Cruz-Gonzalez v. Negron-Fernandez et al
Filing
18
OPINION AND ORDER granting 12 Motion to Dismiss for Lack of Jurisdiction; granting 12 Motion to Dismiss for Failure to State a Claim. See Opinion and Order for further details. Judgment to be entered. IT IS SO ORDERED. Signed by Judge Daniel R. Dominguez on 3/31/2015. (JAM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
*
*
*
*
v.
*
*
*
JOSE NEGRON-FERNANDEZ, et., al.,
*
Respondents.
*
__________________________________________*
JOSE A. CRUZ-GONZALEZ,
Petitioner,
CIVIL NO. 14-1024(DRD)
OPINION & ORDER
Before the Court is Petitioner Jose A. Cruz-Gonzalez’s
(herein after “Petitioner” or “Cruz-Gonzalez”) complaint
under 42 U.S.C. Sec. 1983 filed on January 9, 2014,(D.E.
#2)1 . On April 29, 2014, Respondents filed a Motion to
Dismiss Habeas for Lack of Jurisdiction and Failure to
State a Claim (D.E. #12).
May 16, 2014, Petitioner filed
a Response to the Motion to Dismiss (D.E. #15). For the
reasons discussed below, the Court finds the Petitioner’s
complaint under 42 U.S.C. Sec. 1983 shall be DISMISSED.
INTRODUCTION
Petitioner
presently
Jose
confined
A.
in
Cruz-Gonzalez
a
penal
a
state
institution
prisoner
of
the
Commonwealth of Puerto Rico, has filed a pro se complaint
for alleged violations to his Rights pursuant to 42, U.S.C.
Sec. 1983 (D.E. #2).
before
1
federal
court
Petitioner filed this complaint
alleging
that
the
Department
D.E. is an abbreviation of docket entry number.
of
Civil No. 14-1024(DRD)
Page 2
Correction and Rehabilitation (DCR)erred in not applying
the bonuses as established by Puerto Rico Law 116 of June
22, 1974 as amended.
Cruz-Gonzalez alleges that said
bonuses are applicable to his previously imposed sentence
of ninety nine (99) years, and by not having them applied
Petitioner is being deprived of a reduction in his term of
incarceration (D.E. #2).
FACTUAL AND PROCEDURAL BACKGROUND
On May 30, 1989, Cruz-Gonzalez was sentenced to a fixed
term of imprisonment of ninety nine (99) years2.
The
sentenced imposed by the Superior Court of Arecibo was a
result of Petitioner’s conviction of first degree murder
(D.E. #16-1).
Cruz-Gonzalez was sentence in accordance
with the Puerto Rico Penal Code of 1974 and Law 116 of June
22, 19743 (D.E. #16-1).
Petitioner’s sentence was done
before Law No. 116 was amended in order for it to be in
agreement with the new Penal Code of 2004 which included
the adoption of a new bonus system that would benefit the
correctional
population
who
were
at
the
time
serving
sentenced under different penal codes and laws, (D.E. 16-1
at p. 2).
On January 2, 2013, Cruz-Gonzalez requested that the
2
The Court notes that all background information has been
taken from the opinion issued by the Puerto Rico Court of Appeals
in Cruz-Gonzalez v. Administration of Correction, Case No. 7-94892,
KLRA 2001300167, of June 28, 2013, included in this case docket as
docket entry 16-1.
3
At the time of sentencing, this was the applicable code.
Civil No. 14-1024(DRD)
Page 3
Department of Correction and Rehabilitation, by way of
administrative remedy F1-01-13,”the bonus specified in law
44 of 2009 be applied to the sentence minimum” (D.E. 16-1
at p. 2).
On January 28, 2013, the Administrative Remedies
Division issued an answer in which it stated that the
“calculation of his (Petitioner’s) sentence is in agreement
with the established laws and/or regulations” (D.E. 16-1 at
p.2).
On February 5, 2013, Cruz-Gonzalez requested from the
Regional
Coordinator
of
the
Administrative
Remedies
Division, reconsideration of said answer. Petitioner based
said reconsideration on the fact that the bonuses were
applied to the ninety nine (99) years sentence of another
inmate Wilfredo Sanchez-Rodriguez. Petitioner alleged that
Sanchez-Rodriguez received said bonuses in accordance with
Law 44-2009.
Cruz-Gonzalez argued that all inmates who
were sentenced before July 20, 1989, to a term of ninety
nine (99) years of incarceration were eligible to receive
the bonuses.
This would include Petitioner.
The Regional
Coordinator denied the motion for reconsideration based on
the same grounds as those expressed by the Administrative
Remedies Division (D.E. 16-1 at p.3).
Cruz-Gonzalez proceeded to file a judicial review to
the Puerto Rico Court of Appeals, requesting that the court
reverse the Resolution of January 28, 2013, issued by the
Administrative Remedies Coordinator in which his request
for application of bonuses was denied.
Cruz-Gonzalez
Civil No. 14-1024(DRD)
Page 4
argued that the DCR erred in failing to apply the bonuses
to which he had a right to the “minimum” of his sentence
amounting to ninety nine (99) years.
Petitioner alleged
that the DCR interpreted the law incorrectly (D.E. 16-1 at
p. 3).
On June 23, 2013, The Puerto Rico Court of Appeals,
issued it ruling that “the Department of Correction and
Rehabilitation has not erred when calculating the bonuses
nor has the Regional Coordinator erred by affirming the
answer stating no” (D.E. 16-1 at p. 13).
Not satisfied,
Petitioner filed a Petition for Certiorari before the
Supreme Court of Puerto Rico (D.E. 12-2).
While said
Petition for Certiorari was pending Cruz-Gonzalez proceeded
to file on January 9, 2014, the 1983 complaint currently
pending before this Court (D.E. 2).
In the complaint before this Court Petitioner does not
raise any new or additional arguments than those raised at
the state court level, he merely reinstates what he has
been stating since his first administrative filing.
That
is, that he is entitled to the application of bonuses to
his fixed sentence of ninety nine (99) years.
Petitioner
request that this Court order the DCR to apply said bonuses
to his sentence and send Petitioner before the parole board
so he may be evaluated to complete his sentence in the free
Civil No. 14-1024(DRD)
Page 5
community 4.
DISCUSSION
Standard
of
Claims
under
42,
United
States
Code,
Section 1983.
In order to have a valid claim pursuant to 42, United
States Code, Section 1983, three elements must be alleged
by plaintiff before said claim is cognizable. (1) Plaintiff
must allege that the conduct complained about was committed
by a person acting “under color of state law;”5 (2) that the
conduct
in
question
“deprived
plaintiff
of
rights,
privileges or immunities secured by the Constitution or
laws of the United States”;6 (3) finally, there has to be
a showing of a casual connection between the specific
defendants and the plaintiff’s federal rights deprivation.
This may consist of direct acts by the defendant, certain
acts
performed
consent.
at
defendant’s
direction,
knowledge
or
Each defendant individually responds for his own
acts and omission in light of his own duties.7
To prevail in a section 1983 claim, Plaintiff “must
allege facts sufficient to support a determination (I) that
4
Cruz-Gonzalez also request an unspecified amount of monetary
compensation as damages caused by DCR non application of the
bonuses to his sentence.
5
See Gomez v. Toledo, 446 US 635 (1980).
6
See Parrat v. Taylor, 451 US 527 (1981).
7
Coon v. Ledbetter, 780 F.2d 1158 (5th Cir 1986); Rizzo v.
Goode, 423 U.S. 363, (1976).
Civil No. 14-1024(DRD)
Page 6
the conduct complained of has been committed under color of
state law and (ii) that alleged conduct caused a denial of
rights secured by the Constitution or laws of the United
States.” Romero-Barceló v. Hernández-Agosto, 75 F.3d 23, 32
(1st Cir. 1996).
As an additional corollary, only those
individuals who participated in the conduct that deprived
the plaintiff of his rights can be held liable.
Febus-
Rodríguez v. Betancourt-Lebrón, 14 F.3d 87, 91-92 (1st Cir.
1994).
The
elements.
second
prong
of
section
1983
itself
has
two
The first element requires that there was,
indeed, a deprivation of rights, privileges or immunities
secured by the United States Constitution or laws.
Votour
v. Vitale, 761 F.2d at 819.
The second element of the second prong, the causation
element, has three components. First, plaintiff must show,
that each of the acts or omissions done by each defendant
caused the deprivation of the rights at issue.
Gutierrez-
Rodríguez v. Cartagena, 882 F.2d 553, 562 (1st Cir. 1989);
Figueroa v. Aponte-Roque, 864 F.2d 947, 953 (1st Cir. 1989).
Second plaintiff must show, that the defendants’ conduct or
lack thereof was intentional, grossly negligent, or must
have amounted to a reckless or callous indifference to the
constitutional rights of others.
Velázquez-Martínez v.
Colón, 961 F. Supp. 362(D.P.R. 1997).
Lastly, plaintiff
must show an “affirmative link between the street-level
misconduct and the action or lack thereof, of supervisory
Civil No. 14-1024(DRD)
Page 7
officials. Gutierrez-Rodríguez, 882 F.2d at 562.
In the case at hand, Cruz-Gonzalez is claiming a
violations of his civil rights pursuant to section 1983
based on alleged error by the DCR in not applying bonuses
to his ninety nine (99) year sentenced which in turn does
not permit him to appear before the parole board.
The
problem is that Plaintiff’s can not use the mechanism of a
1983
civil
right
claim
reduction in sentence.
to
request
what
amounts
to
a
What this Court has before it is an
improperly filed writ for habeas relief under 28 U.S.C.
Sec. 2254. This matter and how best to deal with it has
been amply discussed by the Supreme Court.
Section 1983 v. Habeas Corpus
As stated by the Supreme Court, this case lies at the
intersection of the two most fertile sources of federalcourt prisoner litigation-the Civil Rights Act of 1871 Rev.
Stat. Sec. 1979, as amended, 42 U.S.C. 1983, and the
federal habeas corpus statute, 28 U.S.C. 2254.
Both of
these provide access to a federal forum for claims of
unconstitutional treatment at the hands of state officials,
but they differ in their scope and operation, Heck v.
Humprey 512 U.S. 477 at 480 (1994).
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the
Supreme Court considered the potential overlap of these two
provisions and held that habeas corpus is the exclusive
remedy for a state prisoner who challenges the fact or
duration of his confinement and seeks immediate or speedier
Civil No. 14-1024(DRD)
Page 8
release, even though such a claim may come within the
literal term of Section 1983, (Heck at 481 citing Preiser
at 488-490).
This
Court
is
then
faced
with
the
preliminary
determination as to whether Cruz-Gonzalez’s claim is an
actual tort claim thus a Section 1983 proceeding or a
request for altering his time of confinement thus a habeas
request pursuant to Section 2254.
Petitioner’s sole allegation is that the DCR’s failure
to apply the bonus system to his sentence resulted in his
having to continue to serve his ninety nine (99) year
sentence without the benefit of a reduction in his time of
incarceration. There is no doubt that Petitioner is solely
challenging the duration of his sentence and as such his
claim is a habeas request for relief pursuant to section
22548.
A state prisoner’s challenge to the fact or duration of
his
confinement,
based,
as
here,
upon
the
alleged
unconstitutional state administrative action, is just as
close to the core of habeas corpus as an attack on the
8
In Preiser the Supreme Court clearly established that a
inmates alleging the depravation of their good conduct time credits
was causing or would cause them to be in illegal physical
confinement has a habeas 2254 claim, Preiser at 487. “Even if the
restoration of the respondents’ credits would not have resulted in
their immediate release, but only in shortening the length of their
actual confinement in prison, habeas corpus would have been their
appropriate remedy habeas corpus relief is not limited to immediate
release from illegal custody, but that the writ is available as
well to attack future confinement and obtain future releases.” Id.
at 487.
Civil No. 14-1024(DRD)
prisoner’s
Page 9
conviction,
for
it
goes
directly
to
the
constitutionality of his physical confinement itself and
seeks either immediate release from confinement or the
shortening of its duration (See: Preiser at 489).
Section 1983 must yield to the federal habeas statute
where an inmate seeks injunctive relief challenging the
fact of his conviction or the duration of his sentence.
Such claims fall within the core of habeas.
By contrast,
constitutional claims challenging confinement conditions
fall outside of that core and may be brought under Section
1983 in the first instance, Nelson v. Campbell, 541 U.S.
637 (2004).
This
Court
is
aware
that
along
with
Petitioner’s
request for an application of bonus to his sentence which
would
result
in
a
claimed damages.
lower
sentence,
Cruz-Gonzalez
also
However, the fact that Plaintiff is
requesting damages does not change what is really a habeas
petition into a tort action.
Although damages are not an
available remedy, in habeas petitions the Supreme Court has
concluded that a Section 1983 suit for damages that would
“necessarily
imply”
the
invalidity
of
the
fact
of
an
inmate’s conviction, or “necessarily imply” the invalidity
of the length of an inmate’s sentence, is not cognizable
under Section 1983 unless and until the inmate obtains
favorable
termination
of
a
state
or
federal
habeas
challenge to his conviction or sentence, Heck at 487.
is the case of Cruz-Gonzalez.
Such
Civil No. 14-1024(DRD)
Page 10
Having established that what is before this Court is a
request for habeas relief pursuant to Section 2254 and not
a complaint for civil rights violation pursuant to Section
1983, this Cout is faced with the ever present exhaustion
of state remedies requirement.
STANDARD OF REVIEW
Rule 12(b)(1) of the Federal Rules of Civil Procedure
allows a defendant to assert the defense of failure to
state a claim upon which relief can be granted, before
pleading, if a responsive pleading is allowed.
This is
precisely what has been alleged by Respondents (D.E. #12).
However, under Section 12 (b)(2) "a complaint should
not be dismissed for failure to state a claim unless it
appears ... that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief."
See Bell Atlantic Corp. v. Twonbly, 127 S. Ct. 1955 (2007)
Pursuant to federal law, a prisoner who claims is being
held
by
the
state
government
in
violation
of
the
Constitution, or laws of the United States may file a civil
law suit in federal court seeking a writ of habeas corpus
pursuant to 28 U.S.C. Sec. 2254.
A federal court’s review of a 28 U.S.C. Sec. 2254
petition
decision.
is
not
a
direct
review
of
a
state
court’s
The petition is a separate civil suit considered
a collateral relief.
The federal habeas corpus is not a
constitutional, but rather a statutory relief codified in
28 U.S.C. Sec. 2254.
Civil No. 14-1024(DRD)
Page 11
Prisoners in state custody who choose to collaterally
challenge in a federal habeas proceeding their confinement
are required to comply with the “independent and adequate
state ground doctrine”.
This doctrine “applies to bar
federal habeas when a state court declined to address a
prisoner’s federal claims because the prisoner has failed
to meet a state procedure requirement.”
See Yeboah-Sefah
v. Ficco 556 F.3d 53, 74-75(1st Cir.2009) (“failure to raise
the claim in prior state proceeding barred the claim in
federal court”) citing Coleman v. Thompson, 501 U.S. 722,
730-31 (1991).
As such Petitioner must meet two initial
requirement.
First petitioner is required to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings.
The highest state court available must have
a fair opportunity to rule on the merits of each and every
claim which petitioner seeks to raise in federal court.
order
to
fulfill
this
exhaustion
requirement,
In
the
petitioner must have fairly presented the substance of all
of his federal constitutional claims to the highest state
court.
Levine v. Commissioner of Correctional Servs., 44
F.3d 121, 124 (2nd Cir. 1995).
The state court must have
been apprised of both the factual and legal base of those
claims.
Grey v. Hoke, 933 F.2d 117, 119 (2nd Cir. 1991).
The United States Supreme Court has held that in order
to
satisfy
the
exhaustion
requirement
a
petitioner
requesting federal habeas corpus review is required to
Civil No. 14-1024(DRD)
present claims
to the state supreme court even when its
review is discretionary.
838 (1999).
Page 12
O’Sullivan v. Boerckel, 526 U.S.
The burden of proving that a federal habeas
claim has been exhausted in state court lies with the
petitioner.
Cruz-Gonzalez has not met this burden.
In the Commonwealth of Puerto Rico there is a clear
two-tier system for post conviction relief.
In order for
Petitioner to exhaust his state court remedies, CruzGonzalez must first file a Rule 192.1 motion pursuant to
the Puerto Rico Rules of Criminal Procedure requesting the
trial court to vacate, set aside, or correct the judgment
(34, L.P.R.A. App. II Rule 192.1).
An appeal may be filed
from the subsequent denial of a Rule 192.1 motion.
Once
the appeal has been denied by the Puerto Rico Court of
Appeals then Petitioner must file a writ of certiorari to
the Supreme Court of Puerto Rico, Id.
If the writ of
certiorari is also denied then Cruz-Gonzalez must file a
petition pursuant to section 1741 of the Code of Criminal
Procedure requesting a writ of habeas corpus (34, L.P.R.A.
Sections 1741-1743).
Pursuant to Puerto Rico law, in order for Cruz-Gonzalez
to properly file a section 2254 petition for relief before
this Federal Court, first he must have exhausted all the
remedies to the point of having his petition of writ for
habeas corpus pursuant to section 1741 of the Code of
Criminal Procedure reviewed by the Supreme Court of Puerto
Rico(34 L.R.P.R.A. section 1741).
Civil No. 14-1024(DRD)
Page 13
A review of Petitioner’s own filing, establish that at
the time of his filing before this Court, January 9, 2014,
Cuz-Gonzlaez had gone as far as filing before the Puerto
Rico Court of Appeals (D.E. #2 at p. 10).
Left at that
this case would be dismissed for failure to exhaust state
court remedies.
However, Respondents in their Motion to Dismiss (D.E.
12) make reference to and include the Puerto Rico Supreme
Court’s order dated January 24, 2014, denying Cruz-Gonzalez
request for certiorari review (D.E. 12-2).
There is no
doubt, therefore, that at the time of Petitioner’s filing
he had filed a petition for certiorari which was still
pending before the Supreme Court of Puerto Rico and he was
therefore precluded from filing before this Court a Section
2254 habeas relief.
If Petitioner had properly filed his
claim as the habeas petition that it is, the same would
have been summarily dismissed for failure to exhaust state
remedies.
Cruz-Gonzalez by filing his request as a Section 1983
civil rights violation circumvented Section 2254 exhaustion
requirement.
A Section 1983 claim does not have said
requirement.
The core of Cruz-Gonzalez’s claim is the
denial of the opportunity to reduce his sentence and as
such he has no other alternative than to file a request for
habeas relief pursuant to Section 2254 and must prior to
filing comply with the well established pre requisite
exhaustion of state remedies. Petitioner has not complied.
Civil No. 14-1024(DRD)
Therefore,
Page 14
having
established
that
this
Court
has
before it a disguised 2254 request for habeas relief in the
filing of a section 1983 complaint, it hereby dismisses the
same without prejudice in order to allow Cruz-Gonzalez to
properly comply with and file a habeas request for relief
pursuant to section 2254 if he so chooses9.
CONCLUSION
For
the
petitioner
proceed
in
reasons
JOSE
his
A.
stated,
the
Court
CRUZ-GONZALEZ,
Section
1983
claim
is
concludes
not
before
that
entitled
this
to
Court.
Accordingly, it is ordered that petitioner JOSE A. CRUZGONZALEZ’s complaint under 42 U.S.C. Sec. 1983 (D.E.#2), be
and hereby is DISMISSED WITHOUT PREJUDICE.
The Court further ADVISES CRUZ-GONZALEZ that he may
submit a Section 2254 request for habeas relief for the
consideration of the Court, but after compliance with the
requirement of exhaustion of administrative remedies.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 31st March 2015.
s/Daniel R. Dominguez
DANIEL R. DOMINGUEZ
UNITED STATES DISTRICT JUDGE
9
The Court has allowed this opportunity because it is faced
with a pro-se litigant who does not necessarily have the full
knowledge of the law and its applicability. This Court is giving
Cruz-Gonzalez the benefit of the doubt and not even allowing the
consideration that he proceeded with an improper filing in order to
circumvent a pre requisite which at the time he knew he did not
have.
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