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.
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, ...