FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. With this petition, petitioner does not challenge his underlying conviction and sentence. Rather, petitioner challenges a finding of guilt following a prison disciplinary hearing held on November 29, 2008. Although initially charged with theft, a "serious" violation, petitioner was found guilty of an administrative violation, "Unauthorized acquisition of state property valued at $50 or less," in violation of 15 Cal. Code Regs. tit. 15, § 3006. Petitioner was assessed no loss of good time credit. Petitioner claims his due process and equal protection rights were violated.
On February 26, 2010, respondent filed a motion to dismiss for failure to state cognizable grounds for federal habeas relief. Petitioner filed an opposition to the motion, and respondent has filed a reply. (Docket Nos. 13 & 14.)
Upon review of the motion and the documents in support and in opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
Petitioner filed a petition for writ of habeas corpus on December 11, 2009. Therein, petitioner challenges a finding of guilt following a hearing in which petitioner was initially charged with theft, a "serious" violation. (See Pet., Ex. A.) According to the Rule Violation Report ("RVR"), an unidentified correctional officer observed petitioner passing a brown paper bag, which was later confirmed to contain fourteen bars of State-issued soap, to another inmate on November 18, 2008. (See Pet., Ex. B.) At the disciplinary hearing, petitioner claimed he did not steal the soap, but was given the paper bag by one inmate to give to another. He sought to call these two inmates as witnesses for the purpose of testifying that petitioner did not steal. The hearing officer, however, did not call them as witnesses and instead accepted their written affidavits, wherein they both stated that petitioner did not steal the soap, but was given the paper bag by one inmate to give to the other. Based on the evidence before the hearing board, petitioner was found guilty of the lesser, administrative offense of "Acquisition of state property valued at $50 or less." As punishment, petitioner was counseled and reprimanded.
Petitioner brings his petition on due process and equal protection grounds, claiming that he was denied the right to call witnesses, the RVR was based on hearsay, and he was discriminated against because of his race (the two inmates who admitted to involvement in the incident and who are not Caucasian were not charged with any crime, but petitioner, who is Caucasian, was charged). Petitioner brings his claims in this habeas petition because he contends the disciplinary violation will affect his future parole eligibility.
On February 26, 2010, respondent filed a motion to dismiss. On April 22, 2010, petitioner filed an opposition. On May 3, 2010, respondent filed a reply.
RESPONDENT'S MOTION TO DISMISS
Respondent seeks dismissal of the petition on three grounds. First, respondent argues petitioner's due process claims fail to state grounds for relief because he failed to show he was deprived of any federally protected liberty interest. Second, respondent contends the petition should be dismissed because petitioner has not shown how success on this petition would shorten the duration of his confinement. Finally, respondent seeks dismissal of petitioner's equal protection claim on the ground that petitioner failed to show a real possibility of constitutional error.
STANDARDS FOR A MOTION TO DISMISS
Rule 12(b)(6) of the Federal Rules of Civil Procedures provides for motions to dismiss for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197 (2007), and construe the pleading in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In order to survive dismissal for failure to state a claim a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554 (2007). However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 551 U.S. 89, 127 S.Ct. at 2200 (quoting Bell Atlantic at 554, in turn quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
On August 11, 2009, plaintiff received the notice required by Wyatt v. Terhune, 305 F.3d 1033 (9th Cir. 2002), for opposing a motion to dismiss for failure to exhaust administrative remedies pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.
The court finds that the dispositive issue here is whether petitioner's claims are appropriately brought in a habeas petition. It is evident that petitioner is not contesting the fact or duration of his confinement. Instead, petitioner is contesting a finding of guilt following a disciplinary hearing in which no good time credits were revoked. Petitioner argues that ...