United States District Court, E.D. California
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.
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.
Procedural Grounds for Motion to Dismiss
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 (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); 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.
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.
Failure to Raise Cognizable Habeas Claims
motion to dismiss contends that Petitioner's claims fail
to articulate federal habeas claims for which relief may be
granted. The Court agrees.
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.
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.).)
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.
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.
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).
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 ...