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Richard Joseph Crane v. Mike

January 19, 2011

RICHARD JOSEPH CRANE, PETITIONER,
v.
MIKE MCDONALD, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding without counsel in three currently pending petitions for writ of habeas corpus: No. CIV S-09-0852 FCD EFB P, No. CIV S-09-1511 DAD P, and No. CIV S-10-2604 EFB P. See 28 U.S.C. § 2254. Petitioner seeks consolidation of all three petitions. Case. No. CIV S-09-0852 FCD EFB P, Dckt. Nos. 17 & 29. The parties have filed cross motions in Case No. CIV S-09-0852 FCD EFB P. Respondent moves to dismiss, Dckt. No. 26, and petitioner moves for summary judgment in his favor, Dckt. No. 30.

In Case No. CIV S-09-1511 DAD P, the court has dismissed the petition and granted petitioner until November 22, 2010 to file an amended petition.*fn1 Case No. CIV S-09-1511 DAD P, Dckt. Nos. 15 & 19. The most recently-filed petition, Case No. CIV S-10-2604 EFB P, has not yet been screened by the court.

For the reasons set forth below, the court denies petitioner's requests for consolidation, but orders that case No. CIV S-09-1511 DAD P be reassigned to the undersigned pursuant to Local Rule 190(d). Further, the court recommends that respondent's motion to dismiss Case No. CIV S-09-0852 be granted in part and denied in part, and that petitioner's motion for summary judgment in that case be denied. Lastly, the court recommends dismissal of Case No. CIV S-10-2604 EFB P for failure to state a claim cognizable under § 2254.

I. Consolidation

Consolidation of the three above-listed cases is appropriate only if they involve a common question of law or fact, Fed. R. Civ. P. 42(a), and challenge the same state court judgment, Rule 2(e), Rules Governing § 2254 Cases in the United States District Courts.

In the first-filed petition, Case No. 09-0852 FCD EFB P, petitioner raises several challenges*fn2 to a rules violation report ("RVR") issued against him on November 22, 2005 for refusing a prison job:

(1) that he was deprived of due process because the RVR was false and contravened a ruling in a prior administrative appeal;

(2) that he was deprived of due process and his First Amendment rights when he was issued the RVR because he had a right to refuse to sign forms agreeing to the job and his conduct did not violate any prison rule;

(3) that he was deprived of due process and his First Amendment rights when he was issued the RVR because he had been legally excused from accepting the job.

Case No. 09-0852 FCD EFB P, Petition, Dckt. No. 1 at 4-5, 8, 14-17, 19-30. Petitioner mentions in his appended memorandum that the Board of Parole Hearings ("BPH") used the challenged RVR as a basis to deny him parole on March 1, 2007. Id. at 13, 17. While petitioner did not include a challenge to propriety of the BPH's denial of parole itself in the section of the form petition enumerating his grounds for relief, see id. at 4-5, he alleges in the attached memorandum that the parole hearing "was rendered unconstitutional" by the BPH's consideration of the RVR and subsequent related failure-to-report-to-work disciplinary actions, id. at 28. Petitioner also included in the memorandum allegations implying that the facts of the commitment offense did not justify the denial of parole. Id. at 28-29. Accordingly, the court construes the petition as further alleging:

(4) that he was deprived of due process because the March 1, 2007 decision of the BPH was not supported by some evidence of his current dangerousness.

In Case No. CIV S-09-1511 DAD P, petitioner alleges:

(5) that prison officials denied him his rights under the Eighth and Fourteenth Amendments by declining his need for protective custody in 2001;

(6) that he was deprived of due process and his rights under the First Amendment when officials issued the November 22, 2005 RVR because it interfered with his "out-to-court" status at the time and contravened a ruling in a prior administrative appeal;

(7) that he was deprived of due process because officials placed him in administrative segregation or solitary confinement periodically from October 2001 forward, where he has been unable to complete programs that would enhance his parole eligibility;

(8) that he was deprived of his rights under the Eighth Amendment by being deprived of outdoor exercise for large chunks of 2004, ...


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