The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS (Doc. 11) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS
Petitioner is a state prisoner proceeding pro se on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On October 27, 2011, Petitioner filed the instant petition. (Doc. 1). The Court ordered Respondent to file a response to the petition on November 2, 2011. (Doc. 5). Respondent filed the instant motion to dismiss the petition on January 5, 2012, contending that the Court lacks habeas jurisdiction because sanctions imposed at the grievance proceeding upon which Petitioner's claims are premised will not affect the fact or duration of Petitioner's sentence. (Doc. 11). On January 25, 2012, Petitioner filed his opposition to the motion to dismiss. (Doc. 12).
A. Procedural Grounds for Motion to Dismiss Respondent has filed the instant motion to dismiss the petition for lack of habeas jurisdiction. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court . . . ." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's to file a motion to dismiss in lieu of an answer if the motion attacks the pleadings for failing to exhaust state remedies or being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) (using Rule 4 to evaluate motion to dismiss petition for failure to exhaust state remedies); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (using Rule 4 as procedural grounds to review motion to dismiss for state procedural default); Hillery v. Pulley, 533 F.Supp. 1189, 1194 & n.12 (E.D. Cal. 1982) (same). Thus, a Respondent can file a motion to dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery, 533 F. Supp. at 1194 & n. 12.
In this case, Respondent's motion to dismiss is based on a lack of habeas jurisdiction. Because Respondent's motion to dismiss is similar in procedural standing to a motion to dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal answer, the Court will review Respondent's motion to dismiss pursuant to its authority under Rule 4.
B. Lack of Habeas Jurisdiction.
Petitioner was convicted in the Los Angeles County Superior Court in 1997 of three counts of first degree residential burglary and sentenced to an indeterminate term of eighty-five-years-to-life under California's Three Strikes Law. (Doc. 11, Ex. A). On December 1, 2009, prison officials conducted a disciplinary hearing after which it was found that Petitioner had violated a prison rule by committing battery upon another inmate with a weapon, i.e., a radio, resulting in serious bodily injury. (Doc. 11, Ex. 2). As a result of that rules violation, Petitioner was assessed a 360-day credit loss and ten days' "loss of yard." (Id.). Petitioner alleges that, although not mentioned in the hearing officer's report, Petitioner was subsequently confined in the Secure Housing Unit ("SHU") for a period of fifteen months as a result of this incident. (Doc. 12, p. 3).
Petitioner raises three grounds for relief in the first amended petition: (1) the disciplinary hearing violated Petitioner's due process rights by failing to "test the reliability" of a confidential informant before using the informant's testimony as evidence; (2) Petitioner was denied his Fifth and Fourteenth Amendment rights when his witness was not called and when certain requested evidence was not produced at the hearing; and (3) Petitioner was punished by his classification committee prior to the finding of guilt, in violation of his due process rights. (Doc. 1, pp. 4-5).
Respondent's motion to dismiss argues that this Court lacks habeas jurisdiction because the sanctions complained of, i.e., loss of 360-days' credits, do not impact the fact or duration of Petitioner's sentence as an inmate serving an indeterminate sentence under California's Three Strikes Law. For the reasons set forth below, the Court agrees with Respondent and recommends that the petition be dismissed.
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 . . . ." 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); Hill v. McDonough, 547 U.S. 573, 579, 128 S.Ct. 2096 (2006)(challenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases.
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. While the United States Supreme Court has not addressed whether a challenge to a condition of confinement may be brought in habeas corpus, see Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir. 2004), the Ninth Circuit has held that "habeas jurisdiction is absent, and a § 1983 action proper, where a ...