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United States District Court, S.D. California

October 20, 2005.

JOEL BROWN Petitioner,
STUART J. RYAN, Warden-Acting, et al., Respondents.

The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge

Order Granting in Part and Denying in Part Motion to Dismiss [Doc. No. 15]
Petitioner Joel Brown, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his May 19, 2004 conviction in Riverside County Superior Court Case No. CR-23726. The Petitioner is currently serving an indeterminate term of twenty-seven (27) years to life at Calipatria State Prison for first degree murder. See Lodgements, Exh. 1. Respondents have filed a Motion to Dismiss and lodged relevant portions of the state court record. Petitioner has filed an Opposition. Upon review and for the reasons set forth herein, it is recommended that Respondents' Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

Procedural History

  On or about July 10, 2003, Petitioner filed a petition for Writ of Habeas Corpus with Imperial County Superior Court in California alleging violations similar to those asserted in the instant petition. [Pet. for Writ, Imperial Sup. Ct., Case No. W-0459]. On August 8, 2003, the Superior Court of the State of California in and for the County of Imperial entered an Order Denying Petition for Writ of Habeas Corpus citing Petitioner's failure to present any evidence of exhaustion of administrative remedies, however, recognizing and agreeing with Petitioner's assessment that the CDC's administrative remedies could not grant relief and noting Petitioner's failure to state sufficient facts upon which relief by writ could be granted. [Sup. Ct. of Imperial County, On February 3, 2005, Case No. W-0459].*fn1

  On or about August 19, 2003, Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of Appeal, Fourth Appellate District alleging the same Eighth Amendment violations and alleging that the Imperial County Superior Court had violated his Due Process rights. [Pet. for Writ, Cal. Ct. of App., Case No. D042759]. On September 18, 2003, Petitioner's claims were again denied, with the California Court of Appeal citing failure to exhaust administrative remedies. [Cal. Ct. of App., September 18, 2003, Case No. W0459]. On October 2, 2003, Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court opposing the California Court of Appeal's decision and laying out similar claims of Eighth Amendment violations and also alleging that the lower court had violated his Due Process rights. [Pet. Writ., Sup. Ct. Cal., October 2, 2003, Case No. S119461]. On May 19, 2004, the California Supreme Court denied Petitioner's Writ without comment. [Sup. Ct. of Cal., May 19, 2004, Case No. S119461].

  On February 3, 2005, Petitioner filed a petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court relying on facts that were exhausted in the California Supreme Court Case No. S119461. On February 23, 3005, this Court dismissed the Petition for failure to satisfy the filing fee requirement and for failing to identify a cognizable federal habeas claim. Petitioner was ordered to either pay the filing fee or submit adequate proof of his inability to pay and was ordered to cure his pleadings. The Court also ordered Petitioner to file a separate complaint pursuant to § 1983 if he wished to proceed with any or all of the civil rights claims set forth in his habeas petition. Petitioner responded on March 18, 2005, by filing a motion to proceed in forma pauperis, and rather than filing an amended petition, Petitioner filed objections to the Court's February 23, 2005 Order of Dismissal.

  On April 8, 2005 the Court entered an order denying Petitioner's request to proceed in forma pauperis. [Order Deny. in Form. Paup., U.S. Dist. Ct. South. Dist. of Cal., April 8, 2005, Case No. 05CV0216]. The Court again reiterated that Petitioner had not clearly defined his claims and that the Court was unsure as to whether Petitioner meant to assert claims under 28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In addressing the objections raised by Petitioner, the Court noted two identifiable liberty interests that could only be restored via a habeas corpus action. First, the Court noted Petitioner's claim that the CDC's failure to release him due to overcrowding, a practice common in other states, constituted a violation of the Equal Protection Clause of the Fourteenth Amendment. Second, the Court noted Petitioner's claim that the CDC's restrictions on participation in programs which allow inmates to earn custody credits that could ultimately reduce the length of their sentence also raised a liberty interest. However, the Court noted that these claims were not sufficiently articulated to satisfy the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases where the claims contained only references to prior petitions with the requisite facts buried in attachments. As such, the Court found the Petition failed to specify all grounds for relief available to the petitioner and failed to state the facts supporting each ground and dismissed the action without prejudice to allow Petitioner to file an amended petition.

  On or about May 23, 2005, Petitioner filed this First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. [First Amend. Pet. for Writ., U.S. Dist. Ct. South. Dist. of Cal, Case No. 06CV0216-BTM]. On or about August 24, 2005, Respondent filed a Motion to Dismiss Petitioner's Writ of Habeas Corpus arguing that the Petition was barred by procedural default and on the basis that the Petition fails to raise a cognizable claim under § 2254.

  Legal Standard

  1. Procedural Default

  The procedural default doctrine forecloses review of a state prisoner's federal habeas claims, if those claims were defaulted in a state court pursuant to an independent and adequate state procedural rule. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). For a state procedural rule to be "independent," the state law basis for the decision must not be interwoven*fn2 with federal law. Michigan v. Long, 463 U.S. 1032, 1040-41 (1983); Harris v. Reed, 489 U.S. 255, 265 (1989). In order for a state procedural rule to be "adequate," it "must have been `firmly established and regularly followed' by the time as of which it is to be applied." Ford v. Georgia, 498 U.S. 411, 424 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). In the instant case, the Court must determine whether the state courts were regularly and consistently applying the relevant procedural default rule "at the time the claim should have been raised." Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997).

  A state procedural bar rule is inadequate to preclude federal habeas review if the state rule is not consistently applied. Loveland v. Hatcher, 231 F.3d 640 (9th Cir. 2000) (citing Moran v. McDaniel, 80 F.3d 1261, 1269 (9th Cir. 1996)); see also Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001). "In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).

  2. Whether a Prisoner Should Proceed under 28 U.S.C. § 2254 or Under 42 U.S.C. § 1983

  The Supreme Court has held that a prisoner may use § 1983 to challenge the conditions of his confinement, but habeas corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the remedy requested would result in the prisoner's immediate or speedier release from that confinement. Wilkinson v. Dotson, 125 S.Ct. 1242 (2005). The Supreme Court sets forth an implied exception to § 1983's coverage where the claims seek, but not where they simply relate to, core habeas corpus relief, i.e., where a state prisoner requests present or future release. Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973). Section 1983 remains available for procedural challenges where success in the action would not necessarily spell immediate or speedier release for the prisoner. Wolff v. McDonnell, 418 U.S. 539 (1974). However, habeas remedies do not displace § 1983 actions where success in the civil rights suit would not necessarily vitiate the legality of state confinement, which was not previously invalidated. Edwards v. Balisok, 520 U.S. 641(1997). A prisoner may not use § 1983 to obtain damages where success would necessarily imply the unlawfulness of a conviction or sentence, which was not previously invalidated. Heck v. Humphrey, 512 U.S. 477 (1994).

  In the parole context, the divide between habeas and § 1983 civil rights actions, grows ever murkier with respect to the question of whether a prisoner should proceed pursuant to 28 U.S.C. § 2254 or under 42 U.S.C. § 1983. In Docken v. Chase, the Ninth Circuit recently held that "when prison inmates seek only equitable relief in challenging aspects of their parole review, that, so long as they prevail, could potentially affect the duration of their confinement, such relief is available under the federal habeas statute." 393 F.3d 1024, 1031 (9th Cir. 2004) (Emphasis added). Under Docken, even when, as here, petitioner's claims do not constitute the kind of "core" challenge contemplated by Preiser, the Petitioner may still proceed under § 2254 so long as there is an undeniable "potential relationship between his claim and the duration of his confinement. . . ." Id. at 1031.


  The Petitioner contends that state budgetary cuts and shortfalls are causing prisons to operate at double the designed capacity, and that such cut backs have eliminated or adversely affected certain prison programs and privileges (e.g. work participation, family visits, monthly canteen draw, telephone access, yard access, receipt of special packages, dayroom activities, food quality and quantity, prisoner transfers and programs for life-sentence prisoners) in violation of Petitioner's Constitutional Fourteenth Amendment right to equal protection and Eighth Amendment right to be free from cruel and unusual punishment. See Lodgements, Exh. 2. Petitioner claims that California's budgetary constraints have resulted in a decrease in the number of prison staff, which has in turn led to a reduction in the availability of self-help programs and vocational and educational programs. Petitioner alleges that the absence of such programs can negatively impact a prisoner's ability to win favor with the parole board and that the overall decline in prison staff presence can lead to an increase in prisoner hostility and violence further negatively impacting a prisoner's likelihood of favorable review. Petitioner alleges that this is a violation of his Equal Protection rights because inmates in other states that do not suffer from budgetary deficiencies have less hostile living environments, have access to the type of programs that Petitioner does not, and have received early releases as a result as a result of such overcrowding.

  The Petition further claims that California's budget cuts have impacted Petitioner's standard of living to a degree that amounts to cruel and unusual punishment. As evidence, Petitioner claims that inmates are receiving less than the mandatory 2,700 calories per day and that a reduction in medical staff has led to substandard medical care.

  Respondents' contend that the Petition should be dismissed for two reasons. Respondents argue that the Petition is barred by procedural default because the Petitioner failed to exhaust his administrative remedies before seeking relief in state court. Respondents also contend that the Petition fails to invoke the jurisdiction of this Court, as Petitioner's challenges to the conditions of his confinement are not cognizable on federal habeas corpus review.

  1. Procedural Default

  Respondents argue that Petitioner's claims are procedurally defaulted because he failed to exhaust his administrative remedies prior to initiating habeas corpus proceedings. Respondents contend that Petition was denied at every level of state court review on the ground that Petitioner failed to exhaust his administrative remedies prior to initiating habeas corpus proceedings. Dft. Mem. at 3. However, the Petitioner argues, and the Court agrees, that the Petition was not denied by the Superior Court for failure to exhaust administrative remedies, rather, the Superior Court agreed with Petitioner's assessment that the "CDC does not have the authority to grant relief, nor can they remedy the concerns of the petition."

  As set forth above, the requirement that one exhaust a well-defined system of administrative remedies before turning to the court for relief is a well settled legal doctrine. In re Serna, 76 Cal. App.3d 1010, (Cal.Ct.App. 1978) (citing McKart v. United States 395 U.S. 185, 193-195 (1969); Abelleira v. District Court of Appeal 17 Cal. 2d 280, 291-296 (1941); In re Muszalski (1975) 52 Cal. App. 3d 500, 503 (1975). Indeed, a California court that hears a cause which is prematurely withdrawn from an administrative appeals procedure is considered to be without jurisdiction. Hesperia Land Development Co. v. Superior Court, 184 Cal. App.2d 865, 876 (1960).

  The Court agrees with Respondents argument that the appeals procedure of the CDC which provides administrative remedies must normally be exhausted before habeas corpus relief is sought in Superior Court. In re Muszalski, 52 Cal. App.3d at p. 508. However, this Court notes that the administrative exhaustion requirement is not without exception. Ogo Associates v. City of Torrance, 37 Cal. App.3d 830, 834 (1974). The rule requiring administrative exhaustion is frequently waived where the administrative procedure is not well-defined (Endler v. Schutzbank, 68 Cal.2d 162, 168 (1968)), where the administrative remedy is inadequate (Glendale City Employees' Assn., Inc. v. City of Glendale, 15 Cal.3d 328, 342-343 (1975)), or futile (Gantner & Mattern Co. v. California E. Com., 17 Cal.2d 314, 318 (1941)), or where there is a threat of irreparable injury (Abelleira v. District Court of Appeal, 17 Cal.2d at pp. 296-297; Walker v. Munro, 178 Cal. App.2d 67, 72-73 (1960)). It appears that the Superior Court not only acknowledged Petitioner's assertion that the CDC's administrative remedies could not address his complaints, but that the Superior Court agreed with Petitioner that his claims fell within one of the recognized exceptions to the rule requiring administrative exhaustion. Lodgements at 41. As such, the Court finds that the instant Petition is not procedurally barred by Petitioner's failure to exhaust available CDC administrative remedies.

  2. Failure to State a Cognizable Claim on Federal Habeas Corpus Review

  Applying the principles set forth above to the present case, the Court concludes that the Petitioner has, with regard to the claims involving early release and cuts in prison programs which would allow Petitioner to earn custody credits, stated a cognizable habeas claim in the instant Petition sufficient to survive Respondents' Motion to Dismiss. In the Court's Order dated April 8, 2005, Judge Moskowitz stated that while the majority of the Petitioner's claims relate to conditions of confinement which have no bearing on the length or validity of his sentence, Petitioner correctly points out that the above two claims arguably affect the length of his confinement. Nothing in Ninth Circuit or Supreme Court precedent forecloses habeas in such cases. Indeed, the Ninth Circuit's use of the term "likely" to identify claims with a sufficient nexus to the length of imprisonment, so as to implicate, but not fall squarely within the "core" challenges identified by the Preiser Court, implies the availability of relief under the federal habeas statute. Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (Such a reading follows from Bostic itself, which speeks of claims that are likely to accelerate the prisoner's eligibility for parole, rather than those likely to accelerate the prisoner's release). Furthermore, the Ninth Circuit has stated that they are "reluctant to unnecessarily constrain our jurisdiction to entertain habeas petitions absent clear indicia of congressional intent to do so." See, e.g., INS v. St. Cyr, 533 U.S. 289 (2001); Flores-Miramontes v. INS, 212 F.3d 1133 (9th Cir. 2000). As such, this Court recommends that Respondents Motion to Dismiss as to these claims be DENIED.

  With regard to the remaining claims in the Petition, namely, increased risk to inmate safety resulting from cuts in prison staff; reduction or elimination of transfers to CDC facilities which provide access to college level courses; quality and quantity of CDC meals provided to inmates; and the reduction of medical services, prescriptions and procedures afforded inmates, this Court recommends that Respondents Motion to Dismiss be GRANTED. As aptly stated in Judge Moskowitz's Order of February 23, 2005, these claims seek to challenge the conditions of Petitioners' prison life, rather than the fact or length of his custody. See Wolff, 418 U.S. at 554-555. And as such, a favorable judgment will not "necessarily imply the invalidity of [his] conviction[s] or sentence[s]." Heck v. Humphrey, 512 U.S. at 487. Since these claims implicate the conditions of his confinement and not the fact or duration of his custody, they cannot form the basis of habeas relief. It is the preferred practice in this Circuit to bring challenges to conditions of confinement through a civil rights complaint under section 1983. See Badea, 931 F.2d at 574 (finding that challenges to terms and conditions of confinement are properly raised through a § 1983 action); Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1979) (holding that challenges to terms and conditions of confinement must be brought in civil rights complaints).

  Should Petitioner seek to proceed with the dismissed claims under 42 U.S.C. § 1983, Petitioner is advised that he must provide specific factual details as to the actual injuries suffered and identify the federal constitutional basis, if any, for each of these claims which challenge the conditions of his confinement. In drafting such a complaint, Petitioner should assume that this Court knows nothing about his case and should therefore provide a clear explanation of what events occurred and how his federal constitutional rights were violated.


  For the foregoing reasons, the Court hereby recommends that Respondent's Motion to Dismiss be GRANTED IN PART and DENIED IN PART without prejudice. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the court and serve a copy on all parties by November 11, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by November 28, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).



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