The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 JAMES ROCKETT, Case No. 1:21-cv-00766-HBK
12 Petitioner, FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION FOR
13 v. TEMPORARY RESTRAINING ORDER1
14 WARDEN WHITE, OBJECTIONS DUE WITHIN TWENY-ONE
DAYS
15 Respondent.
(Doc. No. 8)
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ORDER TO ASSIGN CASE TO DISTRICT
17 JUDGE
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19 Petitioner James Rockett, a federal prisoner proceeding pro se, has pending a petition for
20 writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1). Petitioner attached to his petition a
21 pleading titled “motion requesting temporary restraining order and/or emergency stay of all
22 sanctions pending exhaustion of administrative remedies.” (Id. at 14-16). The Court directed the
23 Clerk to separately docket the pleading, which the Court construes as a motion for temporary
24 restraining order. (Doc. Nos. 7, 8). For the reasons set forth below, the undersigned recommends
25 that the motion be denied.
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1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
28 (E.D. Cal. 2019).
1 I. BACKGROUND
2 Petitioner challenges on due process grounds a November 2020 disciplinary report resulting
3 in the loss of 27 days of good time credit. (See generally Doc. 1). Petitioner claims that his due
4 process rights were violated when BOP officials failed to provide Petitioner with a disciplinary
5 report after being charged with a prison rule violation, which prevented him from filing a timely
6 appeal. (Id.). On June 4, 2021, after noting that documents included in the petition included a BOP
7 memorandum dated May 3, 2021 that appeared to permit petitioner to file an untimely appeal of
8 his disciplinary violation, the Court ordered petitioner to show cause why the petition should not
9 be dismissed as unexhausted or moot. (Doc. No. 9).
10 In support of his motion for temporary restraining order, Petitioner repeats many of the
11 same arguments as those in his petition. (Doc. 8 at 1-2). Petitioner states that his due process rights
12 are being violated by the BOP policy which allows sanctions to be levied against inmates while the
13 administrative appeal process of a disciplinary hearing decision is ongoing. (Id. at 2). Petitioner
14 also complains that the U.S. mail is slow, that the decision from his appeal to the regional office
15 was delayed, that another appeal he submitted was never registered as received by the BOP, and
16 that the BOP has no system for tracking inmates’ incoming and outgoing mail. (Id.). Petitioner
17 states he will suffer irreparable harm because his impending release date of July 16, 2021 will pass
18 if the administrative process “is allowed to run its course.” (Id.). Petitioner does not identify what
19 relief he seeks in the motion. (Id. at 7).
20 II. APPLICABLE LAW AND ANALYSIS
21 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never
22 awarded as of right.” Winter v. Natural Res. Defense Council, 555 U.S. 7, 22 (2008). “A plaintiff
23 seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is
24 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities
25 tips in his favor, and that an injunction is in the public interest.” Glossip v. Gross, 135 S. Ct. 2726,
26 2736-37 (2015) (quoting Winter, 555 U.S. at 20). “[P]laintiffs must establish that irreparable harm
27 is likely, not just possible, in order to obtain a preliminary injunction.” Alliance for the Wild
28 Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). Moreover, “[b]ecause it is a threshold
1 inquiry, when ‘a plaintiff has failed to show the likelihood of success on the merits, [courts] need
2 not consider the remaining three [Winter elements].’” Garcia v. Google, Inc., 786 F.3d 733, 740
3 (9th Cir. 2015) (quoting Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d
4 937, 944 (9th Cir. 2013)).
5 Here, petitioner has not shown that he is likely to succeed on the merits of his claim and
6 therefore the court need not analyze the remaining Winter elements. As noted supra, it appears
7 Petitioner has not exhausted his administrative remedies prior to filing the instant petition. See
8 Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986). Petitioner’s imminent release does not
9 excuse his from satisfying the exhaustion requirement. Roux v. California Dep't of Corr., No.
10 3:98-CV-794 CAL, 1998 WL 34366587, at *1 (N.D. Cal. Mar. 31, 1998). Nor has Petitioner
11 alleged, yet alone, demonstrated extraordinary delay to excuse exhaustion. Coe v. Thurman, 922
12 F.2d 528, 530 (9th Cir. 1990). To the extent Petitioner claims that the BOP’s disciplinary hearing
13 process has violated his due process rights, he has stated a cognizable habeas claim. See Wolff v.
14 McDonnell, 418 U.S. 539, 556 (1974). However, Petitioner must meet a high threshold to show
15 that the BOP violated his due process rights. Due process requires written notice of the charges at
16 least twenty-four hours before the disciplinary hearing, as well as a statement of the evidence
17 relied on by the prison officials and the reasons for the disciplinary action taken. Id. at 563-66.
18 Moreover, a prison hearing officer’s determination must be supported by “some evidence in the
19 record.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). This standard is satisfied if “there is
20 any evidence in the record that could support the conclusion reached by the disciplinary
21 board.” Id. at 455-56.
22 Petitioner’s remaining claims do not appear to be cognizable on habeas review and are
23 therefore unlikely to succeed on the merits. Namely, Petitioner states that he disagrees with BOP
24 policy, that the U.S. mail system and the BOP appeals process are slow, and that the BOP has no
25 system for tracking inmates’ mail. Relief on these claims would not necessarily lead to
26 petitioner’s “immediate or earlier release from confinement” and therefore are not cognizable on
27 habeas review. Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). Accordingly, because
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1 | Petitioner has not shown a likelihood of success on the merits of his claim the Court recommends
2 | that Petitioner’s motion for temporary restraining order be denied.
3 ACCORDINGLY, the Clerk of Court is DIRECTED to assign this case to a District Judge
4 | for the purposes of reviewing these findings and recommendations.
5 Further, it is RECOMMENDED that petitioner’s motion for temporary restraining
6 | order (Doc. No. 8) be denied.
7 NOTICE TO PARTIES
8 These findings and recommendations will be submitted to the United States District Judge
9 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one
10 | (21) days after being served with these findings and recommendations, a party may file written
11 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
12 | Findings and Recommendations.” Parties are advised that failure to file objections within the
13 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,
14 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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16 IT IS SO ORDERED.
Dated: __June 7, 2021 Mila Wh fareh Base
18 HELENA M. BARCH-KUCHTA
19 UNITED STATES MAGISTRATE JUDGE
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