CHARLES E. GRIFFIN II, Petitioner,
WARDEN P. D. BRAZELTON, et al., Respondents.
FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. 1), DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DIRECT THE CLERK TO CLOSE THE CASE OBJECTIONS DEADLINE: THIRTY (30) DAYS
SHEILA K. OBERTO, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on July 15, 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; 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.
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, however, 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 the Pleasant Valley State Prison located in Coalinga, California, which is located within this district. Petitioner alleges he has suffered retaliation from officers of various state prisons in which he has been housed for having attempted to grieve issues and receive relief in the course of administrative appeals within the prison system. Petitioner alleges he has suffered the taking and destruction of his personal property, including but not limited to a cassette player and legal paperwork, and the obstruction and delay of his efforts to exhaust his administrative remedies.
Petitioner raises the following claims in the petition: 1) prison staff violated his First, Fifth, Sixth, and Fourteenth Amendment rights to seek the timely redress of grievances; 2) the state trial court abused its discretion and violated petitioner's First Amendment and due process rights in denying Petitioner's petition for habeas corpus relief; and 3) the state courts' failure to address his issue of retaliation violated Petitioner's rights under the First, Sixth, and Fourteenth Amendment and his right to equal protection of the law. Petitioner seeks compensation for his property loss and an order preventing any further harassment. (Pet., doc. 1, 1-31, 38.) A complete review of the petition reflects that Petitioner's injury consisted of the loss of his property and his experience of retaliatory obstruction and delay in the process of exhausting his administrative remedies concerning the injury. (Id. at 1-137.)
II. Conditions of Confinement
This Court has a duty to determine its own subject matter jurisdiction, and lack of subject matter jurisdiction can 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; 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 Preiser v. Rodriguez , 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 Adoption. 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 Habeas Rule 1, 1976 Adoption.
A constitutional claim concerning the application of rules administered by a prison or penal administrator that challenges the duration of a sentence is a cognizable claim of being in custody in violation of the Constitution pursuant to 28 U.S.C. §2254. See, e.g., Superintendent v. Hill , 472 U.S. 445, 454 (1985) (determining a procedural due process claim concerning loss of time credits resulting from disciplinary procedures and findings). The Supreme Court has held that challenges to prison disciplinary adjudications that have resulted in a loss of time credits must be raised in a federal habeas corpus action and not in a § 1983 action because such a challenge is to the very fact or duration of physical imprisonment, and the relief sought is a determination of entitlement of immediate or speedier release. Preiser v. Rodriguez , 411 U.S. 475, 500. Thus, such claims are within the core of habeas corpus jurisdiction.
This circuit has recognized a possibility of habeas jurisdiction in suits that do not fall within the core of habeas corpus. Bostic v. Carlson , 884 F.3d 1267 (9th Cir. 1989) (expungement of disciplinary finding likely to accelerate eligibility for parole); Docken v. Chase , 393 F.3d 1024 (9th Cir. 2004) (a claim challenging the constitutionality of the frequency of parole reviews, where the prisoner was seeking only equitable relief, was held sufficiently related to the duration of confinement). However, relief pursuant to § 1983 remains an appropriate remedy for claims concerning administrative decisions made in prison where success would not necessarily imply the validity of continuing confinement. Docken v. Chase , 393 F.3d at 1030 (characterizing Neal v. Shimoda , 131 F.3d 818 (9th Cir. 1997) as holding that a § 1983 suit is an appropriate remedy for challenges to conditions ...