1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 23-cv-2024-JES-KSC
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RE DEFENDANT’S MOTION TO 14 SHERIFF KELLEY MARTINEZ, DISMISS [Doc. No. 12]; PLAINTIFF’S 15 Defendant. EX PARTE CLAIM OF RETALIATION [Doc. No. 19]; and 16 PLAINTIFF’S MOTION TO STRIKE 17 [Doc. No. 20]. ORDER RE PLAINTIFF’S REQUEST FOR 18 JUDICIAL NOTICE [Doc. No. 18]. 19 20 (I) Introduction 21 Petitioner Pedro Rodriguez seeks a writ of habeas corpus. Doc. No. 1. The District 22 Court previously dismissed the Petition, but petitioner, on his Motion, later obtained leave 23 to amend. Doc. Nos. 3-6. Petitioner filed an amended Petition, which respondent moved to 24 dismiss. Doc. Nos. 8, 12. Although the Court granted petitioner extra time to file a response 25 [Doc. No. 17], petitioner never opposed the Motion to Dismiss. Instead, petitioner filed a 26 Request for Judicial Notice (“the RJN”), an Ex Parte Claim of Retaliation (“the Ex Parte”), 27 and a Motion to Strike. Doc. Nos. 18, 19, 20. Respondent filed no response to either the 28 1 RJN, the Ex Parte, or the Motion to Strike. The Court now issues the following Order and 2 Report and Recommendation to the assigned District Judge. 3 (II) Petitioner’s Request for Judicial Notice 4 Petitioner requested judicial notice of an informal response filed by the Attorney 5 General of California in an unrelated state court habeas corpus proceeding. Doc. No. 18. 6 The request is GRANTED because respondent did not oppose it. See Civ. L.R. 7.1.f.3.c. 7 (III) Petitioner’s “Ex Parte Claim of Retaliation” 8 On July 8, 2024, petitioner filed the Ex Parte at issue. Doc. No. 19. Insofar as the 9 Court can interpret the filing, it appears petitioner claims he is being retaliated against for 10 engaging in various forms of protected activity, such as filing court petitions and availing 11 himself of prison grievance procedures. See generally Doc. No. 19. Because the events 12 appear to have occurred after petitioner’s conviction, the Court construes the Ex Parte as a 13 request for filing a supplemental or amended pleading pursuant to Federal Rule of Civil 14 Procedure 15. Although leave to amend is liberally granted as a rule, pleadings should not 15 be amended or supplemented when a new filing would be futile. See Lockman Found. v. 16 Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991). Lawsuits challenging the 17 conditions of confinement, as opposed to the confinement itself, must be brought under 28 18 U.S.C. § 1983, not via habeas petition. See Nettles v. Grounds, 830 F.3d 922, 933-34 (9th 19 Cir. 2016). 20 Here, the gravamen of petitioner’s complaint is that his legal mail is being held 21 hostage in a shed where he cannot access it, which he attributes to retaliation for his 22 decision to engage in various forms of protected activity. See generally Doc. No. 19. He 23 claims the withholding of his mail impedes his ability litigate various legal actions, in 24 particular a state court resentencing petition. See id. These claims relate to the conditions 25 of his present confinement, not to the constitutionality of the judgment against him. 26 Accordingly, they may not be brought as a habeas action. They may be raised, if at all, as 27 claims under section 1983, so amending or supplementing the present Petition would be 28 futile. The Ex Parte should therefore be DENIED. 1 (IV) Respondent’s Motion to Dismiss 2 Respondent moved to dismiss the Petition in its entirety on the basis that it does not 3 state a claim for relief cognizable on writ of habeas corpus. See generally Doc. No. 12. A 4 motion to dismiss pursuant to Rule 12(b)(6) “tests the legal sufficiency of a complaint.” 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In the context of habeas corpus, a 6 petitioner must allege his confinement is unconstitutional, and he is therefore entitled to be 7 released from prison. See 28 U.S.C. § 2254(a); Nettles v. Grounds, 830 F.3d 922, 933-34 8 (9th Cir. 2016). Constitutional claims that would, even if successful, not entitle the 9 petitioner to release are not cognizable habeas claims, and can only be raised, if at all, under 10 28 U.S.C. § 1983. See Nettles, 830 F.3d at 933-34. 11 The gist of the operative Petition is that petitioner lost 20 days of custody credits 12 because of unconstitutional disciplinary proceedings that (a) lacked due process in 13 violation of the Fourteenth Amendment and/or (b) amounted to cruel and unusual 14 punishment in violation of the Eighth Amendment. See Doc. No. 8-1 at 4. Respondent 15 contends this is simply false—and the Petition must therefore be dismissed—because the 16 allegedly unconstitutional disciplinary proceedings resulted in only 15 days of 17 administrative separation, rather than the loss of any custody credits. Doc. No. 12-1 at 6. 18 Although the Petition includes many documents related to the disciplinary 19 proceedings at issue, petitioner did not include the documents from his disciplinary 20 proceedings that show the nature of the discipline he received. Respondent has lodged 21 them. Doc. No. 13. Ordinarily, the Court does not consider documents outside the 22 pleadings when resolving a motion to dismiss. See Van Buskirk v. Cable News Network, 23 Inc., 284 F.3d 977, 980 (9th Cir. 2002). But documents incorporated-by-reference into a 24 pleading are part of the pleading. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 25 (9th Cir. 2018). “The doctrine prevents [litigants] from selecting only portions of 26 documents that support their claims, while omitting portions of those very documents that 27 weaken — or doom — their claims.” Id. 28 1 Here, petitioner makes extensive reference to the incidents that led to his discipline, 2 and which can be identified by incident numbers 234016099, 234022687, and 234025913. 3 See, e.g., Doc. No. 8-1 at 6-7, 9, 29-32; Doc. No. 8-2 at 9-12, 16-21, 23-26, 41-42. 4 Respondent’s lodgment includes documents from the disciplinary proceedings related to 5 these same incidents that show the discipline imposed. See generally Doc. No. 13. 6 Specifically, for incident number 234016099, petitioner received 5 days of administrative 7 separation. Doc. No. 13-1 at 7. For incident number 23402687, petitioner received 10 days 8 of administrative separation. Doc. No. 13-2 at 7. For incident number 234025913, no 9 hearing was conducted and no discipline was imposed. Doc. No. 13-3 at 2. The Court 10 concludes petitioner omitted the documents that would have doomed his claim to plead 11 around the facts that make his case subject to dismissal, and petitioner has therefore 12 implicitly incorporated-by-reference the documents lodged by respondent. Having 13 reviewed the documents, the Court concludes the Petition does not state a habeas claim 14 because the record establishes that none of the disciplinary proceedings imposed 15 consequences having any effect on the duration of petitioner’s confinement.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PEDRO RODRIGUEZ, Case No.: 23-cv-2024-JES-KSC
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION RE DEFENDANT’S MOTION TO 14 SHERIFF KELLEY MARTINEZ, DISMISS [Doc. No. 12]; PLAINTIFF’S 15 Defendant. EX PARTE CLAIM OF RETALIATION [Doc. No. 19]; and 16 PLAINTIFF’S MOTION TO STRIKE 17 [Doc. No. 20]. ORDER RE PLAINTIFF’S REQUEST FOR 18 JUDICIAL NOTICE [Doc. No. 18]. 19 20 (I) Introduction 21 Petitioner Pedro Rodriguez seeks a writ of habeas corpus. Doc. No. 1. The District 22 Court previously dismissed the Petition, but petitioner, on his Motion, later obtained leave 23 to amend. Doc. Nos. 3-6. Petitioner filed an amended Petition, which respondent moved to 24 dismiss. Doc. Nos. 8, 12. Although the Court granted petitioner extra time to file a response 25 [Doc. No. 17], petitioner never opposed the Motion to Dismiss. Instead, petitioner filed a 26 Request for Judicial Notice (“the RJN”), an Ex Parte Claim of Retaliation (“the Ex Parte”), 27 and a Motion to Strike. Doc. Nos. 18, 19, 20. Respondent filed no response to either the 28 1 RJN, the Ex Parte, or the Motion to Strike. The Court now issues the following Order and 2 Report and Recommendation to the assigned District Judge. 3 (II) Petitioner’s Request for Judicial Notice 4 Petitioner requested judicial notice of an informal response filed by the Attorney 5 General of California in an unrelated state court habeas corpus proceeding. Doc. No. 18. 6 The request is GRANTED because respondent did not oppose it. See Civ. L.R. 7.1.f.3.c. 7 (III) Petitioner’s “Ex Parte Claim of Retaliation” 8 On July 8, 2024, petitioner filed the Ex Parte at issue. Doc. No. 19. Insofar as the 9 Court can interpret the filing, it appears petitioner claims he is being retaliated against for 10 engaging in various forms of protected activity, such as filing court petitions and availing 11 himself of prison grievance procedures. See generally Doc. No. 19. Because the events 12 appear to have occurred after petitioner’s conviction, the Court construes the Ex Parte as a 13 request for filing a supplemental or amended pleading pursuant to Federal Rule of Civil 14 Procedure 15. Although leave to amend is liberally granted as a rule, pleadings should not 15 be amended or supplemented when a new filing would be futile. See Lockman Found. v. 16 Evangelical Alliance Mission, 930 F.2d 764, 772 (9th Cir. 1991). Lawsuits challenging the 17 conditions of confinement, as opposed to the confinement itself, must be brought under 28 18 U.S.C. § 1983, not via habeas petition. See Nettles v. Grounds, 830 F.3d 922, 933-34 (9th 19 Cir. 2016). 20 Here, the gravamen of petitioner’s complaint is that his legal mail is being held 21 hostage in a shed where he cannot access it, which he attributes to retaliation for his 22 decision to engage in various forms of protected activity. See generally Doc. No. 19. He 23 claims the withholding of his mail impedes his ability litigate various legal actions, in 24 particular a state court resentencing petition. See id. These claims relate to the conditions 25 of his present confinement, not to the constitutionality of the judgment against him. 26 Accordingly, they may not be brought as a habeas action. They may be raised, if at all, as 27 claims under section 1983, so amending or supplementing the present Petition would be 28 futile. The Ex Parte should therefore be DENIED. 1 (IV) Respondent’s Motion to Dismiss 2 Respondent moved to dismiss the Petition in its entirety on the basis that it does not 3 state a claim for relief cognizable on writ of habeas corpus. See generally Doc. No. 12. A 4 motion to dismiss pursuant to Rule 12(b)(6) “tests the legal sufficiency of a complaint.” 5 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In the context of habeas corpus, a 6 petitioner must allege his confinement is unconstitutional, and he is therefore entitled to be 7 released from prison. See 28 U.S.C. § 2254(a); Nettles v. Grounds, 830 F.3d 922, 933-34 8 (9th Cir. 2016). Constitutional claims that would, even if successful, not entitle the 9 petitioner to release are not cognizable habeas claims, and can only be raised, if at all, under 10 28 U.S.C. § 1983. See Nettles, 830 F.3d at 933-34. 11 The gist of the operative Petition is that petitioner lost 20 days of custody credits 12 because of unconstitutional disciplinary proceedings that (a) lacked due process in 13 violation of the Fourteenth Amendment and/or (b) amounted to cruel and unusual 14 punishment in violation of the Eighth Amendment. See Doc. No. 8-1 at 4. Respondent 15 contends this is simply false—and the Petition must therefore be dismissed—because the 16 allegedly unconstitutional disciplinary proceedings resulted in only 15 days of 17 administrative separation, rather than the loss of any custody credits. Doc. No. 12-1 at 6. 18 Although the Petition includes many documents related to the disciplinary 19 proceedings at issue, petitioner did not include the documents from his disciplinary 20 proceedings that show the nature of the discipline he received. Respondent has lodged 21 them. Doc. No. 13. Ordinarily, the Court does not consider documents outside the 22 pleadings when resolving a motion to dismiss. See Van Buskirk v. Cable News Network, 23 Inc., 284 F.3d 977, 980 (9th Cir. 2002). But documents incorporated-by-reference into a 24 pleading are part of the pleading. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 25 (9th Cir. 2018). “The doctrine prevents [litigants] from selecting only portions of 26 documents that support their claims, while omitting portions of those very documents that 27 weaken — or doom — their claims.” Id. 28 1 Here, petitioner makes extensive reference to the incidents that led to his discipline, 2 and which can be identified by incident numbers 234016099, 234022687, and 234025913. 3 See, e.g., Doc. No. 8-1 at 6-7, 9, 29-32; Doc. No. 8-2 at 9-12, 16-21, 23-26, 41-42. 4 Respondent’s lodgment includes documents from the disciplinary proceedings related to 5 these same incidents that show the discipline imposed. See generally Doc. No. 13. 6 Specifically, for incident number 234016099, petitioner received 5 days of administrative 7 separation. Doc. No. 13-1 at 7. For incident number 23402687, petitioner received 10 days 8 of administrative separation. Doc. No. 13-2 at 7. For incident number 234025913, no 9 hearing was conducted and no discipline was imposed. Doc. No. 13-3 at 2. The Court 10 concludes petitioner omitted the documents that would have doomed his claim to plead 11 around the facts that make his case subject to dismissal, and petitioner has therefore 12 implicitly incorporated-by-reference the documents lodged by respondent. Having 13 reviewed the documents, the Court concludes the Petition does not state a habeas claim 14 because the record establishes that none of the disciplinary proceedings imposed 15 consequences having any effect on the duration of petitioner’s confinement. The Petition 16 should be dismissed without leave to amend because there is no conceivable way 17 petitioner could cure this fatal defect in the pleadings. 18 (V) Petitioner’s Motion to Strike 19 Petitioner moves to strike the declaration of sergeant Luis Gomez [Doc. No. 16-1] 20 on the basis that it is false and thereby constitutes a “fraud on the court.” Doc. No. 20. The 21 declaration in question was filed in response to the Court’s order, which directed 22 respondent to file a response to an earlier ex parte application filed by petitioner. See Doc. 23 Nos. 15, 16. The Court construed petitioner’s ex parte as a request for more time to respond 24 to the pending Motion to Dismiss, and, having heard from respondent, granted petitioner 25 more time. Doc. No. 17. Having granted petitioner relief on the ex parte application to 26 extend time, the Motion to Strike the declaration should be denied as moot or, in the 27 alternative, denied on the merits because petitioner offers nothing other than rank 28 speculation that a “fraud on the court” has been committed. 1 (VID Conclusion 2 Petitioner’s request for judicial notice is GRANTED. The Court recommends the 3 || District Judge issue an Order DENYING the Ex Parte (which is in substance a motion for 4 ||leave to amend and file a supplemental pleading); DENYING the Motion to Strike; and 5 || DISMISSING the Petition without leave to amend. 6 Any party may file an Objection to this Report and Recommendation and Order by 7 September 25, 2024. Responses to any objections shall be filed no later than October 9, 8 2024. 9 10 Dated: August 26, 2024 JE. Le
D Hori. Karen 8S. Crawford United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28