United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS; GRANTING PETITIONER'S MOTION TO WITHDRAW MOTION TO CONSOLIDATE; FURTHER BRIEFING (Docket Nos. 8, 14)
RONALD M. WHYTE, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the prison's Institutional Classification Committee's 2011 decision during his periodic review hearing to retain petitioner in the secured housing unit ("SHU"). Petitioner had been placed in the SHU in 2009 after being validated as a gang member. The court ordered respondent to show cause why the petition should not be granted. Respondent has filed a motion to dismiss for failure to state a claim. Petitioner has filed an opposition, and respondent has filed a reply. For the reasons below, the court GRANTS in part and DENIES in part respondent's motion to dismiss.
In his petition, petitioner claims that he was validated as a gang member in 2009, which resulted in his indefinite placement in the SHU. Petitioner argues that his November 2011 periodic review was not meaningful, and his continued retention was not supported by some evidence, in violation of his right to due process.
Respondent argues that the petition should be dismissed because petitioner the claims will not necessarily result in speedier release; petitioner fails to state a claim under the AEDPA; the petition fails to set forth sufficient facts for relief; the claims are successive to petitioner's claims in Stockton v. Adams, No. 11-5562 RMW ("Stockton I"); and the state law claims are not cognizable.
Respondent argues that habeas jurisdiction is absent because success on petitioner's claims will not necessarily result in speedier release. Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus." Hill v. McDonough, 547 U.S. 573, 579 (2006) (quotation marks and citation omitted). "An inmate's challenge to the circumstances of his confinement, however, may be brought under § 1983." Id . On the other hand, a writ of habeas corpus is the appropriate federal remedy when "a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to an immediate or speedier release from that imprisonment." Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see Docken v. Chase, 393 F.3d 1024, 1026 (9th Cir. 2004). The two remedies are not always mutually exclusive, however. Id. at 1031; see also id. at 1027 n.2.
The Ninth Circuit has permitted habeas to be used to assert claims that are "likely to accelerate" eligibility for parole, even though success in such cases would not necessarily implicate the fact or duration of confinement. Id. at 1028 (citing Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), and Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003)). "Thus, although Supreme Court case law makes clear that § 1983 is not available where a prisoner's claim necessarily' implicates the validity or duration of confinement, it does not appear to set out any mirror-image limitation on habeas jurisdiction." Docken, 393 F.3d at 1028; but see Ramirez, 334 F.3d at 859 ("habeas jurisdiction is absent, and a § 1983 action proper, where a successful challenge to a prison condition will not necessarily shorten the prisoner's sentence").
After a careful review, and recognizing that district courts in this circuit have not been uniform in deciding this particular issue of whether a claim like petitioner's is properly brought in a habeas action, the court concludes that petitioner's claims may be brought in a Section 2254 petition. See, e.g., Chavez v. Lewis, No. 11-0376 EMC, 2012 WL 538242, *11 (N.D. Cal. Feb. 17, 2012) (denying motion to dismiss, inter alia, on the basis that habeas jurisdiction is proper when petitioner is requesting a transfer from the SHU into the general prison population in order to be considered for parole eligibility); Larriva v. Watson, No. 1:06-cv-01453 OWW WMW, 2008 WL 398847, *3 (E.D. Cal. Feb. 12, 2008) (denying motion to dismiss on ground that habeas jurisdiction is absent when prisoner challenges his gang validation and SHU placement); Murphy v. Department of Corrections and Rehabilitation, No. C 06-04956 MHP, 2008 WL 111226, at *7 (N.D. Cal. Jan. 9, 2008) (action seeking expungement of serious disciplinary conviction cognizable on habeas review because expungement could affect the duration of the petitioner's confinement by making it more likely that he would be granted parole). Here, although release from the SHU would not "necessarily shorten [petitioner's] sentence, " Ramirez, 34 F.3d at 859, it is "likely" to accelerate his eligibility for parole, Bostic, 884 F.2d at 1269, and/or "could potentially affect the duration of his confinement." Docken, 393 F.3d at 1031.
Moreover, the Supreme Court has intimated that not all habeas cases must fall within the "core" types of claims. "It is one thing to say that permissible habeas relief, as our cases interpret the statute, includes ordering a "quantum change in the level of custody, " Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991) (Posner, J.), such as release from incarceration to parole. It is quite another to say that the habeas statute authorizes federal courts to order relief that neither terminates custody, accelerates the future date of release from custody, nor reduces the level of custody." Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J., concurring). Here, petitioner's request to be released from the SHU and back into the regular prison environment, if successful, would result in a "quantum change in the level of custody." See Grahan, 922 F.2d at 381 ("If the prisoner is seeking what can fairly be described as a quantum change in the level of custody - whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation, or the run of the prison in contrast to the approximation to solitary confinement that is disciplinary segregation - then habeas corpus is his remedy."). Accordingly, out of an abundance of caution, the court rejects respondent's argument that habeas jurisdiction is absent in this case.
Respondent also argues that the Supreme Court has not yet squarely addressed the issue of whether inmates have a liberty interest in transferring out of administrative segregation into general population and therefore, petitioner fails to state a claim. Respondent's interpretation of petitioner's claim appears to be too narrow. Moreover, respondent's argument is more suited to answer the question of whether petitioner is entitled to relief in federal court on the merits, rather than whether petitioner has stated a claim for relief. As the court previously found, liberally construed, petitioner claims that his 2011 periodic review did not offer a "meaningful review" and that its decision was not based on "some evidence."
The Supreme Court holdings on prisoners' rights in administrative segregation placement decisions are quite limited and are most recently found in Sandin v. Conner, 515 U.S. 472 (1995), which sets out the criteria for determining whether there is a protected liberty interest, and Wilkinson v. Austin, 545 U.S. 209 (2005), which held that an indefinite placement in a harsh administrative segregation unit deprived inmates of a protected liberty interest. Deprivations that are authorized by state law and are less severe or more closely related to the expected terms of confinement may also amount to deprivations of a procedurally protected liberty interest, provided that (1) state statutes or regulations narrowly restrict the power of prison officials to impose the deprivation, i.e., give the inmate a kind of right to avoid it, and (2) the liberty in question is one of "real substance." See Sandin, 515 U.S. at 477-87. Generally, "real substance" will be limited to freedom from (1) a restraint that imposes "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, " id. at 484, or (2) state action that "will inevitably affect the duration of [a] sentence, " id. at 487. The Supreme Court in Wilkinson suggested that indefinite placement in a restrictive "supermax" facility, where inmates are not eligible for parole consideration and receive annual reviews imposes an "atypical and significant hardship within the correctional context." See Wilkinson, 545 U.S. at 223-25.
Based on the above referenced law, petitioner appears to have a protected liberty interest against indefinite placement in the SH U.SHU conditions are severe and may affect petitioner's eligibility for parole. The potential to spend years in the harsh conditions of the SHU presents an atypical and significant hardship and therefore amounts to a deprivation of a protected liberty interest. The cases establish that once an inmate has been placed in administrative segregation, as petitioner has, due process requires that prison officials engage in some sort of periodic review of the inmate's confinement in administrative segregation. See Hewitt v. Helms, 459 U.S. 460, 477 n.9 (1983), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 483 n.5 (1995); Toussaint v. McCarthy, 801 F.2d 1080, 1101 (9th Cir. 1986). Lower courts have found that those periodic reviews must be more than "meaningless gestures" to satisfy due process. Toussaint v. Rowland, 711 F.Supp. 536, 540 n.11 (N.D. Cal. 1989), citing Toussaint v. McCarthy, 801 F.2d at 1102. Accordingly, the court rejects respondent's argument that petitioner has failed to state a claim.
Respondent argues that the court should dismiss the petition as failing to set forth sufficient facts for relief. In ordinary civil proceedings, the governing rule, Rule 8 of the Federal Rules of Civil Procedure, requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 2(c) of the Rules Governing Habeas Corpus cases requires a more detailed statement. The habeas rule instructs the petitioner to "specify all the grounds for relief available to [him]" and to "state the facts supporting each ground." Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254; see also Hendricks v. Vasquez, 908 F.2d 490, 491-92 (9th Cir. 1990) (habeas petitioner must state his claims with sufficient specificity). Here, despite respondent's statement to the contrary, petitioner specifies that he is challenging his November 2011 ...