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McKinney v. Holland

United States District Court, E.D. California

November 24, 2014

ALONZO McKINNEY, Petitioner,
v.
HOLLAND, Respondent.

FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS (Doc. 28)

STANLEY A. BOONE, Magistrate Judge.

I. INTRODUCTION AND PROCEDURAL HISTORY

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus under the authority of 28 U.S.C. ยง 2254. Respondent is represented in this action by Maria Chan, Esq., of the Office of the Attorney General for the State of California.

Petitioner filed the instant petition for writ of habeas corpus on February 6, 2014. (Pet., ECF No. 1.) In the petition, Petitioner challenged a disciplinary proceeding resulting in his transfer to a different correctional institution. (Pet. at 5.)

On April 22, 2014, Respondent filed a motion to dismiss the petition on the grounds that the allegations are too vague and conclusory to state a claim and establish standing. On May 12, 2014, this Court issued findings and a recommendation to grant the motion to dismiss. (ECF No. 17.) The Court agreed with Respondent that Petitioner's statements in his original petition were not sufficiently specific and therefore prevented Respondent from properly responding to Petitioner's claims. Specifically, the Court found Petitioner did not specify which disciplinary decision he is challenging or what federal law was violated by Respondent. (Id.) However, the Court recommended that Petitioner be provided another opportunity to state his claims in a second amended petition. Petitioner was forewarned that failure to comply could result in the dismissal of the petition.

The Court adopted the findings and recommendation on July 15, 2014, and on July 21, 2015, Petitioner was ordered to file an amended petition. (ECF Nos. 21-22.) Petitioner filed an amended petition on August 7, 2014 and the Court ordered Respondent to file a response to the petition on August 28, 2014. (ECF Nos. 23-24.) On October 27, 2014 Respondent filed a second motion to dismiss asserting that Petitioner's claims were too vague and conclusory to state a claim. (Mot. to Dismiss, ECF No. 26.) Petitioner filed an opposition to the motion on November 7, 2014. (Opp'n, ECF No. 27.) The matter stands ready for adjudication.

II. DISCUSSION

A. Procedural Grounds for Summary Dismissal

Rule 4 of the Rules Governing Section 2254 Cases provides in pertinent part:

If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.

The Advisory Committee Notes to Rule 8 indicate that 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. 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).

B. Petitioner's Claims

Petitioner presents four claims in his petition. Under "Ground one, " Petitioner states:

After May 2011. On Sept. 9, 2011 I was given an unwanted 115 Disciplinary, and SHU term. Release from SHU May 28, 2013. I was deny the allege reporting employee and adverse witnesses at the hearing 2013. And allege evidence 602 exhausted. Director of ...

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