REPORT AND RECOMMENDATION RE MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [Doc. No. 21]
KAREN S. CRAWFORD, Magistrate Judge.
Petitioner Ruben Dario Garcia, Jr., a state prisoner proceeding pro se, filed a First Amended Petition for Writ of Habeas Corpus ("First Amended Petition") pursuant to Title 28, United States Code, Section 2254. Before the Court is defendants' Motion to Dismiss the First Amended Petition for failure to allege a violation of due process that is based on a liberty interest and that is sufficient to establish federal subject matter jurisdiction.
This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to Title 28, United States Code, Section 636(b), and Civil Local Rules 72.1 (d) and HC.2 of the United States District Court for the Southern District of California. Based on the moving and opposing papers, and for the reasons outlined below, this Court recommends that the First Amended Petition be DISMISSED.
In 1995, petitioner was convicted of first degree murder, attempted voluntary manslaughter, kidnaping, attempted kidnaping, forcible rape, and two counts of assault. He is serving a sentence in state prison of seven and one-half years plus life without the possibility of parole. [Doc. No.7-1, Lodgment No.1, Abstract of Judgment; Doc. No. 19, Am. Pet'n, at pp. 3-4.]
On October 26, 2009, petitioner was charged with violating the California Code of Regulations, because he was seen by a correctional officer wearing state-issued pants with "manufactured pockets." [Doc. No.7-1, Lodgment No.2; Doc. No. 19, Am. Pet'n, at p. 8.] On November 10, 2009, petitioner was found guilty of the charge. [Doc. No.7-1, Lodgment No.2; Doc. No. 19, Am. Pet'n, at p. 9.] As a result, he was assessed with the following: (1) a forfeiture of 30 days of work time credit; and (2) a fine of $15.55 for the replacement of the damaged pants. [Doc. No. 7-1, Lodgment No. 2; Doc. No. 19, Ex. 7 to Am. Pet'n, at p. 74-75.] Petitioner administratively appealed the decision through the director's level. [Doc. No. 19, Ex. 7 to Am. Pet'n, at pp. 69-70.] He then filed petitions for writ of habeas corpus at all three levels of the California courts arguing his right to due process was violated in the prison disciplinary process. [Doc. No.7-1, Lodgment Nos. 3-8.] All of these state habeas petitions were denied. Id. A Petition was then filed in this Court on July 19, 2011 raising the same due process claims alleged in the state court habeas petitions.
On July 27, 2012, this Court submitted a Report and Recommendation concluding that the allegations in the Petition failed to establish a basis for federal habeas jurisdiction, because they did not attack the legality or duration of petitioner's sentence of life without the possibility of parole. [Doc. No. 15, at pp. 3-6.] As a result, it appeared that petitioner's claims should be raised, if at all, in a civil rights complaint under Title 42, United States Code, Section 1983. [Doc. No. 15, at p. 5.] However, this Court also concluded petitioner had not alleged a cognizable claim for relief under Section 1983, because the facts included in the Petition were not enough to state a claim for a violation of petitioner's federal constitutional right to due process. This Court therefore recommended that most of petitioner's due process claims be dismissed without leave to amend. However, leave to amend was recommended to allow petitioner an opportunity to correct the defects in his retaliation and bias claims and to either establish federal habeas jurisdiction or file a separate civil rights complaint. [Doc. No. 15, at pp. 6-13.] In an Order filed September 11, 2012, the District Court adopted the Report and Recommendation in its entirety. [Doc. No. 18.]
Petitioner then filed a First Amended Petition for Writ of Habeas Corpus. [Doc. No. 19.] Thereafter, respondent filed a Motion to Dismiss the First Amended Petition and petitioner filed a Response in Opposition thereto. [Doc. Nos. 21, 22.]
Motion to Dismiss Standards
"[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.A. § 2254(a). Rule 4 of the Rules Governing Section 2254 Cases requires a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court...." Rule 4, Rules Governing Section 2254 Cases. The Court may dismiss a petition for writ of habeas corpus either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Rule 8, Rules Governing Section 2254 Cases, advisory committee's note. Rule 12 of the Rules Governing 2254 Cases states that: "The Federal Rules of Civil Procedure... may be applied to a proceeding under these rules." Rule 12, Rules Governing Section 2254 Cases.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) "tests the legal sufficiency of a claim." Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Because Rule 12(b)(6) focuses on the "sufficiency" of a claim rather than its substantive merits, "a court may [typically] look only at the face of the [pleading] to decide a motion to dismiss." Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002).
A motion to dismiss should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Where a plaintiff appears in pro se in a civil rights case, the court must construe the pleadings liberally and afford the plaintiff any benefit of the doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir.1988). In giving liberal interpretation to a pro se civil rights pleading, however, courts may not "supply essential elements of claims that were not initially pled." Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir.1982). "Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss." Id. "The ...