Grandinetti v. Guilin et al

Filing 4

ORDER (1) DISMISSING ACTION; (2) DENYING TEMPORARY RESTRAINING ORDER; AND (3) DENYING CERTIFICATE OF APPEALABILITY re 1 . Signed by JUDGE J. MICHAEL SEABRIGHT on 7/22/13. (gls, )CERTIFICATE OF SERVICEParticipants r egistered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

FRANCIS GRANDINETTI, #A0185087,

)
)
)
Petitioner,
)
)
vs.
)
)
J. GUILIN, N. SAMBERG, P.
)
SELLS, CCA/SCC EMPLOYEES, )
)
Respondents.
)
_____________________________ )

CIV. NO. 13-00323 JMS/RLP
ORDER (1) DISMISSING ACTION;
(2) DENYING TEMPORARY
RESTRAINING ORDER; AND
(3) DENYING CERTIFICATE OF
APPEALABILITY

ORDER (1) DISMISSING ACTION; (2) DENYING TEMPORARY
RESTRAINING ORDER; AND (3) DENYING CERTIFICATE OF
APPEALABILITY
Francis Grandinetti, a Hawaii prisoner confined in the Saguaro
Correctional Center (“SCC”), located in Eloy, Arizona, seeks relief under 28
U.S.C. § 2241. See Pet., ECF No. 1 (“Federal Writ of Habeas Corpus Laws,
§ 2241, et seq.”). Grandinetti “pleads a habeas corpus case for disciplinary charges
of false medical injuries,” and seeks a “T.R.O. and Preliminary Injunction.” For
the following reasons, the Petition and action are DISMISSED. The request for a

temporary restraining order or preliminary injunction and a certificate of
appealability are also DENIED.
I. BACKGROUND
In its entirety, Grandinetti’s Petition states:
Comes Now the pro se Petitioner, Francis Grandinetti,
#A-0185087 Hawaii SID, on federal interstate detention
at a Hawaii-leased private prison in Arizona; and pleads a
habeas corpus case for disciplinary charges of false
medical injuries. Rule 12(b)(6).
The disciplinary report, sample sick-call proofs, and
relevant replies are attached. A T.R.O. is now applied for
under § 1915(g).
An M.D. report and police report must be done first; then
a misconduct may issue. The Respondents are civil
RICO violators also, under 18 U.S.C. § 1964(c).
Pet., ECF No. 1. Grandinetti attaches thirty-one pages of exhibits to the Petition.
These include progress reports prepared for an upcoming parole eligibility hearing,
a June 18, 2013 notice informing him that he is under investigation for sending the
SCC Medical Unit numerous frivolous medical requests, and twenty-four “sample”
medical requests that he has submitted in the past year to the SCC Medical Unit.
See Exs., ECF 1-1. Grandinetti claims that Respondents SCC Unit Manager J.
Guilin, SCC Supervisor N. Samberg, and “All CCA/SCC Employees Involved” are
“civil RICO violators under 18 U.S.C. § 1964(c).” Pet., ECF 1, 1.
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Grandinetti states that he gave the Petition to prison officials on June
20, 2013, for mailing to the court. See Mailing documentation, ECF No. 1-2.
Liberally construing the Petition in conjunction with his exhibits, it appears
Grandinetti challenges an ongoing prison investigation that may result in
unspecified sanctions, possibly delaying his eligibility for parole. See Pet., ECF
No. 1 (captioned as relating to “Parolee Hearings”).
II. SCREENING
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Courts (“Habeas Rules”) requires the court to make a preliminary review
of each petition for writ of habeas corpus. The court must summarily dismiss a
petition “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court.” Habeas Rule 4; O’Bremski
v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908
F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition (1) specify all
grounds for relief; (2) state the facts supporting each ground; and (3) state the relief
requested. Notice pleading is not sufficient. A petition must state facts that point
to a real possibility of constitutional error. Rule 4, Advisory Committee Notes
(1976); O’Bremski, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63,

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75 n.7 (1977)). Vague, conclusory, or palpably incredible allegations may be
summarily dismissed. Hendricks, 908 F.2d at 491.
A federal court may only grant a petition for writ of habeas corpus if
the petitioner is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2241(c)(1) & (3). A habeas corpus petition is
generally the correct method for a petitioner to challenge the legality or duration of
his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser
v. Rodriguez, 411 U.S. 475, 485 (1973)). In the context of parole, the Ninth
Circuit recognizes the possibility of habeas jurisdiction in suits that fall outside of
this “core” of habeas corpus. See Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989)
(reviewing (under § 2241) a disciplinary finding that, if expunged, was likely to
accelerate the petitioner’s eligibility for parole); Docken v. Chase, 393 F.3d 1024
(9th Cir. 2004) (determining that a claim challenging the constitutionality of the
frequency of parole reviews, where the prisoner was seeking only equitable relief,
was sufficiently related to the duration of confinement).
III. DISCUSSION
It is uncertain whether Grandinetti’s pleading actually seeks relief
under habeas corpus jurisdiction or whether he asserts a civil rights claim under 42
U.S.C. § 1983. In either case, he fails to comply with the procedural prerequisites
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to seeking relief in the federal court, warranting dismissal of this action without
prejudice but without leave to amend.
A.

Grandinetti May Not Proceed Under 28 U.S.C. § 2241
If the court accepts Grandinetti’s pleading at face value and reviews it

as setting forth a habeas claim, it is improperly brought under § 2241. Grandinetti
is a convicted Hawaii state prisoner serving his term of imprisonment in Arizona,
with an expected release date of January 25, 2031. See Exs., ECF No. 1-1, PageID
#2. The Ninth Circuit has instructed that “28 U.S.C. § 2254 is the exclusive
vehicle for a habeas petition by a state prisoner in custody pursuant to a state court
judgment, even when the petitioner is not challenging his underlying state court
conviction.” White v. Lambert, 370 F.3d 1002, 1009-10 (9th Cir. 2004), overruled
on other grounds by Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010).
Grandinetti may only challenge the execution of his sentence in federal court, if
that is his intent, with a habeas action under 28 U.S.C. § 2254. And construing the
Petition under § 2254, it is subject to dismissal.
1.

Payment and Form of the Petition
As an initial matter, Grandinetti has not paid the $5.00 filing fee or

moved to proceed in forma pauperis, although he refers to 28 U.S.C. § 1915(g) in
his Petition, apparently to show that he is in imminent danger of serious physical
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injury.1 See 28 U.S.C. § 1915. Section 1915(g)’s restrictions on proceeding in
forma pauperis do not apply to prisoners seeking habeas relief, however. See
Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Thus, whether Grandinetti
is in serious danger of imminent injury is immaterial to whether he qualifies for in
forma pauperis status in this putative habeas action. This action may not proceed
until Grandinetti pays the filing fee or shows that he is qualified to proceed in
forma pauperis.
Habeas Rules 2(c) and (d) require that a petition (1) specify all
grounds for relief; (2) state the facts supporting each ground; (3) state the relief
requested; (4) be signed under penalty of perjury by the petitioner or his authorized
representative; and (5) be legibly written or typewritten on forms substantially
approved by the court as appended to the Federal Rules of Civil Procedure. See
also Local Rule 99.7.10. The Petition does not clearly specify its grounds for
relief, the facts supporting those grounds, or the relief requested. Nor is it signed
under penalty of perjury or on a court-approved form. The court has notified
Grandinetti of these requirements many times before and has sent him copies of
1

Grandinetti has accrued three strikes under 28 U.S.C. § 1915(g), and has been notified
of these strikes numerous times. See e.g., Grandinetti v. FDC Seg. Unit Staff, 420 Fed. Appx.
576 (9th Cir. 2011); Grandinetti v. Shimoda, Civ. No. 05-00442 JMS; Grandinetti v. Stampfle,
Civ. No. 05-00692 HG. The court has also consistently notified him that he must submit an in
forma pauperis or the civil filing fee when he commences an action. See, e.g., Grandinetti v.
State, Civ. No. 13-00009 DKW.
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habeas and prisoner civil rights forms, which are also available at SCC. The
Petition is DISMISSED without prejudice on these bases.
2.

Jurisdiction
Grandinetti fails to name the state officer having immediate custody

of him as respondent, that is, the person “with the ability to produce the prisoner’s
body before the habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004); see
also Habeas Rule 2(a) of the Rules Governing § 2254 Cases. The correct
respondent is normally the warden of the facility in which the petitioner is
incarcerated, or the chief officer in charge of state penal institutions. Padilla, 542
U.S. at 447; Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992).
Grandinetti names the prison officials who are investigating his allegedly vexatious
filing of false medical requests to the SCC Medical Unit, but fails to name the
warden or state officer with authority to produce him in this court. Failure to name
the proper respondent deprives the court of jurisdiction. For these reasons, the
Petition is DISMISSED without prejudice.

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3.

Exhaustion
A federal habeas petitioner challenging a state court conviction or

sentence must first exhaust state judicial remedies. Granberry v. Greer, 481 U.S.
129, 133-34 (1987); see also 28 U.S.C. § 2254(b)(1)(A). To exhaust state judicial
remedies, a state prisoner must present the highest state court with jurisdiction over
the claims with a chance to rule on the merits of every issue raised in his or her
federal habeas petition. 28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133–34.
In Hawaii, a prisoner may challenge parole issues pursuant to Hawaii Rules of
Penal Procedure 40. Turner v. Haw. Paroling Auth., 93 Haw. 298, 308, 1 P.3d
768, 778 (Haw. App. 2000).
From the face of the Petition and its exhibits, it is clear that the
Petition is unexhausted. Grandinetti’s exhibits show that the disciplinary
investigation and report at issue began two days before he mailed his Petition to
this court. See Exs., ECF No. 1-1 PageID #4. The investigation was apparently
ongoing when he commenced this action. To the extent Grandinetti suggests that
sanctions may be imposed that may impact his ability to obtain parole, he does not
claim that he challenged the investigation through the prison’s review process or
thereafter in the state courts. He cannot have exhausted state court judicial
remedies in the two days between initiation of the investigation and the

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commencement of this suit and the Petition is clearly unexhausted. The Petition is
DISMISSED without prejudice on this ground.
4.

Standing
A federal court cannot consider the merits of a legal claim unless the

person invoking the court’s jurisdiction establishes the requisite standing to sue.
Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). “To establish standing, a
plaintiff must demonstrate (1) that he suffered an injury in fact, i.e., an invasion of
a legally protected interest that is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical; (2) that there is a causal connection
between the injury and the conditions complained of, such that the injury is fairly
traceable to the challenged act of the defendants; and (3) that the injury will likely
be redressed by a favorable decision.” Townley v. Miller, No. 12-16881, slip op. at
9, 2013 WL 3455671, at *2 (9th Cir. July 10, 2013) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992)).
“The party invoking federal jurisdiction bears the burden of
establishing these elements[;]” they “are not mere pleading requirements but rather
an indispensable part of a plaintiff’s case.” Lujan, 504 U.S. at 561 (“[E]ach
element must be supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

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required at the successive stages of the litigation.”); Lopez v. Candaele, 630 F.3d
775, 785 (9th Cir. 2010) (articulating “clear showing” as the burden of proving
standing at the preliminary injunction stage). “At the pleading stage, general
factual allegations of injury resulting from the defendant’s conduct may suffice.”
Lujan, 504 U.S. at 561; see also Churchill Cnty. v. Babbitt, 150 F.3d 1072, 1077
(9th Cir. 1998).
“Standing, unlike other jurisdictional doctrines, focuses on the party
seeking to get his complaint before a federal court and not on the issues he wishes
to have adjudicated.” Lujan, 504 U.S. at 561 (quoting Simon v. Eastern Ky.
Welfare Rights Org., 426 U.S. 26, 38 (1976)). A court may not create its own
jurisdiction by embellishing otherwise deficient allegations of standing. Whitmore,
495 U.S. at 155-56; Schmier v. U.S. Court of Appeals for Ninth Circuit, 279 F.3d
817, 821 (9th Cir. 2002).
Liberally construed, the Petition suggests that if Grandinetti is
sanctioned based on the results of the investigation in question, this sanction may
result in the delay or denial of parole at an unidentified future parole hearing.2 See
generally Pet., ECF No. 1; Exs. ECF 1-1, PageID #2-4 (Parole progress report).

2

Grandinetti does not claim that the investigation violated his rights to due process or
suggest what process he is entitled to before he may be investigated for wrongdoing at the prison
beyond the notice he received.
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When a successful challenge to a disciplinary hearing or administrative sanction
will not necessarily shorten the overall length of confinement, habeas jurisdiction
is lacking. Ramirez v. Galaza, 334 F.3d 850, 852, 858 (9th Cir. 2003) (finding that
relief pursuant to § 1983 remains an appropriate remedy); Docken, 393 F.3d at
1030. And speculative challenges to disciplinary decisions that may affect future
parole determinations fall outside the scope of habeas jurisdiction. See Ramirez,
334 F.3d at 859 (stating that claims challenging procedures used during
disciplinary hearings are properly brought in a civil rights action, because
expungement of disciplinary finding was not likely to accelerate prisoner’s
eligibility for parole).
The challenged investigation has just begun and Grandinetti has not
yet suffered a sanction. There is no indication that a disciplinary sanction will
have an impact on a future parole hearing decision. Grandinetti’s claims are
completely speculative and hypothetical, because his sentence and parole eligibility
remain unchanged and he has suffered no injury in fact.3 Grandinetti fails to show
an actual imminent injury to any parole decision that may be forthcoming.
Further, Grandinetti cannot show that the possible future denial of
parole is fairly traceable to the putative disciplinary sanction or that it can be
3

Grandinetti’s exhibits show that he is eligible for a parole hearing sometime in July
2013, and that his expected release date is January 25, 2031. See Exs., ECF No. 1-1 PageID #2.
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redressed by a favorable decision of this court. That is, even if the investigation
has concluded since Grandinetti commenced this action, and he has been
sanctioned, he fails to state a cognizable claim for habeas relief. “There is no right
under the Federal Constitution to be conditionally released before the expiration of
a valid sentence, and the States are under no duty to offer parole to their prisoners.”
Swarthout v. Cooke, --- U.S. ---, 131 S. Ct. 859, 862 (2011) (per curiam);
Greenholtz v. Nebraska, 442 U.S. 1, 7 (1979). Although state law “may create
liberty interests in parole release that are entitled to protection under the Due
Process Clause[,]” Bd. of Pardons v. Allen, 482 U.S. 369, 371 (1987) (citations
omitted), Hawaii’s parole statutes do not create such a liberty interest in parole.
See, e.g., Mujahid v. Apao, 795 F. Supp. 1020, 1024 (D. Haw. 1992); Regan v.
Hawaii, 2007 WL 4440956, at *2 (D. Haw. Dec. 19, 2007). Other than his
conclusory allegations, Grandinetti fails to explain how an adverse disciplinary
finding impacts his eligibility for parole. Because Grandinetti lacks standing to
proceed with this claim, the Petition must be DISMISSED without prejudice.

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B.

Review Under 42 U.S.C. § 1983
Based on Grandinetti’s references to § 1915(g), and the general thrust

of his claims, it appears that he labeled his pleading as seeking habeas relief simply
to avoid the penalties imposed by § 1915(g). See Andrews, 398 F.3d at 1123 n.12
(recognizing that some habeas petitions are civil rights actions mislabeled as
habeas petitions to avoid § 1915(g)’s penalties, and stating, “[i]n such cases, the
district court may determine that the dismissal of the habeas petition does in fact
count as a strike for purposes of § 1915(g)”). This is bolstered by the fact that
Grandinetti recently filed a civil rights action in the United States District Court for
the District of Arizona complaining of the same events and submitting at least one
of the same exhibits in support of his claim that he is being unfairly investigated or
charged with filing false medical claims to the SCC medical unit. See Grandinetti
v. Fuller, Civ. No. 2:13-01365 PGR (D. Ariz. Jul. 8, 2013).
As noted above, Grandinetti has accrued more than three strikes under
28 U.S.C. § 1915(g) and may not proceed in forma pauperis with a civil rights
action unless he shows imminent danger of serious physical injury. Grandinetti’s
claims here do not meet this standard, and he may not proceed without prepayment
of the filing fee. See 28 U.S.C. § 1915(g). If Grandinetti’s true intent is to
challenge disciplinary proceedings under § 1983, this action is DISMISSED

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without prejudice to refiling his claims, in the District of Arizona where venue is
proper, see 28 U.S.C. § 1391(b), with concurrent payment of the civil filing fee.
IV. LEAVE TO AMEND IS DENIED
The court is aware of its duty to construe pro se pleadings liberally, in
the light most favorable to the plaintiff, and accept all allegations of material fact
as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Hebbe v.
Pliler, 611 F.3d 1202, 1205 (9th Cir. 2010). Leave to amend should be granted
unless it appears that amendment is futile. Lopez v. Smith, 203 F.3d 1122, 1130
(9th Cir. 2000). Amendment is clearly futile here.
V. MOTION FOR TEMPORARY RESTRAINING ORDER
A plaintiff seeking a temporary restraining order “must establish that
he is likely to succeed on the merits, that he is likely to suffer irreparable harm in
the absence of preliminary relief, that the balance of equities tips in his favor, and
that an injunction is in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008) (citation omitted); accord Sierra Forest Legacy v. Rey,
577 F.3d 1015, 1021 (9th Cir. 2009). Grandinetti fails to establish the likelihood
of success on his claims, irreparable harm in the absence of relief, or that the
equities tip in his favor. The Motion for Temporary Restraining Order is DENIED.

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VI. CERTIFICATE OF APPEALABILITY
“Jurists of reason” would not find this court’s determination that the
Petition fails to state a valid claim of the denial of a constitutional right or that the
procedural ruling was correct. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
A certificate of appealability is DENIED.
VII. CONCLUSION
For the foregoing reasons, the Petition and action are DISMISSED
without prejudice but without leave to amend in this court. The Motion for
Temporary Restraining Order is DENIED. A certificate of appealability is
DENIED. The Clerk of Court is instructed to terminate this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 22, 2013.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Grandinetti v. Guilan, et al., 1:13-cv-00323 JMS/RLP; G:\docs\prose attys\Habeas\DMP\2013\2241 & 2255\Grandinetti 13-323
jms #2 (standing, FTSC).wpd

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