(PC) Foster v. Carrol

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 RONALD FOSTER, ) Case No.: 1:19-cv-01474-LJO-SAB (PC) ) 12 Plaintiff, ) ) ORDER GRANTING PLAINTIFF LEAVE TO 13 v. ) SUPPLEMENTAL INFORMATION TO OBJECTIONS TO FINDINGS AND 14 L. CARROL, et al., ) RECOMMENDATIONS FILED ) 15 Defendants. ) [ECF No. 13] ) 16 ) ) 17 ) 18 Plaintiff Ronald Foster is appearing pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983 . 20 On October 24, 2019, the Magistrate Judge issued Findings and Recommendations 21 recommending that the action be dismissed for failure to state a cognizable claim for relief. (ECF No. 22 8.) The Findings and Recommendations were served on Plaintiff and contained notice that objections 23 were due within thirty days. (Id.) After receiving two extensions of time, Plaintiff filed objections on 24 January 23, 2020. 25 Plaintiff filed objections on January 23, 2020. In his objections, Plaintiff indicates that he has 26 completed his criminal sentence and he is no longer in custody.1 However, contrary to Plaintiff’s [27] 28 1 1 contention, the mere release from physical custody does not necessarily mean he may proceed by way 2 of section 1983 complaint. 3 “Federal law opens two main avenues to relief on complaints related to imprisonment: a 4 petition for writ of habeas corpus, 28 U.S.C. § 2254 , and a complaint under … 42 U.S.C. § 1983 .” 5 Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam). “Challenges to the validity of any 6 confinement or to particulars affecting its duration are the province of habeas corpus; requests for 7 relief turning on circumstances of confinement may be presented in a § 1983 action.” Id. (internal 8 citation omitted). A prisoner’s claims are within the core of habeas corpus if they challenge the fact or 9 duration of his conviction or sentence. Nettles v. Grounds, 830 F.3d 922, 934 (9th Cir. 2016) (en 10 banc), cert. denied, 137 S.Ct. 645 (2017). 11 Often referred to as the favorable termination rule or the Heck bar, this exception to section 12 1983’s otherwise broad scope applies whenever state prisoners “seek to invalidate the duration of their 13 confinement-either directly through an injunction compelling speedier release or indirectly through a 14 judicial determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson v. 15 Dotson, 544 U.S. 74, 81 (2005); Heck v. Humphrey, 512 U.S. 477, 482, 486-487 (1994); Edwards v. 16 Balisok, 520 U.S. 641, 644 (1997). Thus, “a state prisoner’s [section] 1983 action is barred (absent 17 prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the 18 prisoner’s suit (state conduct leading to conviction or internal prison proceedings)-if success in that 19 action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson, 544 20 U.S. at 81-82. 21 A “narrow exception” to the favorable termination rule exists where a § 1983 plaintiff 22 challenging a prison disciplinary determination, who no longer meets the “in custody” requirement for 23 filing a habeas petition, has diligently pursued relief. See Guerrero v. Gates, 442 F.3d 697 , 704-05 24 (9th Cir. 2006); Nonnette v. Small, 316 F.3d 872, 876-77 (9th Cir. 2002). That exception only applies 25 when the former prisoner plaintiff “challenges loss of good-time credits, revocation of parole or 26 similar matters,” it does not apply to challenging underlying convictions. Lyall v. City of Los 27 Angeles, 807 F.3d 1178, 1192 (9th Cir. 2015). 28 /// 1 California and federal habeas jurisprudence require a petitioner to be “in custody” at the time 2 that a habeas petition is filed. 28 U.S.C. § 2254 (a); Maleng v. Cook, 490 U.S. 488, 490-91 (1989); 3 Bailey v. Hill, 599 F.3d 976, 980 (9th Cir. 2010); In re Douglas, 200 Cal.App.4th 236, 246-47 (Cal. 4 Ct. App. 2011). The “in custody” requirement is met if, at the time of filing the petition, the habeas 5 petitioner is in physical custody, Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968); In re Douglas, 200 6 Cal.App.4th at 246-47, is on parole from an unexpired sentence, Maleng, 490 U.S. at 491 (citing Jones 7 v. Cunningham, 371 U.S. 236, 242 (1963) (emphasizing that the petitioner was “confined by the 8 parole order to a particular community, house, and job at the sufferance of his parole officer”); In re 9 Jones, 57 Cal.2d 860, 861 (1962), or is on probation, In re Ossio, 51 Cal.2d 371, 376 (1958). In each 10 of those situations, the petitioner is subject to the control of the state, limited in liberty, and at risk of 11 resumption of (or actually in) physical custody as a result of the criminal conviction. The same is not 12 true of a former prisoner who seeks to challenge the outcome of a rules violation report. After release 13 from custody, a former prisoner faces no limitation on liberty as a result of an erroneous disciplinary 14 violation, even with an attendance loss of time credits. Accordingly, a habeas corpus cannot be used 15 to challenge a disciplinary violation after release from custody because the former prisoner is no 16 longer “in custody.” 17 Here, the complaint does not contain sufficient facts to determine whether or not Plaintiff’s 18 claim is barred by Heck v. Humphrey, 512 U.S. 477 . Although Plaintiff is out of custody, he does not 19 indicate whether he is subject to parole and/or probation. Therefore, the Court cannot determine 20 whether Plaintiff can proceed with any potential claims in this action. Nor does Plaintiff indicate 21 whether he has sought relief by way of habeas corpus which may impact his ability to proceed in this 22 action. Thus, Plaintiff will be granted the opportunity to supplement his objections, and in any 23 supplement Plaintiff must identify whether he is subject to parole and/or probation, and whether he 24 filed any habeas corpus petition raising the challenge presented here. 25 /// 26 /// 27 /// 28 /// 1 Based on the foregoing, it is HEREBY ORDERED that: 2 1. Plaintiff is granted twenty (20) days from the date of service of this order to □□□□□□□□□ 3 || his objections; and 4 2. If Plaintiff fails to supplement his objections, the Court will proceed with the objectior 5 |} on file. [6] 7 IS SO ORDERED. A (ee 8 Dated: _ January 24, 2020 OF 9 UNITED STATES MAGISTRATE JUDGE