PERRY v. UNITED STATES FEDERAL BUREAU OF PRISONS
Filing
6
MEMORANDUM, OPINION, ORDER Petitioner's motion, docket entry #5 is GRANTED. ORDERED Clerk shall reopen this case. ORDERED Petition is DISMISSED for lack of jurisdiction and Clerk shall serve this Order upon Petitioner. ORDERED Clerk shall close this matter. Signed by Judge Noel L. Hillman on 9/6/2011. (nz, )n.m.
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEON PERRY,
Petitioner,
v.
US FBOP,
Respondent.
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Civil Action No. 10-6099 (NLH)
MEMORANDUM OPINION AND ORDER
IT APPEARING THAT:
1.
Petitioner filed a Petition for a Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2241, challenging an administrative
sanction.
2.
Since the Petition arrived unaccompanied by Petitioner's
filing fee or his in forma pauperis ("IFP") application, the
Court directed Petitioner to submit his filing fee (or a
duly executed IFP application) and administratively
terminated this matter, subject to reopening upon
Petitioner's timely compliance with the Court's directive.
3.
On June 27, 2011, Petitioner submitted his filing fee of
$5.00.
4.
The Petition arrived accompanied by an attachment; the
attachment included a detailed record of the administrative
proceedings underlying the sanction challenged by
Petitioner.
The Petition and attached record indicate that
Petitioner was sanctioned after excessive amount of stamps
was found "inside" Petitioner's mattress.
5.
The Petition also indicates that Petitioner was sanctioned
to loss of certain privileges (i.e., visitation privileges
and loss of right to commissary purchases) for the period of
90 days.
6.
However, habeas relief is not available with regard to the
sanctions allegedly suffered by Petitioner.
In a series of
cases beginning with Preiser v. Rodriguez, 411 U.S. 475
(1973), the Supreme Court analyzed the intersection of civil
rights and habeas corpus.
In Preiser, state prisoners who
had been deprived of good-conduct-time credits by the New
York State Department of Correctional Services as a result
of disciplinary proceedings brought a § 1983 action seeking
injunctive relief to compel restoration of the credits,
which would have resulted in their immediate or speedier
release.
See id. at 476.
The prisoners did not seek
compensatory damages for the loss of their credits.
at 494.
See id.
Assessing the prisoners' challenge, the Supreme
Court held that a prisoner must bring a suit for equitable
relief that, effectively, challenges "the fact or duration
of confinement" as a habeas corpus petition.
500.
See id. at
The Court of Appeals for the Third Circuit explained
2
the distinction between the availability of civil rights
relief and the availability of habeas relief as follows:
[W]henever the challenge ultimately attacks the
"core of habeas" - the validity of the continued
conviction or the fact or length of the sentence a challenge, however denominated and regardless of
the relief sought, must be brought by way of a
habeas corpus petition. Conversely, when the
challenge is to a condition of confinement such
that a finding in plaintiff's favor would not
alter his sentence or undo his conviction, an
action under § 1983 is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).1
Therefore, a prisoner is entitled to a writ of habeas corpus
only if he "seek[s] to invalidate the duration of [his]
confinement - either directly through an injunction
compelling speedier release or indirectly through a judicial
determination that necessarily implies the unlawfulness of
the [government's] custody."
U.S. 74, 81 (2005).
See Wilkinson v. Dotson, 544
In contrast, if a judgment in the
prisoner's favor would not affect the fact or duration of
the prisoner's incarceration, habeas relief is unavailable
and a civil complaint is the appropriate form of remedy.
See, e.g., Ganim v. Federal Bureau of Prisons, 235 Fed.
App'x 882 (3rd Cir. 2007) (holding that district court lacks
jurisdiction under § 2241 to entertain prisoner's challenge
1
As § 1983 action applies only to state actions, it is not
available to federal prisoners; the federal counterpart is an
action under Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388 (1971), alleging deprivation of a constitutional right.
3
to his transfer between federal prisons); Bronson v.
Demming, 56 Fed. App'x 551, 553-54 (3rd Cir. 2002) (habeas
relief was unavailable to inmate seeking release from
disciplinary segregation to general population, and district
court properly dismissed habeas petition without prejudice
to any right to assert claims in properly filed civil rights
complaint).2
7.
Therefore, Petitioner's claims are not cognizable under 28
U.S.C. § 2241 because the loss of Petitioner's visitation
and commissary privileges do not affect the fact or duration
of his confinement.
See Ganim, 235 Fed. App'x 882 (3d Cir.
2007); Bronson, 56 Fed. App'x 551 (3d Cir. 2002); Woodall v.
2
Unlike habeas actions, civil rights cases require
collection of a filing fee, either as a prepayment or a series of
installment payments. See 28 U.S.C. § 1915. The filing fee for
a habeas petition is $5.00, and inmates filing a habeas petition
who are granted in forma pauperis status do not have to pay the
filing fee. See Santana v. United States, 98 F. 3d 752 (3d Cir.
1996) (filing fee payment requirements of PLRA do not apply to in
forma pauperis habeas corpus petitions and appeals). In
contrast, the filing fee of a civil rights complaint is $350.00.
Inmates filing a civil rights complaint who proceed in forma
pauperis are required to pay the entire filing fee in monthly
installments which are deducted from the prison account. See 28
U.S.C. § 1915(b). In addition, if a prisoner has, on three or
more occasions while incarcerated, brought an action or appeal in
a federal court that was dismissed as frivolous or malicious, for
failure to state a claim upon which relief may be granted, or
because it seeks monetary relief from immune defendants, then the
prisoner may not bring another action in forma pauperis unless he
or she is in imminent danger of serious physical injury. See 28
U.S.C. § 1915(g). Because of these differences, the court
generally do not sua sponte re-characterize a habeas pleading as
a civil rights complaint.
4
Fed. Bureau of Prisons, 432 F. 3d 235, 242 n.5 (3d Cir.
2005).
Thus, Petitioner's challenges will be dismissed for
lack of habeas corpus jurisdiction.
Such dismissal will be
without prejudice to Petitioner's commencement of a civil
action based on the alleged sanctions.3
IT IS, therefore, on this
6th
day of
September , 2011,
ORDERED that Petitioner's motion, Docket Entry No. 5,
seeking restoration of this matter to the Court's active docket,
is granted; and it is further
ORDERED that the Clerk shall restore this matter to the
Court's active docket by making a new and separate entry on the
docket reading "CIVIL CASE REOPENED"; and it is further
ORDERED that the Petition, Docket Entry No. 1, is dismissed
for lack of habeas corpus jurisdiction, without prejudice to
Petitioner's initiation of a separate civil action raising the
claims asserted in this matter; and it is further
ORDERED that the Clerk shall serve a copy of this Memorandum
Opinion and Order upon Petitioner by regular U.S. mail; and it is
finally
3
This Court, however, stresses that no statement made in
this Memorandum Opinion and Order shall be construed as
expressing this Court's position as to substantive or procedural
validity (or invalidity) of Petitioner's claims in the event
these claims are raised by means of a civil complaint.
5
ORDERED that the Clerk shall close the file on this matter
by making a new and separate entry on the docket reading "CIVIL
CASE CLOSED."
/s/Noel L. Hillman
NOEL L. HILLMAN
United States District Judge
At Camden, New Jersey
6
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