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Perrotte v. Sullivan

February 3, 2010

JEFFREY P. PERROTTE, PETITIONER,
v.
WARDEN W. J. SULLIVAN, RESPONDENT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. 12) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS

Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 25, 2008, Petitioner filed his petition for writ of habeas corpus in this Court. (Doc. 1).

Petitioner challenges the placement of a Form CDCR-128B, known as a "counseling chrono," in his prison file without providing an administrative hearing, thus violating Petitioner's right to due process and impacting his chances to be granted parole. (Doc. 1, p. 7). On June 22, 2009, Respondent filed the instant motion to dismiss, contending that because the claim does not challenge the legality or duration of his confinement, the Court lacks habeas jurisdiction. (Doc. 12, p. 3). Respondent also argues that because Petitioner does not have a liberty interest in the documents contained in his prison file, the petition fails to state a claim upon which habeas corpus relief can be granted. (Id. at p. 4). On July 7, 2009, Petitioner filed his opposition. (Doc. 13).

For the reasons discussed below, the Court agrees with Respondent that the instant petition fails to meet the threshold requirement for bringing a habeas petition and therefore the petition should be dismissed.

DISCUSSION

A. Procedural Grounds for Motion to Dismiss

As mentioned, Respondent has filed a Motion to Dismiss the petition for failure to state a cognizable federal habeas claim. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990).

The Ninth Circuit has allowed Respondent's to file a Motion to Dismiss in lieu of an Answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.

In this case, Respondent's Motion to Dismiss is based on a claimed failure to state a federal habeas claim. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and because Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.

B. The Court Lacks Habeas Jurisdiction

The Court must dismiss a petition "[i]f it plainly appears from the face of the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution . . . ." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner 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); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.

In this case, Petitioner challenges the placement in Petitioner's prison file of a chronological report ("chrono"), written by Correctional Officer Mary Anne Kinsella and submitted on a CDCR Form 128-B, that Petitioner claims adversely affected him at a hearing before the Board of Parole Hearings ("the Board"). The chrono in question states that Kinsella, who had observed Petitioner in his job working for the X-Ray Technician, staying "past his work hours, until late approximately 1600 hours on a daily basis," and that she was "concerned for the safety of the female staff" because, in Kinsella's opinion, Petitioner was a "staff manipulator." (Doc. 1, p. 28). Kinsella went on to opine that, "[b]ased on my experience as a Correctional Officer, it is the opinion of this writer that [Petitioner] is an opportunist and is just buying time on when he will make a move against female medical staff. [Petitioner] should be removed from the position in the clinic to another position where he does not have close direct contact with female staff." (Id.).

Petitioner alleges that he subsequently told the medical clinic supervisor, Sergeant Robinson, about the chrono, that Robinson was "extremely upset" and "furious" at Kinsella, and that he told Petitioner that Kinsella was "using her 'sex' to cause [Petitioner] harm." (Doc. 1, p. 9). Thereafter, the matter was reviewed by the Unit Classification Committee ("UCC"). (Id., p. 10). The members of the UCC indicated that they "disbelieved the allegations" by Kinsella, retained Petitioner in his job assisting the X-Ray ...


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