Opinion
CIVIL ACTION 01-0065-BH-S.
February 7, 2001.
REPORT AND RECOMMENDATION
Petitioner, an Alabama prison inmate proceeding pro se, filed a petition under 28 U.S.C. § 2241. This action was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4) for appropriate action. It is recommended that the petition be dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner also filed another court's form for an Affidavit in Support of Request to Proceed In Forma Pauperis, which due to this action's disposition is not being ruled upon.
Rule 1 of the Rules Governing Section 2254 Cases in the United States District Courts provides: "In applications for habeas corpus in cases not covered by subdivision (a), these rules may be applied at the discretion of the United States district court."
Petitioner filed a petition complaining about his conditions of confinement at J.O. Davis Correctional Facility. Petitioner requests injunctive and declaratory relief for violations of his Fifth, Sixth, Eighth and Fourteenth Amendment rights. The specific conditions about which he complains are: overcrowding, violence, smoking, noise in the dorms at night, insufficient medical care, inadequate clothing, overcrowded vans, charging $3.00 for medical treatment, inadequate protection, lack of classification, inadequate bathrooms facilities, no fire exits, no law library, no persons trained in the law, denial of access to the courts, lack of paper and carbon paper, unsanitary kitchen and food service, unwholesome food, lack of a white barber for white inmates, and guards using offensive language.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts provides, in part:
The original petition shall be presented promptly to a judge of the district court in accordance with the procedure of the court for the assignment of its business. The petition shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified.
The traditional purpose of habeas corpus relief is the "immediate or [a] more speedy release" from custody. Prieser v. Rodriguez, 411 U.S. 492, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439 (1973); see Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) ("[T]he purpose of [the writ of habeas corpus] is not to redress civil injury, but to release the applicant from unlawful physical confinement."). The writ of habeas corpus is available to a prisoner who challenges the constitutionality of the basis of his custody. Price v. Bamberg, 845 F. Supp. 825, 827 (M.D. Ala. 1993) (interpreting § 2241(c)(3)'s language of "in custody in violation of the Constitution or laws or treatises of the United States" as extending habeas corpus relief only to a prisoner challenging the constitutionality of the basis of his custody). The writ of habeas corpus does not extend to challenges to the conditions of confinement. Id. Moreover, a prisoner is not entitled to release from confinement if the conditions of confinement violate the Eighth Amendment. Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990) (reviewing decisions of circuit courts of appeals holding that conditions of confinement may not be reviewed in a habeas corpus proceeding); see Fernandez v. United States, 941 F.2d 1488, 1494 (11th Cir. 1991).
Petitioner's allegations concern only his conditions of confinement. Thus, it is readily apparent from the face of the petition that Petitioner is not entitled to any habeas relief in this Court. Moreover, the only relief that can be gained in a habeas action is an immediate or speedier release from custody. Therefore, aside from release, injunctive or declaratory relief is unavailable in a habeas action. Accordingly, it is recommended that Petitioner's § 2241 petition be dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
Petitioner's allegations are typically presented in an action under 42 U.S.C. § 1983. The Court notes that Petitioner is unable to bring this petition under 42 U.S.C. § 1983 without paying the full $150.00 filing at the time of filing. See 28 U.S.C. § 1915(g) (requires that the filing fee be paid at the time of filing if the prisoner "has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury."). It appears that § 1915(g) would be applicable to a § 1983 action based on the present allegations because as a prisoner, Petitioner has filed at least four actions that were dismissed as frivolous. See Howard v. Boutwell, et al., 92-A-0832-N (M.D. Ala. Aug. 12, 1992); Howard v. Thigpen, et al., 92-A-1503-N (M.D. Ala. Feb. 23, 1993); Howard v. Barfoot, et al., 93-H-0404-N (M.D. Ala. June 2, 1993); and Howard, et al., v. Jones, et al., 94-D-0622-N (M.D. Ala. Aug. 22, 1994). Furthermore, it is evident from the present allegations that Petitioner is not under imminent danger of serious physical injury.