ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 9, 2011, respondent filed a motion to dismiss the petition. Petitioner opposes the motion. Upon review of the motion, the documents in support and opposition, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Petitioner challenges the revocation of thousands of days of good-time credits by prison officials, credits which he argues entitle him to release from prison in November 2012. Petitioner contends that since 1998, the California Department of Corrections and Rehabilitation ("CDCR") and the California government have conspired to falsely issue 73 rules violations reports ("RVR") that deprived him of 4,745 days of good-time credits and thereby extended his period of incarceration.
On April 5, 2010, petitioner filed an inmate grievance challenging in a single form all 73 RVRs that resulted in the forfeiture of good-time credits. See Doc. No. 1 at 50-51.
Petitioner's appeal was denied at the first, second and director's levels of review. See id. at 47-49, 52-56.
Petitioner then filed a petition for writ of habeas corpus in the Sacramento County Superior Court, which was denied on February 8, 2011 as procedurally defaulted on the grounds that (a) petitioner failed to submit any documentation of any of his disciplinary proceedings, (b) he failed to exhaust his administrative remedies for each of the disciplinary decisions and (c) his single administrative appeal attempting to challenge all of the forfeited credits was improper pursuant to CDCR regulations that specify the process by which inmates may challenge credit forfeitures. Doc. No. 1 at 33-35.
Petitioner appealed to the California Court of Appeal, Third Appellate District, which summarily denied the petition on February 24, 2011. Doc. No. 1 at 77.
Petitioner appealed to the California Supreme Court. See Doc. No. 1 at 76. On April 11, 2011, the Clerk of the California Supreme Court returned to petitioner the documents filed by him on April 5, 2011 with a note stating that the "court lost jurisdiction to act on any petition for review March 24, 2011. (See Cal. Rules of Court, rule 8.500(e).) Without this jurisdiction, this court is unable to consider your request for legal relief." Id.
Petitioner initiated this action on April 18, 2011. On November 14, 2011, respondent filed a motion to dismiss. Petitioner filed an opposition on November 22, 2011. On December 6, 2011, respondent filed a motion for extension of time and a reply. The motion for extension of time will be granted.
Also pending are petitioner's (1) November 22, 2011 motion for temporary restraining order, in which he seeks an order directing respondent to modify his yard classification status, and (2) December 14, 2011 motion to compel discovery.
A. Respondent's Motion to Dismiss
Respondent seeks dismissal of the petition on the grounds that the petition fails to state a claim and is procedurally defaulted. Even assuming for the sake of argument that the claims set forth in the pending petition are cognizable, the motion to dismiss should be granted because petitioner's claims are unexhausted.
As a preliminary matter, petitioner challenges respondent's filing of a motion to dismiss instead of an answer as directed by this court's October 11, 2011 order. The Ninth Circuit, however, has allowed respondents 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) ...