Opinion
Civil No. 05cv0216-BTM (AJB).
February 6, 2006
Petitioner Joel Brown, a state prisoner incarcerated at Calipatria State Prison in Calipatria, California, is proceeding pro se with a First Amended Petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Doc. No. 8.) Petitioner claims that as a result of overcrowding and budgetary cuts by the California Department of Corrections and Rehabilitation ("CDCR"), the conditions of confinement at Calipatria are such that he his incarcerated in violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Respondent George J. Giurbino, the Acting Warden of Calipatria, has filed a Motion to Dismiss the First Amended Petition. (Doc. No. 15.) Respondent argues that Petitioner's claims are procedurally defaulted because they were denied by the state courts on the basis of Petitioner's failure to exhaust available administrative remedies, and, alternately, that Petitioner's claims are not cognizable on federal habeas.
Presently before the Court is a Report and Recommendation ("RR") submitted by United States Magistrate Judge Anthony J. Battaglia which recommends the Motion to Dismiss be granted in part and denied in part. (Doc. No. 21.) The Magistrate Judge found that Petitioner's claims were not procedurally defaulted, but the claims regarding conditions of confinement were not cognizable on habeas, and should be dismissed without prejudice to Petitioner to present them in a separate civil rights action brought under 42 U.S.C. § 1983. The Magistrate Judge also found that Petitioner's claims which implicate the invalidity of his continuing incarceration were cognizable under 28 U.S.C. § 2254, and that Petitioner should be allowed to proceed with such claims.
Both parties have filed objections to the RR. Petitioner objects to the finding in the RR that his claims regarding the conditions of confinement are not cognizable on federal habeas, and requests the Court to substitute as Respondent George Giurbino, whom he contends has replaced Stuart J. Ryan as the acting Warden of Calipatria. (Doc. No. 25.) Respondent objects to the finding in the RR that Petitioner's claims are not procedurally defaulted, and contends Petitioner's claims should be dismissed in any case for failure to exhaust administrative remedies. (Doc. No. 27.) Respondent also objects to the finding in the RR that Petitioner has presented a claim cognizable on federal habeas, contending Petitioner would not be entitled to early release even were he to succeed on his claims. Petitioner has filed a reply to Respondent's objections, contending that exhaustion of administrative remedies in his case is futile and should therefore not present a basis for dismissal of his claims, and arguing that Respondent's contention that the conditions of confinement claims are not cognizable on habeas lacks insight into the realities of prison life. (Doc. No. 29.) Petitioner has also requested an extension of the deadline in which to file his Objections and Reply. (Doc. No. 30.)
The Court has already substituted George Giurbino as Respondent pursuant to Petitioner's request. (See 11/29/05 Order at 2.)
The Court has reviewed the RR pursuant to 28 U.S.C. § 636(b)(1), which provides that "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1) (West Supp. 2005). For the following reasons, the Court ADOPTS as modified the findings of the Magistrate Judge. The Court finds that Petitioner has failed to exhaust administrative remedies as to any claim. With respect to the claims which are cognizable only under 42 U.S.C. § 1983, such claims are DISMISSED without prejudice to Petitioner to proceed with those claims in a separate civil rights action. As to those claims which are arguably cognizable under 28 U.S.C. § 2254, Petitioner has failed to state a federal claim, and such claims are DISMISSED with prejudice.
I. Request for Extension of Time
Petitioner has filed a Request for Extension of Time in which he requests the Court to permit his Objections to the RR and his reply to Respondent's Objections to be considered timely filed, despite the fact they were filed beyond the deadlines set forth in this Court's November 29, 2005 Order. (Doc. No. 30.) For good cause shown, and absent objection, Petitioner's request is GRANTED and his documents are considered to be timely filed.
II. Petitioner's Claims
Petitioner contends the CDCR at present has approximately 160,000 inmates incarcerated in their facilities, but that the State of California has only budgeted the CDCR for roughly 100,000 inmates. (First Amended Petition ("FAP") at 6.) Petitioner contends that he is similarly situated to inmates in other states which release inmates from their prisons due to overcrowding, and he therefore has a liberty interest protected by the Equal Protection Clause of the Fourteenth Amendment in being released early due to overcrowding. (Id.) Petitioner also claims that recent cuts in staff, programs and services have created hostile conditions of confinement at Calipatria. (Id.) In particular, Petitioner contends the length of his incarceration has been increased due to the elimination of prison programs which allow inmates to earn custody credits through employment. (Id.) He also contends the hostile atmosphere in the prison caused by overcrowding and budget cuts makes it much more likely an inmate will be "caught in the wrong place at the wrong time" during violent encounters between inmates and staff, and be "rounded up and charged [with disciplinary infractions] right along with the others." (Id.) He contends these conditions deny inmates the ability to achieve factors favorable in parole eligibility determinations, and present a risk of accumulation of unfavorable eligibility factors, such as disciplinary infractions. (Id. at 6-6a.)
Petitioner also contends the under-funding by the State of California has created conditions of confinement which rise to the level of cruel and unusual punishment in violation of the Eighth Amendment. (Id. at 6a.) In addition to an increased risk of violence, he contends inmates are not receiving adequate food or medical services. (Id.) Finally, he states his intention to present in this Court only those claims he presented to the state supreme court in his state habeas petition in order to avoid presenting unexhausted claims. (Id.) Although there is no relief specifically requested in the FAP, or in the original petition, Petitioner presumably requests that this Court issue a writ directing Respondent to release him from custody.
III. State Court Adjudication of Petitioner's Claims
Petitioner presented his claims to the state supreme court in a habeas petition. (Lodgment No. 6.) The state supreme court denied the petition with an order which stated in full: "Petition for writ of habeas corpus is DENIED. (See In re Dexter (1979) 25 Cal.3d 921.)" (Lodgment No 7.) The state supreme court inDexter acknowledged that California has a general rule requiring habeas petitioners to exhaust administrative remedies prior to bringing claims in a habeas petition. Dexter, 25 Cal.3d at 925. However, the court in Dexter reached the merits of a claim presented in a habeas petition, despite the fact the petitioner had not exhausted administrative remedies, after noting it would have been futile for the petitioner to have presented his claim to the parole board because it requested deviation from a consistent and clearly announced parole board policy. Id. at 925-26.
Petitioner also presented his claims to the state appellate and superior courts in habeas petitions filed in those courts prior to presenting them to the state supreme court. (Lodgment Nos. 2, 4.) The state appellate court denied the petition, stating:
Petitioner contends that as a result of budget cuts/shortfalls and operating prisons at double designed capacity, the State of California has cut back, eliminated, or adversely affected certain prison programs and privileges (e.g. work participation, family visits, monthly canteen draw, telephone access, yard access, receipt of special packages, dayroom activities, food quality and quantity, prisoner transfers and programs for life-sentenced prisoners) in violation of the right to equal protection and the right to be free from cruel and unusual punishment provided by the United States Constitution. To the extent petitioner is complaining about the adverse effects of programs as they apply to him, he has not exhausted administrative remedies. (See In re Dexter (1979) 25 Cal.3d 921, 925.) To the extent he is acting in a representational capacity and complaining about the conditions on behalf of all prisoners, he has failed to present a prima facie case on which relief can be granted. (See In re Bower (1985) 28 Ca.3d 865, 872.)
(Lodgment No. 5 at 1-2.)
The state superior court also denied the petition, stating:
Petitioner objects to CDC's plan to reduce inmate job and job training opportunities in response to potential budget cuts, and seeks seeks [sic] writ relief therefrom, in the form of an order that inmates be released from custody in proportion to the work opportunities eliminated [¶] He presents no evidence of exhaustion of administrative remedies, recognizing that "CDC does not have the authority to grant relief, nor can they remedy the concerns of the petition." The Court agrees with the petitioner's assessment and further finds that therefore the petition fails to state sufficient facts to prove a prima facie case upon which relief by writ can be granted.
(Lodgment No. 3 at 1.)
IV. Respondent's Motion to Dismiss
Respondent moves to dismiss the FAP on the basis that Petitioner's claims are procedurally defaulted and, alternately, that they are not cognizable on federal habeas. In the Objections to the RR, Respondent further argues that to the extent the Court construes some or all of Petitioner's claims as cognizable under 42 U.S.C. § 1983, the Court should dismiss such claims on the basis of Petitioner's failure to exhaust his administrative remedies. Finally, Respondent contends that Petitioner's claims should be dismissed because they are not cognizable on federal habeas, as he would not be entitled to early release even if he succeeds on the merits of his claims.
A. Procedural Default
The Magistrate Judge found that it would have been futile for Petitioner to exhaust his administrative remedies, a proposition agreed with by the superior court. (RR at 6-7.) The RR found that Petitioner's claims were not procedurally defaulted because the exhaustion requirement was not consistently applied by the state courts, in that there is a well recognized futility exception which was apparently applied in this case. (Id.) The Magistrate Judge therefore recommended denying in part the Motion to Dismiss to the extent it sought dismissal of the claims based on a procedural default. (Id.)
The Court ADOPTS the finding in the RR, to which no party has objected, that Petitioner has not exhausted his administrative remedies as to any claim presented. The Court also ADOPTS with the following modification the finding in the RR that Petitioner's claims are not procedurally defaulted.
When a state's highest court rejects a federal claim based upon a violation of a state procedural rule which is adequate to support the judgment and independent of federal law, a habeas petitioner has procedurally defaulted his claim. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). A state procedural rule is "adequate" if it is "clear, consistently applied, and well-established" at the time of the default. Calderon v. United States District Court, 96 F.3d 1126, 1129 (9th Cir. 1996). Respondent bears the initial burden of "demonstrating that the bar is applicable — in this case that the state procedural rule has been regularly and consistently applied in habeas actions."Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003).
Here, the state supreme court denied Petitioner's claims with a citation to Dexter, a case which itself recognized and applied an exception to the general rule that petitioners must exhaust administrative remedies prior to bringing habeas claims in state court. Respondent has failed to carry even the modest burden of showing that such a citation demonstrates the state supreme court denied Petitioner's claims on the basis of a state procedural bar requiring exhaustion of state remedies, or that the state procedural bar at issue here is consistently applied, particularly in light of the fact it was not applied in Dexter where, as here, exhaustion was futile. Thus, Respondent's Motion to Dismiss on the basis of procedural default is DENIED.
B. Failure to Present a Cognizable Claim
Respondent next contends the FAP should be dismissed because it does not present a claim cognizable on federal habeas. In addition, in response to the finding in the RR that some of Petitioner's claims are cognizable under section 1983, Respondent contends such claims should be dismissed for failure to exhaust administrative remedies.
The Court ADOPTS the finding in the RR that Petitioner has presented claims which involve the conditions of his confinement and do not effect the length of his incarceration, and are therefore not cognizable on federal habeas but only cognizable under section 1983. These include claims that under-funding by the CDCR has created conditions of confinement which rise to the level of cruel and unusual punishment in violation of the Eighth Amendment because there is an increased risk of violence, and that inmates are not receiving adequate food or medical services. (FAP at 6a.) Somewhat more problematic in determining the proper form of action are Petitioner's claims that: (1) he is entitled to release from prison due to overcrowding under equal protection principles because he is similarly situated to inmates in other states who have been released due to overcrowding; (2) the length of his sentence has been increased due to the elimination of prison programs which allow inmates to earn work-related custody credits; and (3) the hostile atmosphere in the prison makes it much more likely that inmates will lose the ability to achieve favorable parole eligibility factors, and presents a risk of accumulation of unfavorable factors such as disciplinary infractions. (Id. at 6-6a.)
In Preiser v. Rodriguez, 411 U.S. 475 (1973), the Court considered the potential overlap between federal habeas actions under 28 U.S.C. § 2254 and challenges to the conditions of confinement pursuant to 42 U.S.C. § 1983. The Court held that habeas is the exclusive remedy for a state prisoner challenging the fact or duration of his confinement and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that confinement, even though the claim may also come within the literal terms of section 1983. Id. at 488-500. On the other hand, a section 1983 action is a proper avenue for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody. Id. at 499.
The Supreme Court distinguished Preiser in Heck v. Humphrey, 512 U.S. 477 (1994), where it held that when a state prisoner's claims for monetary damages, if successful, would necessarily render a conviction or sentence invalid, the claims do not arise under section 1983 unless "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87; see also Mayle v. Felix, 545 U.S. ___, 125 S.Ct. 2562, 2579 n. 4 (2005) ("the single, defining feature setting habeas cases apart from other tort claims against the State is that they `necessarily demonsrat(e) the invalidity of the conviction.'") (quoting Heck, 512 U.S. at 481-82). In Edwards v. Balisok, 520 U.S. 641 (1997), the Court applied Heck to find that habeas was the sole federal vehicle available for a state prisoner's constitutional challenge to the procedures used in a disciplinary hearing which resulted in the loss of custody credits where the claim would, if proven, "necessarily imply the invalidity of the deprivation" of the custody credits. Edwards, 520 U.S. at 646-48. The Court found, however, that a prisoner's claim for an injunction barring future unconstitutional procedures did not fall within federal habeas because such prospective relief does not necessarily imply the invalidity of the previous loss of custody credits. Id. at 648.
The Supreme Court has therefore concluded that state prisoners must use habeas corpus "when they seek to invalidate the duration of their confinement — either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State's custody," Wilkinson v. Dotson, 544 U.S. 74, ___, 125 S.Ct. 1242, 1247 (2005), and that claims which, if successful, would not entitle Petitioner to release from custody, are cognizable under section 1983. Edwards, 520 U.S. at 646-48. With respect to those claims which are cognizable only under section 1983, the Court construes the FAP as a complaint filed pursuant to 42 U.S.C. § 1983. See Willwording v. Swenson, 404 U.S. 249, 251 (1971) (holding that district courts have discretion to construe a habeas petition attacking conditions of confinement as a complaint under section 1983 despite deliberate choice by petitioner to proceed on habeas).
For the reasons set forth immediately below, Petitioner's section 1983 claims are subject to dismissal without prejudice for failure to exhaust administrative remedies. To the extent the FAP presents claims which are arguably cognizable on federal habeas, for the reasons set forth below, it is clear that such claims are subject to dismissal for failure to present a federal claim.
1) Section 1983 Claims
To the extent any of the claims presented in the FAP are properly presented only in a civil rights action pursuant to section 1983, see Edwards, 520 U.S. at 646-48, the claims are subject to dismissal for failure to exhaust state court remedies. The Prison Litigation Reform Act amended 42 U.S.C. § 1997e(a) to provide that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a) (West 2003);Porter v. Nussle, 534 U.S. 516, 520 (2002); Wyatt v. Terhune, 315 F.3d 1108, 1117-18 (9th Cir. 2003).
In Booth v. Churner, 532 U.S. 731 (2001), the Supreme Court held the exhaustion of "available" administrative remedies under § 1997e(a) is required in prison condition cases so long as the "prison administrative process [. . .] could provide some sort of relief on the complaint stated" regardless of whether that process can provide "the remedial action [the] inmate demands."Booth, 532 U.S. at 734, 736. "An inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues," and the prisoner must exhaust his claims through the existing administrative processes so long as those procedures have the "authority to provide any relief" or permit prison officials to take "some action in response to the complaint." Id. at 736, 741 nn. 4, 6.
Petitioner does not dispute he has failed to exhaust his administrative remedies, but maintains that exhaustion of administrative remedies would be futile. Booth makes clear that to the extent Petitioner seeks to be excepted from 42 U.S.C. § 1997e(a)'s mandatory exhaustion requirement because the available administrative remedies are futile, this Court no longer has discretion to excuse Congress's mandate that he exhaust, even though he may have found the available administrative procedure futile. See Booth, 532 U.S. at 741 n. 6 ("[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise."); McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002) (noting that under 42 U.S.C. § 1997e(a), exhaustion is a "mandatory" pre-condition to suit)). Even assuming Petitioner could not have achieved through the administrative remedy procedures his ultimate goal of being released from custody or increasing the funding for the CDCR, his complaints regarding the conditions of confinement could clearly have evoked "some action in response to the complaint" by prison authorities.
Therefore, the Court finds that because Respondent has sufficiently shown that Petitioner has failed to exhaust his administrative remedies, all claims in this action which are properly brought as conditions of confinement claims under 42 U.S.C. § 1983 are DISMISSED without prejudice. See Wyatt, 315 F.3d at 1120 ("If the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice."). These include Petitioner's claims that under-funding by the CDCR has created conditions of confinement which rise to the level of cruel and unusual punishment in violation of the Eighth Amendment due to an increased risk of violence, because inmates are not receiving adequate food or medical services, and with respect to any other conditions of confinement which do not necessarily imply the invalidity of Petitioner's continuing incarceration. The dismissal is without prejudice to Petitioner to present these claims in a separate civil rights action should he ever satisfy the exhaustion requirement. 2) Habeas Claims
To the extent Petitioner incorporated in the FAP, by reference to his state court petition (see FAP at 6a), additional conditions of confinement claims similarly not related to the validity of his continuing incarceration, such as reduction in visitation privileges, telephone and yard access, etc., such claims are included within the Court's finding regarding claims cognizable only under section 1983.
Respondent also moves to dismiss Petitioner's claims on the basis they are not cognizable on federal habeas. The Magistrate Judge found that several of Petitioner's claims are sufficiently cognizable on federal habeas to survive the Motion to Dismiss because they implicate the duration of his confinement. (RR at 7.) These include claims that: (1) Petitioner is entitled to release from prison due to overcrowding under equal protection principles because he is similarly situated to inmates in other states who have been released due to overcrowding; (2) the length of his sentence has been increased due to the elimination of prison programs which allow inmates to earn work-related custody credits; and (3) the hostile atmosphere in the prison makes it much more likely that inmates will lose the ability to achieve favorable parole eligibility factors, and presents a risk of accumulation of unfavorable factors such as disciplinary infractions. (See FAP at 6-6a.)
The Court need not reach the issue regarding whether these claims are or are not precluded from presentation in a federal habeas action, and need not expound on the exact contours of the overlap between federal habeas and section 1983 in the present context. To the extent these claims can only be presented in a civil rights action pursuant to section 1983, they are subject to dismissal for failure to exhaust administrative remedies as set forth above. On the other hand, even assuming these claims can be properly presented in a federal habeas action, for the following reasons it is clear they do not present a federal claim.
First, with respect to the claim that Petitioner is less likely to earn custody credits through work programs which have been eliminated or diminished, he cannot state a claim. Petitioner is unable to demonstrate a due process violation unless he can identify "a liberty or property interest protected by the Constitution" of which he was deprived. Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000). The Ninth Circuit has consistently held that "the Due Process Clause of the Fourteenth Amendment `does not create a property or liberty interest in prison employment.'" Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004) (quoting Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986), and citing Baumann v. Arizona Dep't of Corrections, 754 F.2d 841, 846 (9th Cir. 1985)); see also Miller v. Rowland, 999 F.2d 389, 392 (9th Cir. 1993) (holding that inmate has no liberty interest in unearned work credits), citing Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986) and Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir. 1989) (prisoner does not have liberty interest in work credits during period he was available for work but was not given work); see also Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997) (finding that inmate cannot state a federal claim based on denial of prison employment absent implication of some other constitutional right such as a First Amendment violation); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (same with respect to putative right to rehabilitation).
Next, with respect to Petitioner's claim that he is entitled to release from prison due to overcrowding under equal protection principles because he is similarly situated to inmates in other states who have been released due to overcrowding, he cannot state a federal claim. "The Equal Protection Clause of the Fourteenth Amendment commands that no State shall `deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Shaw v. Reno, 509 U.S. 630 (1993). The question is not whether one state treats its prisoners the same as another state. Rather, the question is whether California treats all similarly situated prisoners the same. See Addington v. Texas, 441 U.S. 418, 431 (1979) ("The essence of federalism is that states must be free to develop a variety of solutions to problems and not be forced into a common, uniform mold.") Since the Ninth Circuit has consistently held that prisoners are not a protected class, Glauner v. Miller, 184 F.3d 1053, 1054 (9th Cir. 1999); Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); Mayner v. Callahan, 873 F.2d 1300, 1302 (9th Cir. 1989), even if Petitioner was treated differently than other similarly situated prisoners in California, the state could justify that treatment by showing a rational basis for the treatment. City of Cleburne, 473 U.S. at 440; San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 55 (1973) ("The constitutional standard under the Equal Protection Clause is whether the challenged state action rationally furthers a legitimate state purpose or interest."). Also, Petitioner has not alleged differing treatment of similarly situated inmates. Rather, he alleges statewide treatment of all inmates due to budget cuts. His claim fails to state an equal protection claim.
Finally, with respect to Petitioner's claim that he may or may not be able to achieve favorable parole eligibility determination factors, or may accrue unfavorable factors, due to the overcrowding or budgetary cutbacks, such allegations are too attenuated and conjectural to provide a basis for habeas relief. Even assuming Petitioner could succeed on this claim, such a showing would not entitle him to release from custody, and therefore such a claim does not fall within the core of federal habeas. See Edwards, 520 U.S. at 646-48 (recognizing that a prisoner's claim for an injunction barring future unconstitutional procedures did not fall within federal habeas because such prospective relief, even if available, does not necessarily imply an earlier release).
V. Conclusion and Order
Based on the foregoing, the Court:
(1) ADOPTS AS MODIFIED the findings of the United States Magistrate Judge as set forth in this Order;
(2) GRANTS Petitioner's Request for an Extension of time [Doc. No. 30];
(3) CONSTRUES the First Amended Petition in part as a civil rights complaint to the extent it presents claims cognizable under 42 U.S.C. § 1983, and DISMISSES all section 1983 claims without prejudice to Petitioner to present such claims in a separate civil rights action, if he so chooses, after he exhausts his administrative remedies;
(4) DENIES in part Respondent's Motion to Dismiss [Doc. No. 15] the First Amended Petition on the basis that Petitioner's claims are procedurally defaulted;
(5) GRANTS in part Respondent's Motion to Dismiss [Doc. No. 15] the First Amended Petition on the basis that Petitioner's claims, to the extent they are properly presented in a federal habeas proceeding, fail to present a federal claim;
(6) DISMISSES all claims in the First Amended Petition brought pursuant to 28 U.S.C. § 2254 with prejudice for failure to state a federal claim; and,
(7) DENIES a Certificate of Appealability.
IT IS SO ORDERED.