FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the grounds that it fails to state cognizable ground for federal habeas relief. For the following reasons, the motion to dismiss must be granted.
Petitioner challenges a disciplinary conviction that was placed in his California Department of Corrections central file. Id. at 7. He alleges the following facts. He had a job as a law library clerk at his prison; as part of his job duties, he used a computer. Id. His supervisor,
C. Hammond, had authorized petitioner to "practice on the computer" and "create limited religious documentation." Id. at 8. Correctional officer Delacruz, the security officer for the educational department, did not supervise petitioner, and never gave any work-related instructions to petitioner. Id. at 8.
Petitioner filed a personnel complaint against a captain who had confiscated religious materials from him. Id. Two days after the captain was interviewed in connection with the complaint, an officer who worked directly under the captain ordered officer Delacruz to look at the computer petitioner was using. Id. The captain was also present during the inspection of the computer. Id.
Officer Delacruz gave petitioner a serious disciplinary report for having personal documents on the computer and removed him from his library job. Id. at 9. The charge was later reduced to a disciplinary infraction. Id. The disciplinary conviction, which was ostensibly based on Cal. Code Regs. tit. 15, § 3041(d), which states "Inmates assigned to educational, vocational, or other training programs must cooperate with the instructor or the person in charge, and must comply with instructions, and all requirements in the assigned activity," remains in petitioner's central file. Id. at 11.
Petitioner contends that section 3041(d) is inapplicable because Delacruz was not petitioner's supervisor, and petitioner's supervisor had allowed petitioner to engage in limited personal use of the computer. Id. at 10. Moreover, petitioner contends that there is no prison rule or regulation that prohibits having personal documents on the computer, and there was no such prohibition in his work contract. Id. at 10-11. Petitioner writes, "Prison officials in this case just arbitrarily made up a rule, and then negatively imposed it on petitioner, even in the face of facts that petitioner's supervisor authorized his conduct." Dckt. No. 13 at 2.
He contends that the disciplinary findings "potentially increased" the length of his sentence, as the Board of Parole Hearings often relies on disciplinary reports to deny parole. Id. Although he was removed from his prison job as a result of the disciplinary report, petitioner writes that he is "focused on the [expungement of the] disciplinary documentation . . . from his file, not his prison job or program," as he has now been moved to another prison and therefore cannot get his job back. Id. at 3.
II. Respondent's Motion to Dismiss
Respondent moves to dismiss the petition pursuant to Rule 4 of the Rules Governing § 2254 Cases 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 the petition does not challenge the fact or duration of petitioner's confinement; petitioner has not shown that he was deprived of a federally protected liberty interest; and petitioner has not raised a federal question. Dckt. No. 14 at 1.
The court first analyzes whether the petition challenges the fact or duration of petitioner's confinement, and is therefore cognizable in a federal habeas action. "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)).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.
Petitioner has not alleged that he has lost time credits as a result of the disciplinary conviction. Therefore, he cannot establish habeas jurisdiction on this basis. See Preiser, 411 U.S. at487-88, 490 (holding that 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).
However, petitioner does argue that the Parole Board may find petitioner unsuitable for parole because of the disciplinary conviction. See Dckt. No. 13 at 2-3. Petitioner supports his argument by attaching transcripts of his previous parole board hearings, at which the parole board discussed his other disciplinary convictions and concluded that he was not suitable for parole. See Dckt. No. 1 at 21-27.
Courts within the Ninth Circuit have not uniformly decided whether habeas jurisdiction exists when a petitioner challenges prison discipline that will potentially or even likely, but not definitely, impact the duration of his confinement. 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.1:11-CV-00150 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 ...