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Trout v. Kernan


May 20, 2005


The opinion of the court was delivered by: Claudia Wilken United States District Judge

ORDER OF DISMISSAL (Docket nos. 2, 4)


Petitioner Brook Trout, a prisoner of the State of California incarcerated at Salinas Valley State Prison, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging a prison disciplinary decision rendered at Mule Creek State Prison which resulted in a loss of visitation privileges. Venue is proper in this district because Petitioner is incarcerated in a county in this district.*fn1 28 U.S.C. § 2241(d).


On March 7, 2003, Petitioner was issued a Rules Violation Report (RVR) charging him with Distribution/Possession of Controlled Substances. The offense was classified as a Division A-2 offense, a category of offenses which includes the distribution of a controlled substance. See Cal. Code Reg. tit. 15 (CCR), § 3323(c)(7). Petitioner entered a plea of guilty to the charge and was assessed 180 days loss of credit (consistent with a Division A-2 offense), ninety days loss of visits followed by ninety days loss of contact visits, and was placed on mandatory random drug testing for one year.

Thereafter, the RVR was ordered reissued and reheard based upon a requested postponement pending District Attorney referral. Upon rehearing, the Senior Hearing Officer (SHO) noted that the original RVR contained a typographical error indicating that a violation of CCR § 3016(a) had occurred, as opposed to CCR § 3016(c). The former section pertains to possession of a controlled substance--which is categorized as a less serious Division B offense--while the latter pertains to the distribution of a controlled substance--a Division A-2 offense. Based on the typographical error in the original RVR, the SHO determined that the charge must stand as one for drug possession. Therefore, although the SHO determined that there was sufficient evidence to support a charge of distribution, he reduced the charge to a Division B offense. See CCR § 3323(d)(6). Subsequently, the Chief Disciplinary Officer (CDO) modified the RVR to reflect zero loss of credits, but elevated the offense back to a Division A-2 offense.

Petitioner appealed the CDO's decision. At Second Level Review his appeal was denied and it was determined that the sanctions given were not in line with a second drug related offense, nor with the charge of distribution. The RVR therefore was modified to reflect a one year loss of all visiting privileges followed by two years loss of all contact visiting, and the random drug testing requirement was changed to be consistent with a second drug related offense.

Petitioner then appealed to the Director's Level of Review, arguing that under prison regulations he could not be assessed a greater penalty upon rehearing and that this amounted to a violation of due process. The appeal was denied. The Chief of the Inmate Appeals Branch concluded that the quantity of drugs found in Petitioner's possession and the manner in which they were packaged supported a finding of distribution by a preponderance of the evidence, and that Petitioner's right to due process was not violated by punishing him consistently with that offense. The decision noted that Petitioner's procedural rights were protected at the hearing and that the visiting restrictions were mandatory.

In the present petition, Petitioner argues that the greater punishment he received upon rehearing violated his right to due process based upon a liberty interest created by the State disciplinary regulations.


I. Standard of Review

A district court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see Rose v. Hodges, 423 U.S. 19, 21 (1975). Traditionally, challenges implicating the fact or duration of confinement must be brought through a habeas petition, while challenges to prison conditions have been cognizable only via 42 U.S.C. § 1983. Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004). The Supreme Court has declined to address whether a challenge to a condition of confinement may be brought under habeas. See Bell v. Wolfish, 441 U.S. 520, 526 n.6 (1979). However, the Ninth Circuit has held that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003). A district court may construe a habeas petition by a prisoner attacking the conditions of his confinement as a civil rights action under § 1983. See Wilwording v. Swenson, 404 U.S. 249, 251 (1971).

Here, a successful challenge by Petitioner to the punishment he received at his disciplinary hearing would not shorten his sentence, because he was assessed only a loss of visitation privileges and not time credits. Accordingly, the Court will construe this habeas petition as a civil rights complaint and will review the claims under 28 U.S.C. § 1915A. Section 1915A requires a federal court to engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer, or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2).

II. Due Process

Interests protected by the Due Process Clause may arise from two sources--the Due Process Clause itself and laws of the states. See Meachum v. Fano, 427 U.S. 215, 223-27 (1976).

Changes in conditions so severe as to affect the sentence imposed in an unexpected manner implicate the Due Process Clause itself, whether or not they are authorized by State law. See Sandin v. Conner, 515 U.S. 472, 484 (1995). Deprivations authorized by State law that are less severe or more closely related to the expected terms of confinement also may amount to deprivations of a procedurally protected liberty interest, provided that (1) State statutes or regulations narrowly restrict the power of prison officials to impose the deprivation, i.e. give the inmate a kind of right to avoid it, and (2) the liberty in question is one of "real substance." See id. at 477-87.

A prisoner's interest in unfettered visitation is not guaranteed by the Due Process Clause itself. See Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989); see also Barnett v. Centoni, 31 F.3d 813, 817 (9th Cir. 1994) (prisoners have no constitutional right to contact or conjugal visitation). However, because California has created regulations from which a protected interest in visitation could arise, the court must ask whether the regulations creating the right to participation in the program narrowly restrict the power of prison officials to deny inmates visitation, and whether the deprivation suffered due to a denial of visitation is one of "real substance." See Sandin, 515 U.S. at 477-87.

Looking at the regulatory language, CCR § 3173 sets forth general substantive criteria which must be followed and circumstances under which visitation must be approved. And CCR § 3176.4 provides for specific circumstances in which visiting privileges must be denied (such as when an inmate is found guilty of possessing or distributing drugs). In addition, however, CCR § 3170(c) provides that visitation may be denied for reasons other than those set forth in the regulations, and section 3170(e) states that visits are subject to denial or restriction as necessary to provide fair allocation of prison resources. And CCR § 3174(e) provides that any contact or conjugal visit is a "privilege," not a right.

The right to visitation provided by the regulations "is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of the listed conditions." See Thompson, 490 U.S. at 464-65 (finding no protected liberty interest in Kentucky visitation regulations). Because a visit may be denied regardless of compliance with substantive criteria, this language is not sufficiently mandatory to meet the first prong of the Sandin test, and therefore no protected liberty interest requiring constitutional protection is created.

Moreover, any deprivation suffered from a denial of visitation is not one of real substance. "Real substance" will generally be limited to freedom from restraint that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," Sandin, 515 U.S. at 484, or State action that "will inevitably affect the duration of [a] sentence," id. at 487. Because the limits placed on Petitioner's visitation privileges will not inevitably affect the duration of his sentence, the remaining question which must be answered is whether the restrictions impose atypical and significant hardship on Petitioner in relation to the ordinary incidents of prison life.

Whether disciplinary punishment rises to the level of an "atypical and significant hardship" requires "case by case, fact by fact consideration." Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996). Sandin requires a factual comparison between conditions in the prisoner's former status and his new status, examining the hardship caused by the challenged action in relation to the basic conditions of life as a prisoner. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003).

Here, the basic conditions of life as a prisoner in California do not include an expectation of unfettered visitation. Moreover, the Supreme Court has held that the withdrawal of visitation privileges for a limited period as a regular means of discipline is one of the restraints that should be expected as a consequence of incarceration. Overton v. Bazzetta, 539 U. S. 126, 137 (2003). It is not a dramatic departure from accepted standards for conditions of confinement, nor does it create inhumane prison conditions, deprive inmates of the basic necessities of life, endanger inmates' health or safety, involve the infliction of pain or injury or demonstrate deliberate indifference to risks of pain or injury. Id. This Court therefore concludes that the hardship caused by the punishment meted out to Petitioner does not amount to a deprivation of real substance within the meaning of Sandin.

Because the protections of due process do not apply to a prison disciplinary board's decision to impose punishment in the form of the loss of visitation privileges, Petitioner fails to state a claim for relief. Accordingly, this action is DISMISSED.


For the foregoing reasons, the petition is construed as a civil rights complaint and the complaint is DISMISSED with prejudice for failure to state a claim for relief. Leave to proceed in forma pauperis is DENIED. (Docket nos. 2, 4.) The Clerk of the Court shall enter judgment and close the file.


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