United States District Court, C.D. California
Present: The Honorable KENLY KIYA KATO, UNITED STATES
(In Chambers) Order To Show Cause Why This Action Should Not
Be Dismissed For Failure To Exhaust, Failure
To Name Proper Respondent, and Mootness
March 26, 2019, Petitioner Bruce Lee Gipson
(“Gipson” or “Petitioner”)
constructively filed an amended Petition for Writ of Habeas
Corpus by a Person in State Custody pursuant to 28 U.S.C.
§ 2254 (“Section 2254”) (“Amended
Petition”). ECF Docket No. (“Dkt.”) 9. The
Amended Petition challenges a disciplinary action that
resulted in 120 days of lost good and work time. Id.
However, the Amended Petition is subject to dismissal
because: (1) Gipson has not exhausted his state remedies with
respect to the grounds raised in the Amended Petition; (2)
the Amended Petition fails to name a proper respondent; and
(3) the Amended Petition appears to be moot in light of
Gipson's apparent release from prison. The Court will
provide Gipson an opportunity to address these issues before
making a final determination regarding whether the Amended
Petition should be dismissed.
January 10, 2019, Gipson was involved in an incident in his
cell at the West Valley Detention Center where
“dangerous contraband” was allegedly planted in
Gipson's wheelchair. Dkt. 9 at 5. Because he was found to
have been in possession of the contraband, Gipson was subject
to a “discipline” action that revoked 120 days of
his “good and work time”. Id. at 2.
Gipson appears to allege the procedures resulting in his loss
of good and work time were unconstitutional. See id.
February 12, 2019, Gipson constructively filed the original
Petition for Writ of Habeas Corpus by a Person in State
Custody (“First Petition”). Dkt. 1. The First
Petition was construed as challenging a 2019 probation
violation for which Gipson was sentenced to an additional 120
days in custody. Id. Gipson alleged he was
incorrectly found to have possessed “dangerous
contraband.” Id. at 2-3. Gipson contended that
someone “plant[ed]” the “dangerous
contraband” in the wheelchair. Id. at 3.
Gipson acknowledged he did not appeal his case to the
California Court of Appeal or California Supreme Court.
Id. at 5.
March 22, 2019, the Court issued an Order To Show Cause as to
why Petitioner's First Petition should not be dismissed
for (1) failure to exhaust state remedies with respect to the
grounds raised; (2) failure to name a proper respondent; and
(3) failure to comply with Federal Rule of Civil Procedure 8
and Rule 2(c) of the Rules Governing Habeas Corpus Cases
Under Section 2254. Dkt. 3. The Court found the First
Petition was subject to dismissal and instructed Petitioner
to amend his petition to correct the deficiencies, and (1)
explain the First Petition had been exhausted, (2) request a
Rhines stay; or (3) voluntarily dismiss the action
without prejudice. Id. at 3-4.
March 26, 2019, Petitioner constructively filed the instant
Amended Petition. Dkt. 9. Based on the Amended Petition, it
appears Gipson seeks to challenge a disciplinary action
involving the finding that he possessed dangerous contraband,
rather than a probation violation. Id. In the
Amended Petition, Gipson attaches further supporting
documentation showing he filed grievances, corresponded with
the San Bernardino County Sheriff's Department, and
received review of some grievances. Id. at 5-10.
Gipson again acknowledges he has not presented his claim to
the California Court of Appeal or California Supreme Court.
Id. at 4.
2, 2019, the Court filed a Report and Recommendation,
recommending the First Petition be dismissed for the reasons
stated in the March 22, 2019 Order. Dkt. 6.
3, 2019, Gipson notified the Court that his address had
changed to 60805 29 Palms Hwy, Joshua Tree, CA
92252. Dkt. 8.
THE AMENDED PETITION IS WHOLLY UNEXHUASTED
prisoner must exhaust his or her state court remedies before
a federal court may consider granting habeas corpus relief.
28 U.S.C. § 2254(b)(1)(A); O'Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d
1 (1999); Cavanagh v. Dir., Ventura Cty. Probation,
No. CV 12-6712-R (RNB), 2012 WL 4792863, at *4 (C.D. Cal.
Oct. 9, 2012) (applying state exhaustion requirements to a
petitioner's claims regarding his probation violation).
To satisfy the exhaustion requirement, a habeas petitioner
must fairly present his or her federal claims in state courts
to give the state the opportunity to pass upon and correct
alleged violations of the prisoner's federal rights.
Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887,
130 L.Ed.2d 865 (1995) (per curiam). A habeas petitioner must
give the ...