and restoration of credits he lost as a

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result of the infraction. Id.

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On June 13, 2017, Respondent filed a motion to dismiss the petition. Doc. No. 8.

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Respondent argues that (1) Del Rio’s petition does not invoke federal habeas corpus
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jurisdiction, and (2) even if the Court were to construe the petition as a claim under 42

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U.S.C. § 1983, Del Rio fails to raise a substantial federal question. Id. at 2-8. With respect

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to the first ground, Respondent explains that Del Rio’s petition does not invoke federal

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habeas jurisdiction because the relief sought will not necessarily affect the duration of his

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confinement. Id. at 3-4. Del Rio filed a response in opposition to motion to dismiss on

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August 16, 2017. Doc. No. 11.

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On January 8, 2018, United States Magistrate Judge Bernard G. Skomal issued a

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report and recommendation (the “Report”) recommending this Court grant Respondent’s

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motion to dismiss. Doc. No. 12. Judge Skomal’s order instructed that objections to the

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Report must be filed by January 26, 2018. Id. at 9. Del Rio did not file any objections.

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After careful consideration of the pleadings and relevant exhibits submitted and for

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the reasons set forth below, this Court ADOPTS the Report and GRANTS Respondent’s

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motion to dismiss.

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DISCUSSION
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Legal Standard

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Federal Rules of Civil Procedure 72(b) and 28 U.S.C. § 636(b) set forth this Court’s

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duties in connection with a report from a Magistrate Judge. The Court “may accept, reject

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or modify, in whole or in part, the findings and recommendations made by the magistrate

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judge.” 28 U.S.C. § 636(b). This Court need not review de novo portions of the Report to

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which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir.

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2005). Because Del Rio filed no objections to the Report, this Court may assume the

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correctness of Judge Skomal’s findings of fact and decide the motion on the applicable

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law. Campbell v. U.S. Dist. Ct. for the N. Dist. Of Cal., 501 F.2d 196, 206 (9th Cir. 1974);

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Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001).

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II.

Analysis

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a. Habeas Jurisdiction

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Judge Skomal concluded that Del Rio cannot pursue his claims in a petition for a

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writ of habeas corpus. Doc. No. 12 at 6. A state prisoner cannot bring a habeas corpus
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action if his claim is not at “the core of habeas corpus.” Nettles v. Grounds, 830 F.3d 922,

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934 (9th Cir. 2016) (en banc) (quoting Preiser v. Rodriguez, 411 U.S. 475, 487 (1973)). A

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claim is at the core of habeas corpus if it “challenges the fact or duration of the conviction

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or sentence” and “necessarily lead[s] to immediate or earlier release for confinement.” Id.

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at 934-35 (emphasis added).

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Del Rio is confined as a result of a California criminal judgment. Doc. No. 1. Since

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Del Rio brought the instant action under a habeas corpus claim, his claim must be at “the

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core of habeas corpus.” Doc. No. 1; Nettles, 830 F.3d at 934. In California, a prisoner is

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eligible for release if he is found suitable for parole and he has reached the minimum

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eligible parole date (MEPD). Nettles, 830 F.3d at 925. Del Rio reached his MEPD in

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1984. Prior to receiving his RVR, Del Rio was denied parole. In reaching that decision,

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the parole board explained, inter alia, that Del Rio had not assumed full responsibility for

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his criminal conduct and that he had a “statistically high risk to reoffend in the free

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community.” Lodg. 9:3. These considerations demonstrate that expungement of Del Rio’s

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RVR will not “necessarily” result in his earlier release of confinement because a prison

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rule violation is only one of many factors the parole board must consider in making its

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determination. Nettles, 830 F.3d at 934-35 (“Because the parole board has the authority to

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deny parole on the basis of any of the grounds presently available to it, the presence of a

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disciplinary infraction does not compel the denial of parole, nor does an absence of an

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infraction compel the grant of parole.” (internal quotation marks and citation omitted)).

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Indeed, “the panel could deny parole to [Del Rio] even if he succeeded in expunging [his]

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violation report.” Id. at 935.

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Moreover, as Judge Skomal noted in the Report, because Del Rio’s MEPD has

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passed, a loss of credits due to the RVR will not lengthen his sentence. “These credits will

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not get [Del Rio] to his MEPD any faster because he reached it decades ago, and even if

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their restoration would have any impact on the outcome of his next parole hearing, it would

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be one among the many considerations before the Board noted above and not necessarily

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lead to an earlier release.” (Report, at 6.)
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The Court concludes that, because the relief Del Rio seeks would not necessarily

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have an impact on the duration of his confinement, his petition lies outside the “core of

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habeas corpus.” Del Rio must assert his claims regarding the alleged improper RVR, “if

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at all, under § 1983.” Nettles, 830 F.3d at 931 (internal quotation marks omitted).

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b. Conversion to § 1983

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“Although [Del Rio]’s claims are not cognizable in habeas, [the Court] must still

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consider whether” the petition can be construed “as pleading a cause of action under

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§ 1983,” which entails determining whether the petition is “amenable to conversion on its

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face.” Id. at 935–36. Judge Skomal found the Petition unamenable to conversion to a

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§ 1983 action, and this Court agrees.

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As Judge Skomal notes, not only is the petition not amenable on its face because it

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does not allege any personal action by Respondent, see Leer v. Murphy, 844 F.2d 628, 633

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(9th Cir. 1988) (“The inquiry into causation must be individualized and focus on the duties

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and responsibilities of each individual defendant whose acts or omissions are alleged to

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have caused a constitutional deprivation.”), but also conversion under these circumstances

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could negatively impact Del Rio. If the Court were to convert the petition into a § 1983

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action and dismiss it on the merits, that would count as a strike against Del Rio under the

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Prisoner Litigation Reform Act’s three-strikes rule. See 28 U.S.C. § 1915(g) (barring, with

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a limited exception, a prisoner from bringing a civil action “if the prisoner has, on 3 or

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more prior occasions, . . . brought an action . . . that was dismissed on the grounds that it is

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frivolous, malicious, or fails to state a claim upon which relief may be granted”). The

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Court agrees with Judge Skomal’s recommendation that the petition is unamenable to

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conversion to a § 1983 action.

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Having concluded that the petition is not amenable to a § 1983 action, the Court

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advises Petitioner that (1) the Court has not made a decision on the ultimate merit of

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his case, (2) Petitioner may refile this suit immediately under the proper legal label,

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subject to the normal rules (such as those prohibiting frivolous lawsuits), and (3) if

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Petitioner chooses to refile his suit under the proper legal label, certain consequences
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will probably result, including consideration of the claim on the merits, which might

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result in dismissal and a “strike” against Petitioner under 28 U.S.C. § 1915(g). See

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Glaus v. Anderson, 408 F.3d 382, 389–90 (7th Cir. 2005) (recommending that such

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warnings be given under these circumstances).

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CONCLUSION AND ORDER
For the reasons set forth above, IT IS HEREBY ORDERED:
1. The findings and conclusions of Judge Skomal presented in the Report (Doc. No.
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2. Respondent’s Motion to Dismiss (Doc. No. 8) is GRANTED;
3. The Petition for Writ of Habeas Corpus (Doc. No. 1) is DISMISSED WITH
PREJUDICE.

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Dated: February 22, 2018

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