The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
ORDER DISMISSING THE FIRST
AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 12)
ORDER DECLINING TO CONSTRUE THE PETITION AS A CIVIL RIGHTS COMPLAINT
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
AND DIRECTING THE CLERK TO CLOSE THE CASE
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition 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 February 8, 2013 (doc. 8). Pending before the Court is the first amended petition (FAP), which was filed on March 11, 2013.
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 at 491.
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 is an inmate of Ironwood State Prison who is serving a sentence of fifteen years to life imposed in the Superior Court of the State of California, County of Los Angeles, on or about March 27, 1992, for second degree murder. He alleges that his rights to due process of law guaranteed by the Fourteenth Amendment were violated in connection with an incident that occurred on February 20, 2010, in which Correctional Officer Fletcher failed to bring Petitioner a vegetarian meal while he was confined to quarters for a previous disciplinary matter; the officer disregarded protocol, removed Petitioner from his cell, and discussed the matter with Petitioner and Correctional Lieutenant E. Smith, who offered Petitioner two breakfast trays for the following day if he returned to his assigned cell. Petitioner admits that he refused to return to his cell as directed. As a result, Officer Fletcher reported that she was delayed in the performance of her duties for approximately forty-five (45) minutes. Petitioner alleges that Officer Fletcher falsified a rules violation report (RVR) based on Petitioner's delay and interference with the officer's duties. He further alleges that when he filed a staff complaint concerning Officer Fletcher's misconduct in removing him from his cell while he was confined to quarters and in failing to give him his vegetarian meal, the prison refused to process the grievance and thus denied him his only opportunity to present evidence that his failure to return to his cell was caused by Officer Fletcher's misconduct in removing him from his cell and failing to give him a vegetarian meal. (FAP, doc. 12, at 7-8.)
II. Lack of a Cognizable Claim
This Court dismissed the initial petition because Petitioner had not alleged facts indicating that the events complained of concerned the legality or duration of his confinement, and thus Petitioner had not shown that his claim or claims were within the Court's habeas jurisdiction. A review of the FAP shows that it suffers from essentially the same defect as the initially filed petition.
This Court has a duty to determine its own subject matter jurisdiction, and lack of subject matter jurisdiction may 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) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511-512 (1973)). A court will not infer allegations supporting federal jurisdiction; a federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears, and thus federal subject matter jurisdiction must always be affirmatively alleged. Fed. R. Civ. P. 8(a); Stock West, Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989).
A federal court may only grant a state prisoner's 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 ...