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Bray v. Johnson

United States District Court, E.D. California

July 8, 2015

AMBER BRAY, Petitioner,
v.
DEBORAH JOHNSON, Respondent.

FINDINGS AND RECOMMENDATION RECOMMENDING GRANTING RESPONDENT'S MOTION TO DISMISS (ECF No.15)

STANLEY A. BOONE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation and confined at Central California Women's Facility on a sentence of life without parole for murder and conspiracy to commit murder. (ECF No. 1 at 1).[1] Petitioner challenges a rules violation report for possession of contraband, a cellular phone, for an incident on December 31, 2012. (ECF No. 1 at 4-5; ECF No. 15-1 at 70).[2] Petitioner argues that information obtained during an investigation that led to the search of her cell was never disclosed to Petitioner. (ECF No. 1 at 4-5).

Petitioner also challenges the Unit Classification Committee's actions on January 3, 2013, to remove her from her job due to a CDC Form 128-B, General Chrono authored by an Investigative Services Unit Staff. (ECF No. 1 at 5-13). Petitioner argues that the information that she was sending text messages to other inmates that the Investigative Services Unit was concentrating on a certain area to be searched was false. (ECF No. 15-1 at 23).

I.

DISCUSSION

A. Preliminary Review

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the petition and any attached exhibits 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 respondents 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). 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 lack of jurisdiction. Respondent argues that Petitioner's challenges to the rules violation report and the prison classification which resulted in her removal from a prison job do not affect the fact or duration of Petitioner's custody.

B. Habeas Corpus Jurisdiction

In general, the Supreme Court has explained that federal habeas jurisdiction lies for claims that go to "the validity of the fact or length of [prison] confinement." See Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). In Preiser, the Supreme Court held that "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 immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser, 411 U.S. at 500. In Wolff v. McDonnell, 418 U.S. 539, 554, 41 L.Ed.2d 935, 94 S.Ct. 2963 (1974), the Supreme Court held that the prisoners could not use § 1983 to obtain restoration of credits because Preiser had held that "an injunction restoring good time improperly taken is foreclosed."

The Ninth Circuit has also wrestled with issues arising out of the interplay between habeas corpus and § 1983 jurisdiction. Ninth Circuit jurisprudence is expressed in three opinions: Bostic v. Carlson, 884 F.2d 1267 (9th Cir. 1989), Ramirez v. Galaza, 334 F.3d 850 (9th Cir. 2003), and Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004).

In Bostic, the Court of Appeals reviewed district court dismissals of a series of habeas petitions filed by a petitioner who in each was challenging disciplinary actions taken against him. 884 F.2d at 1269. Prison officials had assessed a forfeiture of good-time credits for some of the infractions, but the remainder did not carry a loss of time credits - only a term of segregated housing. Id . In each of the petitions, the petitioner sought expungement of the infractions from his disciplinary record. Id . The Ninth Circuit ...


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