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Johnny Clifford Jackson v. Gary Swarthout


August 31, 2011



Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner requests appointment of counsel. Respondent moves to dismiss the petition on the grounds that it fails to state a claim cognizable in a federal habeas corpus petition. For the reasons that follow, the undersigned denies the request for counsel and recommends that the motion to dismiss be granted but that petitioner be granted leave to file an amended petition.

I. Background

The petition concerns disciplinary action taken against petitioner in January 2008 for allegedly failing to report to work. Dckt. No. 1 at 5-9.*fn1 On January 29, 2008, petitioner was found guilty of refusing to work and was assessed a loss of 30 days' credit, among other punishments. Id. at 28 (Ex. B). Petitioner alleges that he was deprived of due process at the disciplinary hearing because the hearing officer refused to call witnesses and that he was further deprived of due process and equal protection because the alleged infraction was minor and should have resulted in progressive disciplinary action rather than "a CDC-115 for violation of not going to work for missing one day." Id. at 9.

II. Request for Counsel

In his opposition to respondent's motion to dismiss, petitioner requests that the court appoint him counsel. Dckt. No. 22 at 3. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appoint counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing § 2254 Cases. The court does not find that the interests of justice would be served by the appointment of counsel at this stage of the proceedings.

III. Respondent's Motion to Dismiss

Respondent moves to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts for failure to state a cognizable claim. This court has authority under Rule 4 to dismiss a petition if it "plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court . . . ." As a corollary to that rule, the court may also consider a respondent's motion to dismiss, filed in lieu of an answer, on the same grounds. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate a motion to dismiss for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as the procedural vehicle to review a motion to dismiss for state procedural default). Respondent argues that petitioner's claim is not cognizable in a habeas petition because petitioner has not established that issuance of the writ (requiring that the disciplinary conviction be expunged) would necessarily shorten the duration of his confinement.

"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev Stat § 1979, as amended, 42 U.S.C. § 1983. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . .; requests for relief turning on circumstances of confinement may be presented in a § 1983 action." Muhammad v. Close, 540 U.S. 749, 750 (2004) (citing Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)).While not expressly framed as such, respondent's argument is a jurisdictional one -- respondent claims that success on the petition will not impact petitioner's custody and thus the court is without power to hear the case under the habeas statute. See Docken v. Chase, 393 F.3d 1024, 1028-29 (9th Cir. 2004) (treating the issues of whether a claim that could potentially impact the duration of custody was cognizable or was within the court's federal habeas jurisdiction as interchangeable). The party seeking to invoke the jurisdiction of a federal court bears the initial burden of pleading facts sufficient to establish jurisdiction. McNutt v. Gen'l Motors Acceptance Corp., 298 U.S. 178, 182 (1936); Jackson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1074 (9th Cir. 2005); United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994). Thus, the court must determine whether petitioner has alleged sufficient facts in the petition to show that the challenged actions impacted his custody in a manner sufficient to invoke the court's jurisdiction under the habeas statute.

This determination is complicated by a current lack of clarity in case law regarding whether a potential, rather than certain, impact on custody is sufficient to invoke federal habeas jurisdiction. While the U.S. Supreme Court has repeatedly held that a prisoner who seeks immediate or speedier release from custody (alleging a definite impact on custody in what is often termed a "core" habeas challenge) must pursue his case through a habeas petition rather than a § 1983 action, the Court has not explicitly held that a prisoner whose challenge might not result in speedier release must press his case under § 1983 rather than a habeas petition. See Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004) (noting that, "although Supreme Court case law makes clear that § 1983 is not available where a prisoner's claim 'necessarily' implicates the validity or duration of confinement, it does not set out any mirror-image limitation on habeas jurisdiction."). However, where a challenge does not even indirectly implicate the fact or duration of the petitioner's confinement, the Ninth Circuit Court of Appeals has concluded that the challenge is not cognizable in a habeas petition.*fn2 Crawford v. Bell, 599 F.2d 890, 891-92 (9th Cir. 1972) (holding that a challenge to allegedly cruel and unusual prison conditions could not be brought via habeas); see id. at 891 ("[T]he writ of habeas corpus is limited to attacks upon the legality or duration of confinement."); see also Muhammad, 540 U.S. at 754-55 (stating that the plaintiff, who brought a retaliation claim against a prison official, had raised no claim on which habeas relief could have been granted on any recognized theory).

Generally, a prisoner challenging a disciplinary action with an attendant loss of time credits must pursue the challenge in a habeas petition, because a decision in the case in the prisoner's favor would require restoration of the lost time credits and would therefore accelerate the inmate's date of release, making the case the type of "core" habeas challenge that must be pursued by habeas petition. Preiser, 411 U.S. at487-88, 490. \\\ Here, however, petitioner is a life-term inmate who passed his Minimum Eligible Parole Date ("MEPD") in 1977. Resp.'s Mot. to Dismiss, Ex. 1. Respondent argues that, at the time the discipline challenged here was imposed, petitioner was serving the portion of his sentence in which the duration of his confinement is controlled solely by the Board of Parole Hearings ("BPH"). See Cal. Code Regs. tit. 15, §§ 2280-2292. According to respondent, the credit losses assessed against petitioner at his hearing concerned a type of time credit which could only advance petitioner's MEPD but could not impact the BPH's determination of when to release petitioner.*fn3 See Cal. Pen. Code § 2931. Because petitioner's MEPD had long passed at the time of the discipline challenged here, respondent argues, expungement of the disciplinary finding and accordant restoration of the time credits would not advancepetitioner's release.

Petitioner does not contend that restoration of the credit losses would directly advance his release date or otherwise challenge respondent's characterization of California's parole-release system.Accordingly, the undersigned accepts respondent's argument that restoration of the lost credits here would not itself advance petitioner's date of release. This fact places petitioner's case in the same position as that of a habeas petitioner who challenges a disciplinary action that carries no credit loss. Prisoners in this situation often argue that their disciplinary convictions will nevertheless impact the duration of their confinement because they provide a basis on which the BPH may deny parole.*fn4 Thus, to rule on respondent's motion to dismiss, the court must determine whether habeas jurisdiction exists when a petitioner challenges prison discipline that will possibly, but not definitely, impact the duration of his confinement by influencing the decision of the relevant parole authority on whether and when to grant the petitioner conditional release.

Courts within the Ninth Circuit have not responded uniformly to this issue. Compare, e.g., Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) ("Habeas corpus jurisdiction . . . exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole."); Hardney v. Carey, No. CIV S-06-0300 LKK EFB P, 2011 U.S. Dist. LEXIS 35603, at *18-22 (E.D. Cal. Mar. 31, 2011) (recommending that the district court find that a challenge to a disciplinary conviction carrying no credit loss was cognizable in habeas because of its likely impact on parole eligibility, adopted in full by district court order dated June 6, 2011); Johnson v. Swarthout, No. CIV S-10-1568 KJM DAD P, 2011 U.S. Dist. LEXIS 43798, at *4-8 (E.D. Cal. Apr. 22, 2011) (same); and Silva v. Cal. Dep't of Corr., No. CIV S-03-1508 DFL GGH P, 2005 U.S. Dist. LEXIS 32046, at *2-3 (E.D. Cal. Dec. 9, 2005) (same, adopted in full by 2006 U.S. Dist. LEXIS 3661 (E.D. Cal. Jan. 31, 2006)) with Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003) (stating that "habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence."); Everett v. Yates, No. CIV F-0150 AWI GSA HC, 2011 U.S. Dist. LEXIS 23224, at *2-5 (E.D. Cal. Mar. 8, 2011) (recommending the dismissal of a habeas petition challenging a disciplinary conviction with no attendant credit loss, because the potential impact of the conviction on the petitioner's parole prospects was "entirely speculative"); and Perrotte v. Salazar, No. ED CV 06-00539-JOHN (VBK), 2010 U.S. Dist. LEXIS 140385, at *9-16 (C.D. Cal. Nov. 8, 2010) (same, adopted in full by 2011 U.S. Dist. LEXIS 6606 (C.D. Cal. Jan 24, 2011)).*fn5 As is apparent from these cases, courts within this circuit have varied when addressing habeas challenges to prison disciplinary decisions that would have an impact on the duration of confinement only to the extent that they may affect the petitioners' parole eligibility. A brief discussion of the apparent source of the disagreement and the various approaches courts have taken is appropriate.

Three Ninth Circuit cases are central to the controversy: Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003), and Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004). In Bostic, the court of appeals reviewed district court dismissals of ten separate habeas petitions filed by the same petitioner, challenging nine prison disciplinary actions taken against him. 884 F.2d at 1269. Prison officials had assessed a forfeiture of good-time credits for some of the infractions, but the remainder did not carry a loss of time credits -- only a term of segregated housing. Id. at 1269. In each of the petitions, the petitioner sought expungement of the infractions from his disciplinary record. Id. The court "assume[d]" that habeas jurisdiction existed over all the petitions, even those challenging discipline with no attendant credit loss, stating:

Habeas corpus jurisdiction is available under 28 U.S.C. § 2241 for a prisoner's claim that he has been denied good time credits without due process of law. [citations] Habeas corpus jurisdiction is also available for a prisoner's claims that he has been subjected to greater restriction of his liberty, such as disciplinary segregation, without due process of law.[*fn6 ] [citations] Habeas corpus jurisdiction also exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole. [McCollum v. Miller, 695 F.2d 1044, 1047 (7th Cir. 1982)].

Id. at 1269 (emphasis added). The court did not elaborate on when expungement would be "likely to accelerate" parole-eligibility.*fn7

The court revisited Bostic's statements on habeas jurisdiction in Ramirez. 334 F.3d at 858-59. In Ramirez, a prisoner brought a civil rights action under § 1983 rather than a habeas petition to challenge the procedures used in imposing disciplinary sanctions of ten days of disciplinary detention, 60 days loss of privileges (but no loss of time credits), and a referral to administrative segregation. Id. at 852-53. He sought expungement of the disciplinary record from his file and an injunction prohibiting the state from considering it "when they fix plaintiff's terms and decide whether plaintiff should be released on parole." Id. at 859 n.6. The district court dismissed the case, finding it barred by Heck's favorable termination rule after determining that success in the case would necessarily imply that the disciplinary finding was invalid. Id. at 852; see supra n.2.

The Court of Appeals reversed, holding that the favorable termination rule does not apply to prison disciplinary sanctions that do not necessarily affect the fact or length of a prisoner's confinement. Id. at 854-58; see supra n.2. The court rejected the state's Bostic-based argument that the plaintiff's claim that his disciplinary hearing violated due process was "logically inseparable from an attack on the outcome of that hearing, and that a judgment in his favor would necessarily imply the invalidity of his disciplinary conviction." Id. at 859. The court reasoned that the favorable termination rule applies only if success in the § 1983 action would necessarily imply the invalidity of a disciplinary finding and necessitate a reduction in the plaintiff's length of confinement. Id. The state had failed to show that expungement of the disciplinary finding would necessarily accelerate the plaintiff's release, because the parole board could still deny parole on the basis of other factors. Id. ("As Ramirez's suit does not threaten to advance his parole date, his challenge to his disciplinary hearing is properly brought under § 1983.").

In the course of its analysis, the court discussed Bostic in some detail: Bostic does not hold that habeas corpus jurisdiction is always available to seek the expungement of a prison disciplinary record. Instead, a writ of habeas corpus is proper only where expungement is "likely to accelerate the prisoner's eligibility for parole." Bostic, 884 F.2d at 1269 (emphasis added). . . . Bostic thus holds that the likelihood of the effect on the overall length of the prisoner's sentence from a successful § 1983 action determines the availability of habeas corpus."

Id. at 858. From this, the court made the following leap, assuming that the courts' jurisdiction over habeas petitions and their jurisdiction over § 1983 actions are mutually exclusive: "[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence." Id. at 859 (emphasis added). For ease of discussion, this quote will be referred to herein as the "mutual exclusivity rule." This language has created uncertainty, because challenges to prison conditions that will necessarily shorten the prisoner's sentence fall squarely within the "core" of habeas jurisdiction identified in Preiser, and the Ramirez language indicates that only "core" habeas cases can be brought in federal habeas petitions. It is important to recall that Preiser simply held that "core" cases had to be brought in habeas petitions but did not hold that habeas jurisdiction was limited to such cases. However, Bostic -- quoted with apparent approval by the Ramirez panel -- squarely found habeas jurisdiction to exist in a non-"core" situation, where success would not necessarily spell earlier release, but was merely likely to accelerate parole-eligibility. Thus, Ramirez's mutual exclusivity rule quoted above appears inconsistent both with the opinion's prior reliance on Bostic for the proposition that "the likelihood of the effect on the overall length of the prisoner's sentence from a successful § 1983 action determines the availability of habeas corpus" and with Bostic itself.

One year after Ramirez, the court again visited the intersection of habeas and § 1983 in Docken. 393 F.3d at 1026-31. In Docken, as in Bostic, the court reviewed the dismissal of a habeas petition for want of jurisdiction. Id. at 1025, 1026. Unlike Bostic, the petitioner in Docken did not challenge a prison disciplinary finding, but rather the timing of his parole-eligibility reviews. Id. at 1025-26. The district court had concluded that the claim could only be brought under § 1983 rather than habeas, because the plaintiff's success in the case would not "entitle" him to release, just an earlier eligibility review. Id.

In reversing that conclusion, the Court of Appeals discussed at length U.S. Supreme Court and Ninth Circuit precedent. The first conclusion the court drew from that precedent was that, "although Supreme Court law makes clear that § 1983 is not available where a prisoner's claim 'necessarily' implicates the validity or duration of confinement, it does not set out any mirror-image limitation on habeas jurisdiction." Id. at 1028. The court, citing Bostic, noted that its own precedent held that habeas jurisdiction was available in some non-"core" circumstances. See id. ( "In [Bostic], for example, we held that 'habeas corpus jurisdiction . . . exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole.'").

Importantly, in speaking of claims only "likely to accelerate" eligibility for parole, Bostic defined a class of suits outside the "core" habeas claims identified in Preiser. Success on the merits in such cases would not "necessarily" implicate the fact or duration of confinement. Instead, such claims have, at best, only a possible relationship to the duration of a prisoner's confinement, as eligibility for parole is distinct from entitlement for parole.

Id. at 1028-29. Thus, the court recognized that, under Bostic, habeas jurisdiction was proper even where success on the claim would not necessarily shorten the plaintiff's sentence -- a view of habeas jurisdiction squarely at odds with the mutual exclusivity rule announced in Ramirez. In fact, the Docken court went further than Bostic, finding cognizable not only those challenges that, if successful, were "likely to accelerate" release, but also those that, if successful, "could potentially affect the duration of . . . confinement." Id. at 1031 (emphasis added).

Unfortunately, the Docken panel did not expressly resolve the inconsistency between Bostic and Ramirez. It did attempt to distinguish Ramirez's mutual exclusivity rule in a footnote by stating that it was limited to the circumstances presented in that case, where the prisoner challenged "internal disciplinary procedures" and consequent administrative segregation that did not "deal with the fact or duration of his confinement." Id. at 1030 n.4. A close reading of Ramirez reveals that the case cannot be distinguished from Bostic on those grounds, however. As in Ramirez, the petitioner in Bostic challenged at least one prison disciplinary action that resulted in administrative segregation but no loss of time credits. Importantly, in both cases, the prisoners sought expungement of a disciplinary finding from their records, and the prisoner in Ramirez specifically argued that the challenged disciplinary findings would have an adverse impact on his parole eligibility. Ramirez, 334 F.3d at 859 n.6; Bostic, 884 F.2d at 1269. Thus, both cases "deal[t] with the fact or duration of confinement" in the same manner.

Here, this court must decide whether to follow Ramirez's mutual exclusivity rule or the approach of Bostic and Docken. Some district courts that have taken the latter route have reasoned that Ramirez's mutual exclusivity rule was dictum and thus not binding. E.g., Foster v. Washington-Adduci, No. CV 09-07987-PSG (DTB), 2010 U.S. Dist. LEXIS 41578, at *12 (C.D. Cal. Mar. 24, 2010); Hickey v. Adler, No. 1:08-cv-00826-JMD-HC, 2009 U.S. Dist. LEXIS 67064, at *6 n.4 (E.D. Cal. July 27, 2009); Dutra v. Cal. Dep't of Corr. & Rehab., No. C 06-0323 MHP, 2007 U.S. Dist. LEXIS 82377, at *16-17 (N.D. Cal. Nov. 6, 2007); Drake v. Felker, No. 2:07-cv-00577 (JKS), 2007 WL 4404432, at *2 (E.D. Cal. Dec. 13, 2007). The undersigned agrees with that reasoning. The mutual exclusivity rule was not essential to the holding in Ramirez, which held simply that Heck's favorable termination rule does not apply to § 1983 cases where success in the action would not necessitate earlier release. That holding is not contrary to, and may coexist beside, Docken's conclusion that § 1983 and habeas are not mutually exclusive but instead may both be available to prisoners in some instances, specifically in those challenges that implicate the duration of confinement but would not necessarily, if successful, result in speedier release.*fn8

Accordingly, the court finds that, under Bostic and Docken, habeas jurisdiction exists over the instant petition if, from the facts as pleaded, it appears that expungement of the disciplinary action challenged by petitioner could potentially accelerate petitioner's release. However, a review of the petition reveals that petitioner has failed to allege facts sufficient to show that success on his claims could accelerate his release. Thus, the factual allegations fail to invoke the court's jurisdiction under the federal habeas statute. Accordingly, the undersigned recommends that the court grant respondent's motion to dismiss, but with leave to amend. See Davis v. Haviland, No. CIV S-10-1029 KJM DAD P, 2011 U.S. Dist. LEXIS 14451, at *11 (E.D. Cal. Feb. 4, 2011). If petitioner elects to file an amended petition, he should include all facts supporting his claim that expungement of the discipline could accelerate his release on parole. (For example, petitioner should allege the dates of any parole suitability hearings at which the disciplinary action was considered, any comments made by the BPH at those hearings suggesting the impact of the disciplinary action on the decision to deny parole, and any other supporting facts.)

IV. Mootness

Although potentially within the jurisdiction of the habeas statute for the reasons just discussed, it is possible that petitioner's claims are nevertheless moot and are thus outside the court's jurisdiction under Article III of the U.S. Constitution. Under Article III, § 2, a federal court's jurisdiction is limited to those cases which present "cases-or-controversies." Spencer v. Kemna, 523 U.S. 1, 7 (1998). In habeas actions, the case-or-controversy requirement mandates that a petitioner must have suffered, or be threatened with, an actual injury traceable to the respondent and redressable by issuance of the writ. See id. Respondent does not argue that petitioner's claims are moot, but federal courts "have an independent duty to consider" mootness sua sponte. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004). Like jurisdiction under the habeas statute, it is petitioner's obligation to allege facts sufficient to show that his claim is within the court's power under Article III. Jackson, 399 F.3d at 1074.

In general, a habeas petition challenging a prison disciplinary action no longer presents such a case or controversy, and therefore becomes moot, when the punishment for the action has been withdrawn or completed at the time of the petition. See Wilson v. Terhune, 319 F.3d 477, 479, 481-82 (9th Cir. 2003). Where the petitioner can show that so-called "collateral consequences" flow from the disciplinary action (i.e., circumstances beyond the punishment imposed that constitute an actual injury), however, the case remains justiciable. Id. at 479-80; see Spencer, 523 U.S. at 14-16. This court must therefore determine whether petitioner has alleged facts showing that the disciplinary sanctions against him have not yet been completed or that collateral consequences of the disciplinary action cause his case to remain live.

The petition reveals that the punishment imposed on petitioner at the January 29, 2008 disciplinary hearing consisted of: (1) the 30-days loss of time credits discussed above; (2) referral to the Institutional Classification Committee for placement in the Secured Housing Unit for an unspecified amount of time; (3) loss of privileges for 90 days (from January 29, 2008 to April 28, 2008); and (4) being counseled and advised of expectations. Dckt. No. 1, Pet. at 28 (Ex. B). The petition in this case was filed on March 1, 2010, long after the expiration of the term of lost privileges. The loss of time credits will not impact petitioner unless it is used by the BPH to deny him parole. It is unclear whether petitioner remains subject to incarceration in SHU or otherwise continues to be subjected to punishment for the disciplinary charge. Thus, the undersigned recommends that the court order petitioner, in any amended petition, to allege facts showing that his case is not moot, either because he remains subject to the discipline imposed on January 29, 2008 or because that discipline carries collateral consequences.*fn9

V. Order and Recommendation

Accordingly, it is hereby ORDERED that petitioner's request for counsel is denied. It is further RECOMMENDED that respondent's November 15, 2010 motion to dismiss be granted, but that petitioner be granted leave to file an amended petition within 30 days of any order adopting these recommendations including factual allegations showing: (1) that success on petitioner's claims could accelerate his release and (2) that petitioner remains subject to the discipline imposed on January 29, 2008 or that collateral consequences flow from that discipline which prevent the case from being moot.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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