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Timothy Bertram v. Warden

January 26, 2012

TIMOTHY BERTRAM,
PETITIONER,
v.
WARDEN, CCI TEHACHAPI,
RESPONDENT.



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

ORDER DISMISSING THE PETITION WITHOUT LEAVE TO AMEND (DOC. 1) ORDER DECLINING TO ISSUE A ) CERTIFICATE OF APPEALABILITY AND DIRECTING THE CLERK TO CLOSE THE ACTION ORDER DIRECTING THE CLERK TO SEND TO PETITIONER A CIVIL RIGHTS COMPLAINT FORM

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. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on January 23, 2012 (doc. 5). Pending before the Court is the petition, which was filed on January 12, 2012.

I. Screening the Petition

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 to the petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir. 1997).

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).

A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

Here, Petitioner alleges that while incarcerated at the California Correctional Institution (CCI) at Tehachapi, California, he was assessed a loss of 270 days of credit and was assigned to be housed in the secured housing unit (SHU) for fifteen months as a result of a disciplinary finding that Petitioner battered a fellow inmate on July 4, 2009, and caused serious injury. Petitioner alleges that various procedures employed by the prison staff violated state regulations and his right to due process of law. In support of the petition, Petitioner submitted documentation of the disciplinary process, his administrative appeals, and portions of the proceedings in which he appears to have exhausted his state judicial remedies with respect to the claims raised in the petition.

Petitioner seeks to have the disciplinary findings reversed, his credit restored, and all prison staff held accountable for their actions.

II. Failure to Name a Proper Respondent Petitioner alleges that he is an inmate of the California Men's Colony East at San Luis Obispo, California (CMC). (Pet. 1.) However, Petitioner names as the Respondent in this proceeding the warden at the California Correctional Institution at Tehachapi, California (CCI).

Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody. A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). The warden of the penitentiary where a prisoner is confined constitutes the custodian who must be named in the petition, and the petition must be filed in the district of confinement. Johnson v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003).

Although a petitioner may be given leave to file an amended petition naming a proper respondent, in this instance the petition suffers from additional defects which cannot be cured. Accordingly, the Court notes the defect but proceeds to consider the additional defects in the petition which cannot be cured.

III. Conditions of Confinement

Petitioner contends that various correctional officers delayed in responding, or in failing to respond, to his request for a "bunk move," which in turn precipitated an incident during which Petitioner was found to have hit a fellow inmate in the face with his fist and to have caused a wound requiring nine (9) sutures. (Pet. 3)

Petitioner complains that the prison employees were unprofessional, acted without regard to their training, instigated the incident, and did nothing to prevent it, all in violation of Cal. Code Regs., tit. 15, §§ 3286, 3395, 3270-71, and 3391.*fn1 (Id. at 10.) Petitioner also complains that specified officers threatened that they would make Petitioner's life a living hell and would make sure he had problems until he paroled; further, Petitioner was threatened with being sent from his special needs yard (SNY) to mainline housing, which would have resulted in Petitioner's being stabbed by other inmates. (Id. at 8-9.) Petitioner alleges that the dorm where he was housed at the time of the incident was overcrowded to the point of dangerousness; Petitioner was being bullied and harassed by a group of Hispanic inmates allegedly due to a deformity (blindness in his right eye, which also wanders over to the side), and when he asked for help from prison officials, no help was given. (Id. at 8.) Petitioner alleges that these actions violated his right to due process of law.

A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)(quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption.

In contrast, a civil rights action pursuant to 42 U.S.C. § 1983 is the proper method for a prisoner to challenge the conditions of that confinement. McCarthy v. Bronson, 500 U.S. 136, 141-42 (1991); Preiser, 411 U.S. at 499; Badea, 931 F.2d at 574; Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases, 1976 Adoption.

The claims specified above concern Petitioner's conditions of confinement. Thus, Petitioner is not entitled to habeas corpus relief with respect to such allegations, and the petition must be dismissed.

Should Petitioner wish to pursue these claims, he must do so by way of a civil rights complaint pursuant to 42 U.S.C. § 1983. The Clerk will be directed to send an appropriate complaint form to Petitioner.

IV. State Law Claims

Petitioner complains that prison staff violated specific regulations governing prison disciplinary proceedings by empowering a group of hispanic inmates to have control over Petitioner in violation of Cal. Code Regs., tit. 15, § 3022; finding that he committed a battery causing serious injury in violation of § 3323(b)(3), whereas a preponderance of the evidence supported only a finding of fighting in violation of § 3323(f)(10); and failing to assign a staff assistant pursuant to §§ 3315(d)(2) and 3318(b)(2)(A).

He also complains that the initial supervisor's review of the rules violation report (RVR) occurred on July 12, 2009, whereas the RVR itself was not written until July 13, 2009; thus, the supervisor's review was an empty ritual. (Pet. 6:1-9.)

Petitioner complains that pursuant to §§ 3315(d) and 3318(a), he was entitled to an investigative employee (IE) to whom Petitioner assented; however, Officer Hernandez was assigned and agreed to by Petitioner, but Officer T. Clark wrote the IE report, an allegedly illegal procedure to which Petitioner did not consent. (Id. at 7.)

Petitioner alleges that the senior hearing officer (SHO) who conducted the disciplinary hearing was not experienced in RVR hearings as required by § 3310(d). (Id. at 10.) He alleges that the senior hearing officer's failure to allow witnesses he requested to be present at the hearing, including the reporting employee, violated his rights under § 3315(e). (Pet. 7.) Petitioner further alleges that pursuant to § 3320(l), he had a right to present documentary evidence at his hearing, which was denied. Finally, Petitioner alleges that he has been diagnosed with mental illness, a mitigating circumstance that was totally ...


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