The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO
DISMISS WITHOUT LEAVE TO AMEND THE PETITION FOR WRIT OF
CORPUS FOR FAILURE TO STATE A COGNIZABLE CLAIM PURSUANT TO
28 U.S.C. § 2254 (DOC. 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
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 May 11, 2011.
I. Screening the Petition and Considering the Petition on the Merits Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (Habeas Rules) 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).
II. Failure to State a Cognizable Due Process Claim
Petitioner alleges that on August 7, 2008, while he was an inmate of the Pleasant Valley State Prison, he attempted to suggest a voluntary cell change based on problems he had experienced with his relatively new cellmate, Anglin, and his expectation of imminent physical conflict with Anglin. Petitioner reported the difficulties to Correctional Officer Barraza. Petitioner was moved, but his new cellmate, Larrimore, was also incompatible, so Petitioner informed prison staff, and Petitioner was sent to Sergeant Duty to discuss the matter. Petitioner informed Sgt. Duty that his difficulties with his former cellmate had resolved sufficiently to permit Petitioner to move back to his former cell, although Petitioner hoped Anglin would still be moved out. Petitioner asked Duty to reverse the "bed move." (Pet. 21, 19-21.)
Petitioner was charged with manipulation of staff on the ground that Petitioner had been involved in numerous physical altercations on the A-Yard and was using his past behavior to manipulate staff into moving his cellmate; it was only when Petitioner was moved from the first cell that he informed staff that Petitioner's issue with the old cellmate was not serious and could have been addressed later on the weekend. (Pet. 21-22.)
The Court has reviewed the petition, which includes apparently complete documentation of the pertinent disciplinary proceedings. The documentation reflects the rules violation report of Correctional Sergeant J. J. Duty dated August 12, 2008, which alleged Petitioner's attempt on August 7, 2008, to manipulate staff in moving Petitioner's initial cellmate, Anglin. (Pet. 38.) A copy of the report was given to Petitioner on August 18, 2008. (Pet. 35, 40.) A staff report of August 18, 2008, reflects that Petitioner was not assigned a staff assistant or an investigative employee because Petitioner did not meet the criteria. (Pet. 37.) Petitioner requested that Anglin, his initial cellmate, and another witness identified by number testify; however, there is no indication that he requested other witnesses. (Id.)
The report of Lieutenant N. Greene, Senior Hearing Officer (SHO), reflects that the disciplinary hearing was held on August 20, 2008. (Pet. 38-42.) The report states that Petitioner requested Correctional Officer Barraza and inmate Anglin as witnesses. (Pet. 40.) Petitioner did not request any other evidence. (Id.) Petitioner stipulated to the testimony of Officer Barraza, who was unavailable for the hearing. The stipulated testimony was that on the day of the episode, Barraza had spoken only with Petitioner and his cellmate about the incompatibility, and Anglin was moved to another cell. Anglin was asked if he wanted to live with Petitioner. Anglin replied, "I was cool, he wasn't, he came up with the idea and I told him to go ahead with it." (Id.) When asked if he and Petitioner had almost engaged in a fight, Anglin said, "yes and no, just arguing." Anglin confirmed that after Petitioner spoke with the officer, Anglin and Petitioner were not trying to work out their problems. (Pet. 40.)
The hearing officer determined that the preponderance of the evidence presented at the hearing substantiated the charge, and he found Petitioner guilty of violating Cal. Code Regs., tit. 15, § 3013. (Pet. 41.)*fn1 The evidence relied on included Sergeant Duty's report, which stated that after Petitioner reported his inability to get along with Anglin and the need to move Anglin because they could not be in the same cell, Officer Barraza told Petitioner that due to a lock-down, no unnecessary bed moves would be made, and Petitioner needed to wait until Saturday, which was designated for "Convenience Moves." (Id.) Petitioner replied that Barraza needed to move Anglin that day and that if something happened, Petitioner would sue Barraza. Petitioner was rehoused to prevent a physical altercation. Following his relocation, Petitioner approached staff and said he was not compatible with his new cellmate. Sgt. Duty interviewed Petitioner, who requested that the bed move be reversed because Petitioner felt he was in a worse situation because his new cellmate had a convenience move arranged, but Petitioner's move into the cell prevented it from happening. Sgt. Duty wrote:
Rosenblum [claimed] the issue between him and his old cellmate was resolved and they could have waited to the weekend to do a convenience move. Rosenblum explained the only reason he said what he did to Officer Barraza was to expedite the cell move. Rosenblum has been involved in numerous Physical Altercations while housed on Facility-A. It is apparent Rosenblum utilized his past behavior in an attempt to Manipulate Staff in moving his cellmate from 109 in Building Two and only when he was moved from the cell did he inform Staff the issue he had with his old cellmate was not serious and could have been addressed on the weekend. (Pet. 41.)
The hearing officer also relied on the stipulated testimony of Officer Barraza, who the hearing officer noted had personal knowledge of the events in question.
Petitioner denies that he told Sgt. Duty that the only reason he told Barraza what he did was to expedite the move.
(Pet. 46.) Further, Petitioner alleges that both the hearing officer and an Officer Garrison refused to allow Larrimore to be called as a witness. Petitioner asserts that Larrimore could have confirmed the complete ...