The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING THE PETITION FOR FAILURE TO STATE A CLAIM COGNIZABLE IN A PROCEEDING PURSUANT TO 28 U.S.C. § 2254 ) (DOC. 1) ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY ORDER DIRECTING THE CLERK TO CLOSE THE ACTION
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 August 1, 2011 (doc. 5). Pending before the Court is the petition, which was filed on July 15, 2011, and reassigned to the undersigned Magistrate Judge on October 17, 2011.
I. Screening the Petition
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).
The Court has reviewed the petition, which is over 330 pages in length. Petitioner, an inmate of the California Correctional Institution at Tehachapi, California (CCI), challenges his validation as an associate of the Black Guerrilla Family (BGF), which occurred on December 31, 2009, while Petitioner was an inmate of the California State Prison at Sacramento (CSP Sacramento). (Pet. 18.)
Petitioner raises the following claims in the petition: 1) officials of the California Department of Corrections and Rehabilitation (CDCR) have abused the prison gang validation procedure as a ruse to punish the Petitioner for exercising his constitutional right to file complaints regarding staff's criminal behavior within the CDCR (pet. 5, 21,); 2) CDCR and prison officials illegally read Petitioner's legal materials and word product out of his presence and without a court order to do so and used confidential information from his private attorney, Emily Maloney, concerning pending litigation against other CDCR agents to start a prison gang validation proceeding as a ruse to punish the Petitioner for filing grievances (id. at 7, 25); 3) CDCR and prison officials corruptly conspired to abuse the prison gang validation procedures as a ruse to punish the Petitioner for filing inmate grievances against CCI correctional staff in violation of the First Amendment and without a legitimate or valid penological purpose (id. at 29-30, 69-70); 4) prison officials used the gang validation procedure as a ruse to punish Petitioner for reading black militant literature that was otherwise allowed into the institution and which Petitioner had a First Amendment right to read, including specified titles concerning George Jackson and Black history (id. at 31); 5) CDCR and prison officials corruptly conspired to have Petitioner validated as an active associate of the BGF and to retain him in the Security Housing Unit (SHU) based on false, unreliable, and misleading information that was previously found insufficient pursuant to California regulations, including tattoos, reading materials on George Jackson, and a "Black Seeds" calendar for validation at CSP Sacramento, knowing that it would subject Petitioner to a risk of retaliation and retribution from other groups in prison who are opposed to the BGF, which resulted in the change of Petitioner's release date from June 2013 to October 2016 (id. at 32, 54); 6) Petitioner has a protected liberty interest not to be placed into the SHU for an indeterminate term based on a false and retaliatory prison gang validation which resulted from inadequate procedural safeguards in the validation process and in the procedures governing periodic review of inmates assigned to indeterminate terms in the SHU for gang affiliation, and Petitioner's right to due process of law was violated by the sentence to an indeterminate SHU term without ascertainment of whether the information relied upon had some indicia of reliability, without the support of some evidence in the record, and without an opportunity to present his views to the decision maker, which was the "IGI" (id. at 55, 57-58, 66-68); and 7) Petitioner was subjected to an ex post facto law by the application to him of Cal. Pen. Code §§ 2933(A)-(B) and 3057(D), which were amended and took effect on January 25, 2010, and associated regulations and instructional memoranda of the CDCR, which increased the amount of credits some prisoners earn, but which are not applicable to prison gang members placed in the SHU (id. at 56, 61-62).
Petitioner appears to allege that as a direct result of the false prison gang validation, his release date has been changed from June 2013 to October 2016; however, it appears that some words are missing from the pertinent sentence. (Id. at 54.) In any event, the process or mechanism by which the gang validation affected Petitioner's release date is not stated except for indirect indications that Petitioner could not earn conduct credits while in the SHU.
Petitioner admits that he is a member of the Project Watts Crips with a moniker of "Eightball" who has never dropped out or debriefed; however, he alleges that he was not a member of the BGF and alleges that he cannot be a member of two gangs at the same time. (Pet. 18-20, 34.) He alleges that he has no desire to become a member or associate of the BGF and that the prison has documented that the BGF and Crips are enemies within the CDCR. (Id. at 33.) He alleges that he was previously deemed a reliable source concerning misconduct of correctional officers within the institution. (Id. at 36-37.)
Petitioner requests the following relief: expungement from his "C" file of the false, unreliable and insufficient information to validate his active association with the BGF; release from the SHU; and return of various materials allegedly taken wrongfully by CDCR agents, including his reading materials, all legal documents relating to pending litigation against CDCR agents, all investigative materials sent to Petitioner from attorney Emily Maloney concerning two cases pending in the courts, and information concerning names and addresses of inmate and staff who were witnesses in the litigation or witnesses to serious misconduct within the CDCR. (Pet. 72-73.)
III. Subject Matter Jurisdiction
This Court has a duty to determine its own subject matter jurisdiction, and lack of subject matter jurisdiction can be raised on the Court's own motion at any time. Fed. R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n.3 (9th Cir. 1982) ...