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Larkin v. Davey

United States District Court, E.D. California

March 27, 2015

D. DAVEY, Respondent.


GREGORY G. HOLLOWS, Magistrate Judge.


Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. He challenges, on due process grounds, a prison rules violation report ("RVR") following a prison disciplinary conviction on the charge of obstructing a peace officer's duties by refusing to accept his assigned housing. Respondent has filed an answer and petitioner has filed a traverse. Also before the undersigned is petitioner's motion for leave to amend his petition. (ECF No. 16.) Upon careful consideration of the record and the applicable law, the undersigned now issues findings and recommendations that the petition be denied and orders petitioner's motion for leave to amend his federal petition denied.


According to the RVR, on May 2, 2013, Correctional Officer Villasenor approached a cell occupied by petitioner. ECF No. 10-1 at 31. Villasenor explained that petitioner would have a new cellmate. Id. He also noted that the new cellmate was compatible. Id. Thereafter, Villasenor ordered petitioner to accept this new cellmate. Id. Petitioner refused stating, "I am not going to cell with anyone, because I have safety concerns." Id. Villasenor informed petitioner that petitioner would be receiving an RVR for this conduct. Id.

Investigating Officer Searby took petitioner's statement which reads as follows:

I fear for my safety in a cell with other inmates and inmate population. On 2-8-12, I was attacked by another inmate, in which I informed prison staff that I fear for my safety. I was then removed from the inmate population for "safety concerns, " and placed in AD-SEG (CCR Section 3335 [a]), pending an investigation. see CDC Form 114-D, dated 2-8-12. The investigation was never conducted. I was also a victim of an in-cell assault, which was reported to prison staff and documented on a CDC Form 1882, Initial Housing Review. see CCR Section 3269 (b)-(d)(2). I continue to inform prison staff of my "safety concerns, " but they have been disregarded. see Classification Chrono 128-G, dated 4-4-13. And I'm currently serving a determinate SHU term from Refusing Assigned Housing. see CCR Section 3269 (c).

ECF No. 10-1, at 32.

At petitioner's disciplinary hearing, petitioner pled not guilty and requested that his statement to investigating Officer Searby be submitted into evidence. ECF No. 10-1, at 34. Petitioner also requested Officer Villasenor as a witness. Id. The senior hearing officer asked Officer Villasenor whether the other inmate was SNY and Officer Villasenor responded that "[t]he inmates were compatible." Id. The senior hearing officer found petitioner guilty of refusing to accept assigned housing, relying on the RVR prepared by Officer Villasenor and the 1882-B Double Cell Review signed by Lieutenant Konrad which noted that the inmates were compatible. Id. As a result, a 90-day loss of credit forfeiture was assessed against petitioner. Id.

Petitioner's first state habeas corpus petition, filed with the Sacramento County Superior Court, alleged the disciplinary decision was not supported by the evidence and that the investigative employee did not properly conduct his duties. ECF No. 10-1, at 4-5. In a reasoned decision, the Sacramento Superior Court denied the petition. Id. at 48. Petitioner then filed a habeas petition, alleging the same claims, with the California Court of Appeal, which was summarily denied. Id. at 54-71, 110. Petitioner then filed a petition with the California Supreme Court, which was also summarily denied. Id. at 113-30, 168. Petitioner filed his federal petition, commencing this proceeding on October 24, 2014. ECF No. 1.


A. Petitioner's Challenge to His May 2013 Disciplinary Conviction

1. Applicable Law

A prisoner may challenge a prison disciplinary conviction by petition for writ of habeas corpus if the conviction resulted in the loss of good time credits because credits impact the duration of the prisoner's confinement. Preiser v. Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827 (1973) (suit seeking restoration of good time credits was "within the core of habeas corpus in attacking the very duration of their physical confinement itself"). In dicta, the court in Preiser noted that such a challenge is permissible even if restoration of the credits would not result in the prisoner's immediate release from prison. Id.

"Habeas corpus jurisdiction also exists when a petitioner seeks expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility for parole." Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989); see also Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) ("[W]e understand Bostic's use of the term likely' to identify claims with a sufficient nexus to the length of imprisonment so as to implicate, but not fall squarely within, the core' challenges identified by the Preiser Court.")

While prisoners may not be wholly deprived of their constitutional rights, "there must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution...." Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). "Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. A prisoner's due process rights must be accommodated to the "legitimate institutional needs" of a prison. Bostic, 884 F.2d at 1269, citing Superintendent v. Hill, 472 U.S. 445, 454-455, 105 S.Ct. 2768 [] (1984). With respect to prison disciplinary proceedings, the minimum procedural requirements that must be met are: (1) written notice of the charges; (2) at least 24 hours between the time the prisoner receives written notice and the time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right of the prisoner to call witnesses and present documentary evidence in his defense, when permitting him to do so would not be unduly hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner where the prisoner is illiterate or the issues presented are legally complex. Wolff, 418 U.S. at 563-71. Confrontation and cross examination are not generally required. Id. at 567.

In addition, due process requires that the decision be supported by "some evidence." Hill, 472 U.S. at 455, 105 S.Ct. 2768, citing United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927). In Hill, the United States Supreme Court explained that this standard is met if "there was some evidence from which the conclusion of the administrative tribunal could be deduced...." Id. Ascertaining whether this standard is satisfied does not require an examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence." Id. at ...

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