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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 FLOYD DEWAINE SCOTT, Case No. CV 20-8046-JVS (KK) 11 Petitioner, ORDER SUMMARILY DISMISSING ACTION WITH PREJUDICE 12 v.

13 C. JOHNSON, Warden,

14 Respondent.

15 16 17 I. 18 INTRODUCTION 19 Petitioner Floyd Dewaine Scott (“Scott”), an inmate at California State Prison – 20 Los Angeles County (“CSP-LAC”), filed a pro se Petition for Writ of Habeas Corpus 21 (“Petition”) under

(“Section 2254”). See ECF Docket No. (“Dkt.”) 22 1 at 14. The Petition purports to challenge an August 22, 2019 disciplinary hearing 23 that resulted in 60 days of no phone, yard, recreation, or day room privileges, and the 24 loss of 30 days good time credit.

. On September 14, 2020, the Court issued 25 an Order to Show Cause Why this Action Should Not Be Summarily Dismissed for 26 Failure to State a Cognizable Habeas Claim (“OSC”). Dkt. 6. On October 1, 2020, 27 Scott filed a response to the OSC. Dkt. 7. For the reasons discussed below, the 1 II. 2 SUMMARY OF PROCEEDINGS 3 On August 26, 2020, Scott constructively filed1 the instant Petition. Dkt. 1. 4 The Petition sets forth four “grounds for relief.”

at 14–23. 5 Ground One alleges CSP-LAC correctional officer J. Fernald (“Fernald”) filed 6 a false Rules Violation Report (“RVR”) against Scott without first issuing a verbal 7 warning and retaliated against Scott for filing a 602 Appeal form.

at 15–18. Scott 8 “seeks to have (A) The False RVR . . . removed from his Prison Perso[n]nel File, [and] 9 (B) Criminal Charges brought against J. Fernald[.]”

. 10 Ground Two alleges J. Varela (“Varela”), the senior hearing officer at Scott’s 11 August 22, 2019 disciplinary hearing, violated Scott’s due process and Eighth 12 Amendment rights by denying his request for a polygraph test and declining to require 13 supplemental reports from other correctional officers.

at 19–20. Scott seeks to 14 have Varela prosecuted for violating his constitutional rights.

. 15 Ground Three alleges D. Barbato (“Barbato”), A.F. Martinez (“Martinez”), and 16 M. Hodges (“Hodges”) violated Scott’s due process and Eighth Amendment rights. 17

at 20–22. Scott claims Barbato “classified the False RVR”; Martinez “failed to 18 correct the False RVR” or allow Scott to take a polygraph test; and Hodges “[failed] 19 to correct the False RVR,” “fully investigate the RVR,” and “seek the Supplemental 20 Reports from the [relevant] C/O’s[.]”

Scott seeks to have the RVR “removed 21 from [his] CDCR Person[n]el File with all copies and the Original Removed and given 22 to [him.]”

. 23 Ground Four alleges the state courts failed to hold an evidentiary hearing in 24 each of Scott’s Petitions for Writ of Habeas Corpus seeking to remove the RVR on 25 the grounds that prison staff violated his due process and Eighth Amendment rights. 26 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 27 pleading to mail to court, the Court deems the pleading constructively filed on the 1

; dkt. 7 at 9. Scott claims the state courts violated his due process and Sixth 2 Amendment right “to meaningful access to the Courts when they failed to hold an 3 evidentiary hearing.”2 Dkt. 1 at 22. 4 On September 14, 2020, the Court issued an OSC as to why the Petition 5 should not be dismissed for failure to state a cognizable claim. Dkt. 6 at 2. Scott was 6 instructed to respond no later than October 2, 2020 by 1) filing “a written response 7 explaining why Scott’s claims are cognizable on habeas review,” 2) filing “a First 8 Amended Petition curing” the failure to state a cognizable claim, or 3) voluntarily 9 dismissing this action with prejudice.

. 10 On October 1, 2020, Scott filed a response to the OSC, arguing the Petition 11 states a cognizable claim. Dkt. 7 at 1. 12 III. 13 THE PETITION FAILS TO STATE A COGNIZABLE CLAIM 14 A. APPLICABLE LAW 15 A district court may entertain a petition for writ of habeas corpus filed by a 16 person in state custody “only on the ground that he is in custody in violation of the 17 Constitution or laws or treaties of the United States.”

(a); Estelle v. 18 McGuire,

(1991). “Challenges to the validity of any confinement or to 19 particulars affecting its duration are the province of habeas corpus; requests for relief 20 turning on circumstances of confinement may be presented in” an action pursuant to 21

(“Section 1983”). Muhammad v. Close,

(2004) 22 (citation omitted). Thus, “when a prisoner’s claim would not necessarily spell 23 speedier release, that claim does not lie at the core of habeas corpus and may be 24 2 It is not clear from the Petition what relief Scott is seeking as a result of the 25 state courts’ failure to hold evidentiary hearings. To the extent Scott is requesting either this Court order the state courts to hold an evidentiary hearing or this Court to 26 hold an evidentiary hearing, such relief is not available where, as here, the underlying claims are not cognizable for the reasons discussed below. See Schriro v. Landrigan, 27

(2007) (“[I]f the record refutes the applicant’s factual allegations or 1 brought, if at all, under [Section] 1983.” Skinner v. Switzer,

, 535 n.13 2 (2011) (internal citation and quotation marks omitted); see also Nettles v. Grounds, 3

(9th Cir. 2016) (holding a Section 1983 action “is the exclusive 4 vehicle for claims brought by state prisoners that are not within the core of habeas 5 corpus”). 6 In addition, under Federal Rule of Civil Procedure 8 (“Rule 8”), a habeas 7 petition must contain a “short and plain statement of the claim showing the pleader is 8 entitled to relief,” and “[e]ach allegation must be simple, concise, and direct.” FED. R. 9 CIV. P. 8(a), (d); see Petillo v. Los Angeles Dep’t. of Child. & Fam. Servs., No. CV 17- 10 08062-JFW (AS),

, at *1 (C.D. Cal. Feb. 7, 2018) (applying Rule 8 11 standards to a habeas petition); Mayle v. Felix,

(2005) (“Rule 2(c) of 12 the Rules Governing Habeas Corpus Cases requires a more detailed statement [than 13 Rule 8]. The habeas rule instructs the petitioner to ‘specify all the grounds for relief 14 available to [him]’ and to ‘state the facts supporting each ground.’”); Rule 2(c) of the 15 Rules Governing Section 2254 Cases in the United States District Courts.3 16 B. ANALYSIS 17 Here, success on the Petition would not “necessarily spell speedier release”; 18 therefore, Scott’s claims “do not lie at the core of habeas corpus.” Skinner,

at 535 n.13. Rather, the specific relief Scott appears to request is that the RVR be 20 removed from his file and correctional officers Fernald and Varela be criminally 21 prosecuted for their actions. Dkt. 1 at 18, 20; Dkt. 7 at 11. Scott does not seek to 22 have the August 22, 2019 disciplinary hearing reversed, nor does he seek to have his 23 good time credits restored. In fact, Scott states, “the 30 days lost of good time credits 24 were automatically restored.” Dkt. 7 at 5, 11.4 In addition, while Scott speculates the 25 3 Rules Governing Section 2254 Cases in the United States District Courts, 26 ADMINISTRATIVE OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/sites/ default/files/rules_governing_section_2254_and_2255_cases_in_the_u.s._district_co 27 urts_-_dec_1_2019.pdf (last visited Oct. 23, 2020). 4 If in fact the 30 days of good time credits lost were automatically restored, any 1 | RVR “can extend a prison stay with a parole board,” id. at 7, he fails to demonstrate 2 | collateral consequences are likely to result from the RVR. See Johnson v. McDonald, 3 | No. CIV $10-1641-FCD-CMK-P,

, at *1 (E.D. Cal. Feb. 28, 2011) 4 | [In the prison disciplinary context, collateral consequences can be proven if the 5 | petitioner can show consequences which are not speculative or ephemeral but are 6 | likely to result from the disciplinary action being challenged.”). 7 Accordingly, based on the relief sought, the claims in the Petition are not 8 | cognizable on habeas review and must be brought, if at all, under Section 1983.5 9 IV. 10 ORDER 11 Thus, this Court ORDERS Judgment be entered summarily DISMISSING this 12 | action with prejudice. 13 14 A ff 15 Dated: October 29, 2020 tI J HONORABLE JAMESW. SELNA 16 United States District Jidge 17 Presented by: 18 19 20 Keahy he 21 | HONORABLE KENLY KIYA KATO 39 United States Magistrate Judge 23 | Feb. 28, 2011) (finding no relief can be granted because the credits have already been restored and dismissing the petition as moot). 24 | 5 When a prisoner’s claim is not cognizable in habeas corpus, the Court may 95, | construe the petition as a civil rights complaint. See Wilwording v. Swenson, 404 □□□□ 249, 251 (1971), superseded by statute on other grounds as recognized in Woodford 1% |& Ngo,

(2006). Here, however, converting the Petition to a civil rights action would Impose burdensome constraints—such as a significantly higher filing fee, the means of collecting it, and restrictions on future filings—that could make conversion more disadvantageous than dismissal of the Petition with prejudice to 28 filing a civil rights complaint. See Nettles,

. The Court, thus, declines to recharacterize the Petition as a civil rights complaint.