Forrest Richardson v. James Yates , 435 F. App'x 625 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FORREST M. RICHARDSON, No. 10-15974
Petitioner - Appellant, D.C. No. 2:08-cv-02964-FCD-
EFB
v.
JAMES YATES, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted May 9, 2011
San Francisco, California
Before: HUG and PAEZ, Circuit Judges, and O’GRADY,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Liam O’Grady, District Judge for the U.S. District
Court for Eastern Virginia, Alexandria, sitting by designation.
California state prisoner Forrest M. Richardson1 (“Richardson”) appeals
from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We
have jurisdiction under 28 U.S.C. § 2253, and we affirm.
A challenge to a condition of imprisonment, as opposed to a challenge to the
fact or duration of imprisonment, is not a cognizable habeas claim. Ramirez v.
Galaza, 334 F.3d 850, 859 (9th Cir. 2003).
Richardson contends that the prison officials’ 2007 disciplinary finding for
violating prison conduct rules will affect the duration of his imprisonment because
it might be viewed disfavorably by the Board of Parole Hearings and decrease his
chance of a favorable parole decision. These potential consequences of his
misconduct violation are too speculative to establish habeas corpus jurisdiction.
See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding that habeas jurisdiction
did not exist for claims seeking relief that would invalidate state procedures used to
deny eligibility and suitability for parole); Ramirez, 334 F.3d at 859 (stating that
“habeas jurisdiction is absent, and a § 1983 action proper, where a successful
challenge to a prison condition will not necessarily shorten the prisoner’s
sentence.”); cf. Docken v. Chase, 393 F.3d 1024, 1031 (9th Cir. 2004) (holding that
1
We grant the Petitioner’s motion to take judicial notice of the docket and
record in Forrest M. Richardson v. D.K. Sisto, Warden, et. al., No. 2:10-CV-
00025-GEB-EFB.
2
claim regarding frequency of parole review was cognizable in habeas). We
therefore conclude that the district court did not err in dismissing Richardson’s
habeas petition.
Finally, relying on Heck v. Humphrey, Richardson argues that before he can
properly pursue a 42 U.S.C. § 1983 action, he must first expunge the disciplinary
conviction at issue. 512 U.S. 477 (1994). As the State conceded at argument,
because Richardson’s misconduct conviction did not affect the length of his
confinement, he may pursue a § 1983 action without first complying with the rule
in Heck. See Ramirez, 334 F.3d at 858. We agree, and conclude that Richardson is
not barred from pursuing his § 1983 action noted above.
AFFIRMED
3