FINDINGS AND RECOMMENDATIONS RE: RESPONDENT'S MOTION TO DISMISS FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS (Doc. 18),
ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The instant petition was filed on August 8, 2013, challenging the results of a prison disciplinary hearing following which Petitioner was found guilty of masturbation with exposure and sanctioned with the loss of 90 days' credits. (Doc. 1). On August 19, 2013, Petitioner filed a first amended petition. (Doc. 4). The Court ordered Respondent to file a response on August 26, 2013. (Doc. 8). On October 2, 2013, Respondent filed the instant motion to dismiss, contending that the Court lacked jurisdiction over the petition. (Doc. 18). On October 15, 2013, Petitioner filed his Traverse and an opposition to the motion to dismiss. (Docs. 19 & 20).
A. Procedural Grounds for Motion to Dismiss
As mentioned, Respondent has filed a Motion to Dismiss the petition for lack of jurisdiction. Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases.
The Ninth Circuit has allowed Respondent's 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) (same). Thus, a Respondent can file a Motion to Dismiss after the court orders a response, and the Court should use Rule 4 standards to review the motion. See Hillery , 533 F.Supp. at 1194 & n. 12.
In this case, Respondent's Motion to Dismiss is based on the contention that the Court lacks jurisdiction over the habeas petition. Because Respondent's Motion to Dismiss is similar in procedural standing to a Motion to Dismiss for failure to exhaust state remedies or for state procedural default and Respondent has not yet filed a formal Answer, the Court will review Respondent's Motion to Dismiss pursuant to its authority under Rule 4.
B. Lack of Habeas Jurisdiction.
A federal court may only grant a petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution...." 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, 93 S.Ct. 1827 (1973); Ramirez v. Galaza , 334 F.3d 850, 859 (9th Cir. 2003)("[H]abeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence."); Advisory Committee Notes to Rule 1 of the Rules Governing Section 2254 Cases. Indeed, claims challenging the validity of a prisoner's continued incarceration, including the fact or length of the custody, lie within the "heart of habeas corpus" and are cognizable only in federal habeas corpus. Preiser v. Rodriguez , 411 U.S. 475, 498-99, 499 n.14 (1973). In contrast, an action pursuant to 42 U.S.C. § 1983 is appropriate for a state prisoner challenging the conditions of prison life but not the fact or length of the custody. McCarthy v. Bronson , 500 U.S. 136, 141-42 (1991); Preiser , 411 U.S. at 499; Badea v. Cox , 931 F.2d 573, 574 (9th Cir. 1991).
With respect to prison disciplinary proceedings, it is established that 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.
The Supreme Court's decisions concerning any boundaries between habeas jurisdiction and § 1983 jurisdiction have been rendered in cases involving § 1983 proceedings. Thus, it is established that regardless of the precise relief sought, an action pursuant to § 1983 concerning prison administrative processes is barred if success in the action would necessarily demonstrate the invalidity of the confinement or its duration, or necessarily imply the invalidity of a conviction or sentence. Wilkinson v. Dotson , 544 U.S. 74, 81-82 (2005) (parole processes). However, the limits on habeas jurisdiction, or the appropriate extent of any overlap between habeas and § 1983, have not been definitively addressed by the Supreme Court. The Supreme Court has adverted to the possibility of habeas as a potential alternative remedy to an action under § 1983 for unspecified additional and unconstitutional restraints during lawful custody, Preiser v. Rodriguez , 411 U.S. at 499-500, but it has declined to address whether a writ of habeas corpus may be used to challenge conditions of confinement as distinct from the fact or length of confinement itself. See Bell v. Wolfish , 441 U.S. 520, 527 n.6 (1979). Nevertheless, the Court continues to recognize a "core" of habeas corpus that refers to suits where success would inevitably affect the legality or duration of confinement. For example, in Wilkinson, the Court noted that if success on a claim would mean at most a new opportunity for review of parole eligibility, or a new parole hearing at which authorities could discretionarily decline to shorten a prison term, then success would not inevitably lead to release, and the suit would not lie at the core of habeas corpus. Wilkinson , 544 U.S. at 82.
Here, Petitioner does not contend that the hearing officer's conclusion was not based on "some" evidence; rather, Petitioner argues that Respondent failed to submit a mental health evaluation within the fifteen-day period provided by state regulations. Respondent contends that such a violation, even if true, fails to rise to the level of a constitutional ...