The opinion of the court was delivered by: Barbara L. Major United States Magistrate Judge
REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS
This Report and Recommendation is submitted to United States District Judge M. James Lorenz pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.
On January 12, 2010, Petitioner, a state prisoner proceeding pro se and in forma pauperis, filed a First Amended Petition for Writ of Habeas Corpus. Doc. No. 9 ("FAP"). Petitioner challenges a decision by the prison's senior disciplinary hearing officer finding him guilty of refusing a direct order. FAP at 6; Pet'r Mem. P. & A. Supp. FAP ("Pet'r Mem.") at 3. Petitioner seeks an order reversing the guilty finding, dismissing the disciplinary charges, and expunging the Rules Violation Report underlying the disciplinary conviction from his prison file. Pet'r Mem. at 13. On April 8, 2010, Respondent moved to dismiss the FAP. Doc. No. 15 ("Mot. to Dismiss"). Petitioner did not file an opposition to the motion to dismiss by the deadline set by this Court and has not sought an extension of time in which to do so.
This Court has considered the above documents as well as the record as a whole. Based thereon, and for the reasons set forth below, this Court RECOMMENDS that Petitioner's First Amended Petition for Writ of Habeas Corpus be DISMISSED.
FACTUAL AND PROCEDURAL BACKGROUND
In his well-written petition, Petitioner challenges a disciplinary conviction stemming from an incident that occurred on May 6, 2008. Petitioner explains that he has been classified as a "Sensitive Needs" ("SNY") inmate since August of 2005, which means that he is supposed to be physically segregated from all non-SNY general population inmates. Pet'r Mem. at 1. Despite this status, correctional staff attempted to house a general population inmate with him on May 6, 2008. Id. at 1-2. When the officer arrived with the potential cell mate, Petitioner asked to be placed in a holding cage next to the potential cell mate so that he could ascertain from this individual whether or not he also was a SNY inmate and, if not, whether he minded being housed with one. Id. at 2. Petitioner explains that he needed to know the answers to these questions in order to ensure his own safety because general population prisoners have unofficial "standing orders" or a "responsibility" to assault SNY inmates when given the opportunity. Id. If they fail to do so, they too may become targets. Id. According to Petitioner, correctional officers are well aware of this unofficial prison yard policy. Id. Petitioner stresses that at no time did he refuse to accept this individual as a cell mate; he simply asked to speak with him first. Id.
The correctional officer allegedly denied Petitioner the opportunity to speak with the other inmate, so Petitioner asked to be moved to administrative segregation due to his concern for his own safety. Id. at 3. Though a correctional officer told Petitioner he would be moved to administrative segregation, officers instead placed the potential cell mate in an empty cell elsewhere in the housing unit. Id. at 3, 7. Petitioner did not hear anything else about the incident until about a week later when he received a Rules Violation Report ("RVR") charging him with refusing to obey a direct order. Id. at 3.
At the subsequent disciplinary hearing, Petitioner was found guilty of the charge and assessed a loss of thirty days of good time credits*fn1. Id. at 3 and Ex. 4*fn2 (a copy of the RVR).
Petitioner thereafter appealed the disciplinary conviction through the prison's administrative appeal system. Id. at 3; see also Lodgment 2. His appeal was denied at the Director's Level on January 28, 2009. Lodgment 2.
On March 2, 2009, Petitioner sought collateral review of his disciplinary conviction in a California superior court. Lodgment 3. The superior court denied his petition on March 23, 2009. Lodgment 4. Petitioner then filed a habeas petition in the California Court of Appeal, Third District, which that court denied on June 4, 2009. Lodgments 5 & 7. On July 9, 2009, Petitioner filed a habeas petition in the California Supreme Court. Lodgment 6. The petition was summarily denied without citation of authority on August 12, 2009. Lodgment 8; Pet'r Mem., Ex.
On November 16, 2009, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Eastern District of California. Doc. No. 1. The case subsequently was transferred to this district and then dismissed with leave to amend. Doc. Nos. 4 & 8. On January 12, 2010, Petitioner filed the FAP presently being considered by the Court. Doc. No. 9. Therein, Petitioner alleges that the correctional officers who attempted to house Petitioner with a general population inmate violated the Eighth Amendment by abdicating their duty to protect him from violence at the hands of other inmates. Pet'r Mem. at 5-6 (citing Farmer v. Brennan, 511 U.S. 825, 832-33, 845 (1994)). Petitioner also alleges a Fourteenth Amendment violation, explaining that this Constitutional amendment ensures the right to be free from unjustified intrusions on an inmate's personal security. Id. at 6 (citing Ingraham v. Wright, 430 U.S. 651, 673 (1977)). Citing the California Constitution and California Code of Regulations, tit. 15, § 3271, Petitioner argues that California law also protects inmates from harm. Id.
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application 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 ...