Lopez v. Ndoh

          FINDINGS AND RECOMMENDATIONS TO GRANT RESPONDENT'S MOTION TO DISMISS (DOC. 12) ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY-ONE DAYS

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Carlos Lopez challenges the failure to give him the benefit of a determination made in class action lawsuit in which, he claims, the California Department of Corrections and Rehabilitation failed to properly award custody credits. Mr. Lopez asserts that he is eligible under the class action lawsuit to greater custody credits than CDCR is giving him. Because Mr. Lopez has failed to allege any cognizable federal habeas claim, the Court will recommend respondent's motion to dismiss be GRANTED.

         I. DISCUSSION

         A. Procedural Grounds for Motion to Dismiss

         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 respondents to file a motion to dismiss in lieu of an answer if it attacks the pleadings for failing to exhaust state remedies or for being in violation of the state's procedural rules. See, e.g., O'Bremski v. Maass, 915 F.2d 418, 420 (9^th 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 (9^th 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, the Court uses Rule 4 standards to review motions to dismiss. See Hillery, 533 F.Supp. at 1194 & n. 12.

         In this case, Respondent's Motion to Dismiss is based on Petitioner's failure to allege cognizable federal habeas claims. 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. Failure to Raise Cognizable Habeas Claims

         The motion to dismiss contends that Petitioner's claims fail to articulate federal habeas claims for which relief may be granted. The Court agrees.

         As Respondent correctly notes, Petitioner alleges that the CDCR has not properly implemented or construed an order issued by the three-judge panel in the consolidated cases of Coleman v. Brown, case number 2:90-cv-00520-LKK-DAD, and Plata v. Brown, case number 3:01-cv-01351-THE ("Coleman/Plata), currently pending within the Eastern District of California. The gravamen of Petitioner's contention is that a February 10, 2014 order regarding credit-earning provisions should apply to inmates, like Petitioner, required to register as sex offenders under California Penal Code § 290. (Doc. 1). Petitioner argues that the Court's failure to apply this provision to registered sex offenders such as himself violates his federal constitutional rights to due process and equal protection.

         As background, the Coleman class action concerns the constitutional adequacy of the mental health care provided to CDCR inmates; the class consists of "all inmates with serious mental disorders who are now, or who will in the future be, confined with the [CDCR]." (Class Cert. Order, Nov. 14, 1991, 4-5, No. 90-0520 LKK-JFM (E.D.Cal.).) The Plata class action concerns the constitutional adequacy of CDCR's inmate medical health care; the class consists of "all prisoners in the custody of the [CDCR] with serious medical needs." (Stip. for Inj. Relief 5, No. 24, No. 01-cv-01351 THE (N.D.Cal.).)

         The three-judge panel presiding over these class actions has issued various orders related to prison overcrowding and has required the State of California to undertake prison population reduction measures. Petitioner does not allege that he is actually a member of either the Plata or Coleman classes; rather, Petitioner argues that, as a "non-violent second-striker, " he is "similarly situated" to those class members covered by the February 10, 2014 order. (Doc. 1, p. 8). That order provided, inter alia, an extension until February 28, 2016 for the deadline imposed in an earlier order that California reduce its prison population to 137.5% design capacity; noted some of the measures California will take to reach that goal by February 28, 2016; and directed California to implement certain of those measures immediately, including steps involving the parole process, expansion of pilot reentry programs, and, of particular importance in this case, increasing good time credits prospectively for certain categories of inmates.

         Turning to Petitioner's claim, Respondent contends that the claim is non-cognizable in these proceedings because Petitioner's claim is premised upon a federal court order, not, as required by federal habeas law, on an established constitutional right or law. The Court agrees.

         The basic scope of habeas corpus is prescribed by statute. Subsection (c) of Section 2241 of Title 28 of the United States Code provides that habeas corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) states that the federal courts shall entertain a petition for writ of habeas corpus only on the ground that the petitioner "is in custody in violation of the Constitution or laws or treaties of the United States. See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States District Court. The U.S. Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody . . ." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).

         It is well-settled in this Court that the remedial orders issued in Plata or Coleman do not provide a civil rights plaintiff with an independent cause of action under § 1983 because the orders do not have the effect of creating or expanding a plaintiff's constitutional rights. Coleman v. CDCR, 2011 WL 2619569, at *4 (E.D.Cal. July 1, 2011), citing Cagle v. Sutherland, 334 F.3d 980, 986-87 (9th Cir.2003) (consent decrees often go beyond constitutional minimum requirements, and do not create or expand rights); see also Green v. McKaskle, 788 F.2d 1116, 1123 (5th Cir.1986) (remedial decrees remedy constitutional violations but do not create or enlarge constitutional rights and cannot serve as a substantive basis for damages). See, e.g., Coston v. Clark, 2014 WL 654547, at *4 (E.D. Cal. Feb. 19, 2014); Divincenzo v. Young, 2014 WL 172536, at *5 (E.D. Cal. Jan. 15, 2014); Castaneda v. Foston, 2013 WL 4816216, at *5 (E.D. Cal. Sept. 6, 2013); Consiglio v. California Bd. of Parole Hearings, 2013 WL 2303242, at *1 (E.D. Cal. May 24, 2013); Johnson v. CDCR, 2010 WL 2232368, at *3 (E.D. Cal. June 3, 2010); Soto v. Bd. of Prison Term, 2007 WL ...