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Emiliano Lopez v. James A. Yates

March 18, 2011

EMILIANO LOPEZ,
PETITIONER,
v.
JAMES A. YATES,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE COGNIZABLE CLAIMS FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY OBJECTIONS DEADLINE: THIRTY (30) DAYS

(Doc. 1)

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is the petition, which was filed on March 3, 2011.

I. Jurisdiction

Petitioner, an inmate of Kern Valley State Prison (KVSP) serving a sentence of three to fifteen years, challenges a prison disciplinary finding made at the prison on February 1, 2008, that Petitioner resisted staff in January 2008 in violation of Cal. Code Regs., tit. 15, §3005(c), which resulted in a forfeiture of thirty days of credit. (Pet. 1, 42.)

Because the petition was filed after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the AEDPA applies in this proceeding. Lindh v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).

A district court may entertain a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court only on the ground that the custody is in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. --, -, 131 S.Ct. 13, 16 (2010) (per curiam). 28 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000).

Plaintiff claims that in the course of the proceedings resulting in the disciplinary finding, he suffered violations of his Fourteenth Amendment right to due process of law as well as his Eighth and Fourteenth Amendment right not to suffer cruel and unusual punishment. Because violations of the Constitution are alleged, the Court has subject matter jurisdiction over the instant petition.

Further, Petitioner names as Respondent James A. Yates, warden of PVSP and a person who has custody of the Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules). See, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).

Accordingly, this Court has jurisdiction over this action and over Respondent Yates.

II. Screening the Petition

Habeas Rule 4 requires the Court to make a preliminary review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Habeas Rule 4; O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990). Habeas Rule 2(c) requires that a petition 1) specify all grounds of relief available to the Petitioner; 2) state the facts supporting each ground; and 3) state the relief requested. Notice pleading is not sufficient; rather, the petition must state facts that point to a real possibility of constitutional error. Rule 4, Advisory Committee Notes, 1976 Adoption; O'Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977)). Allegations in a petition that are vague, conclusory, or palpably incredible are subject to summary dismissal. Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

Further, the Court may dismiss a petition for writ of habeas corpus either on its own motion under Habeas Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Advisory Committee Notes to Habeas Rule 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 (9th Cir. 2001).

Petitioner raises the following claims in the petition:

1) the failure of the disciplinary hearing officer to permit Petitioner to call and confront witnesses and to present documentary evidence violated Petitioner's right to due process of law; 2) Officer Hamner's falsification of evidence to make it appear that Petitioner committed a rules violation violated Petitioner's right to be free from cruel and unusual punishment; and 3) the failure of prison authorities to process Petitioner's appeal and complaint against the prison guard denied Petitioner access to the courts and Petitioner's Fourteenth Amendment right to due process of law.

A review of the petition demonstrates that Petitioner has included apparently complete documentation of the challenged disciplinary proceedings and Petitioner's exhaustion of the administrative remedies available to Petitioner within the CDCR. (Pet. 1-63.)

Petitioner claimed in the disciplinary proceedings and alleges in the petition that he did not interfere with staff, and that staff used excessive force against him in the pertinent encounter. Other than Petitioner's denial that he engaged in the prohibited conduct, there do not appear to be any disputed material facts with respect to the disciplinary proceedings or the evidence underlying the finding that Petitioner interfered with staff.

Accordingly, the Court will proceed to determine whether Petitioner's allegations state a cognizable claim for habeas corpus relief.

III. Factual Allegations

In a rules violation report dated January 6, 2008, Correctional Officer T. Hamner reported that after taking a shower on January 1, 2008, Petitioner returned to his cell but left the cell door open, as he frequently did. Hamner ordered Petitioner to close his door three times without any result. Because another correctional officer was at a distance, Hamner approached the cell to close the cell door.

When Hamner reached a stairwell, Petitioner walked toward it, ignored another direction from Hamner to lock up, and quickly descended half the staircase, meeting Hamner and blocking Hamner's safe progress upwards. From a distance of about two feet from the officer, Petitioner ignored another order from Hamner to return to his cell and get off the stairs. Hamner grabbed Petitioner's right bicep, turned Petitioner to his left so he was facing away from the officer, and used both hands to control Petitioner as Hamner proceeded down the stairs. Petitioner resisted by leaning back and using his weight to push toward the officer. (Pet. 42.)

Petitioner surrendered one hand in response to an order to submit to handcuffs but then resisted, causing Officer A. Martinez in the control booth to activate a personal alarm. Hamner put his right hand around Petitioner's right shoulder, spinned Petitioner to his right, and placed him on his stomach while maintaining control of his left hand. Hamner ultimately placed Petitioner in handcuffs. (Pet. 46.)

A signed report reflects that Petitioner was given a copy of the rules violation report (CDC 115) on January 10, 2008. (Pet. 43.) Petitioner pled not guilty. (Pet. 42.)

A staff assistant was not assigned; however, Petitioner was assigned an investigative employee (IE) -- Correctional Officer D. Cardenas. Cardenas reported that on January 10, 2008, he interviewed Petitioner, who stated that he did not object to Cardenas' serving as his IE. Cardenas stated that Petitioner gave him three questions to ask witnesses (inquiries concerning whether Petitioner had resisted, how Officer Hamner handled the situation, and whether Petitioner appeared hostile and disrespectful). (Pet. 46.) However, Petitioner was unable to provide the IE with the names, CDC numbers, and housing of his witnesses; therefore, Cardenas was unable to question anyone. (Pet. 46.) Cardenas further reported that Petitioner told Cardenas that he did not resist the officer. There were no statements of inmate or staff witnesses. Petitioner did not request any evidence, information, or witnesses for the hearing, and he did not request that the reporting employee or IE appear. (Pet. 44.) A copy of Cardenas' report was given to Petitioner before the hearing along with a crime/incident report and a medical report of injury. (Pet. 44-45.)

The signed report of Senior Hearing Officer (SHO) D. B. Petrick reflects that on February 1, 2008, Petrick held the adjudication hearing, which Petitioner attended. (Pet. 45.)

SHO Petrick reported that Petitioner did not request any witnesses on the CDC 115A, IE report, or during the hearing; further, the SHO did not require the presence of any witnesses. (Pet. 45.) Petitioner did not request any ...


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