The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS PETITION AND PETITIONER'S MOTION FOR AN EVIDENTIARY HEARING
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation. In the instant petition, Petitioner challenges a June 10, 2008, prison rule violation for battery on an inmate with a weapon.
Respondent filed the instant motion to dismiss for lack of jurisdiction on September 28, 2010. Petitioner filed an opposition on October 21, 2010, and Respondent filed a reply on November 19, 2010.
A. Procedural Grounds for Motion to Dismiss Rule 4 of the Rules Governing Section 2254
Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed respondents 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 the lack of jurisdiction under 28 U.S.C. § 2254. Therefore, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
Federal habeas corpus jurisdiction exists only if a state prisoner is in custody in violation of federal laws. 28 U.S.C. § 2254(a). The challenged action must affect the fact or duration of the inmate's custody. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). In this case, although Petitioner was initially assessed a 90-day credit loss, it was subsequently restored through the inmate appeals process. During the appeal process, it was discovered that the disciplinary action should have been classified as a Division A1 offense, rather than a Division D, rule violation. The error was corrected and as a result the 90-day credit loss was restored to Petitioner. Thus, any challenge to the disciplinary action has not lengthened or otherwise affected the duration of Petitioner's custody, and relief under section 2254 is foreclosed.
Moreover, Respondent has submitted evidence that Petitioner remains in the SHU, not because of the rule violation, but because his safety is in danger and he refuses to accept alternative housing. (Reply, Ex. 1, Housing Assignment Chrono; Ex. 2, Memo Regarding Housing for Garcia.) Petitioner was assessed a SHU term for the rule violation, the term ended on December 10, 2009. (Ex. 1.) However, Petitioner cannot be released to the general population because other inmates are targeting him for assault because of his commitment offense. (Ex. 1; Ex. 2.) Petitioner was offered an alternative housing unit in the special needs yard (SNY)-a facility with the same conditions as the general inmate population facility and which houses other inmates targeted for assault because of their commitment offenses or prior-gang drop out status. (Id.) Petitioner refused housing in the SNY, and the only other alternative housing that does not comprise his safety is in the SHU. (Id.) Accordingly, it is clear ...