NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY ROY CROSBY, No. 16-55951
Petitioner-Appellant, D.C. No. 5:15-cv-01263-VBF
v.
MEMORANDUM*
DAVID SHINN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted August 9, 2017**
Before: SCHROEDER, TASHIMA, and M. SMITH, Circuit Judges.
Federal prisoner Jeffrey Roy Crosby appeals pro se from the district court’s
judgment dismissing without prejudice his 28 U.S.C. § 2241 habeas petition. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
Crosby challenges a prison disciplinary proceeding in which he was
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
sanctioned with the disallowance of good conduct time after he was found to have
committed the prohibited acts of fighting with another person and possessing a
weapon. Crosby maintains that his procedural due process rights were violated
during the proceedings and that the evidence supported his statement that he was
attacked by another prisoner and only sought to defend himself. The record shows
that the disciplinary proceedings complied with the procedural due process
requirements delineated in Wolff v. McDonnell, 418 U.S. 539, 563-72 (1974), and
that “some evidence” supported the Disciplinary Hearing Officer’s (“DHO”)
decision, see Superintendent v. Hill, 472 U.S. 445, 455 (1985). Assuming that
Crosby is correct that prisoners have a due process right to present a self-defense
claim in prison disciplinary proceedings, the record shows that Crosby was
permitted to raise a self-defense claim before the DHO. The DHO considered the
claim and rejected it as unsupported. That finding was also supported by “some
evidence.” See id.
The district court had subject matter jurisdiction over Crosby’s section 2241
petition; therefore, the dismissal should have been on the merits and with
prejudice. See Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989) (section
2241 jurisdiction exists when a federal prisoner “claims that he has been denied
good time credits without due process”), overruled on other grounds by Nettles v.
Grounds, 830 F.3d 922, 931 (9th Cir. 2016) (en banc). We, therefore, vacate the
2 16-55951
judgment and remand with instructions to dismiss the petition with prejudice.
VACATED and REMANDED with instructions.
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