Opinion
Case No. CIV-20-806-PRW
09-09-2020
BALINDA ISMAEL, Petitioner, v. JOHN B. FOX, Respondent.
REPORT AND RECOMMENDATION
Balinda Ismael, a federal prisoner proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). U.S. District Judge Patrick R. Wyrick has referred this matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). Upon initial review, the Petition should be DISMISSED.
I. SCREENING REQUIREMENT
The Court is required to review habeas petitions promptly and to "summarily dismiss [a] petition without ordering a responsive pleading," Mayle v. Felix, 545 U.S. 644, 656 (2005), "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." See R. 4, R. Governing § 2254 Cases in U.S. Dist. Ct.
The district court may apply any or all" of the Rules governing § 2254 cases to a habeas petition brought under § 2241. R. 1(b), R. Governing § 2254 Cases in U.S. Dist. Ct. --------
II. BACKGROUND
On April 30, 2020, Mr. Ismael got into a physical altercation with prison officials after failing to comply with orders to return to his cell. (ECF No. 1-2). Following the altercation, Petitioner was placed in the restrictive housing unit (RHU) pending an investigation of the incident. (ECF No. 1-1:1-2). On August 12, 2020, Petitioner filed a Petition for a writ of habeas corpus under 28 U.S.C. § 2241, alleging three grounds for relief:
• Ground One: a violation of Due Process because he is being detained in RHU on a "fabricated incident report" and without a hearing;(ECF No. 1:6). As relief, Petitioner requests release from RHU and a preliminary injunction preventing further harassment, threats and harm. (ECF No. 1:7).
• Ground Two: a violation of Equal Protection due to racial discrimination because "all inmates of other races have come and have had DHO hearings and left RHU apart from [him]self;" and
• Ground Three: a violation of the First Amendment through improper retaliation in the form of a denial of court access.
III. DISMISSAL OF THE PETITION
Habeas corpus review is available under § 2241 if an individual is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). The fundamental purpose of a § 2241 habeas proceeding is to allow a person in custody to attack the legality of that custody, and the " 'traditional function of the writ is to secure release from illegal custody.' " McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). "Though the Supreme Court has not set the precise boundaries of habeas actions, it has distinguished between habeas actions and those challenging conditions of confinement...." Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000). The Tenth Circuit Court of Appeals has "endorsed this distinction." Id.
A prisoner who challenges the fact or duration of his confinement and seeks immediate release or a shortened period of confinement, must do so through an application for habeas corpus. Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012). "In contrast, a prisoner who challenges the conditions of his confinement must do so through a civil rights action." Id.; see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011) ("It is well-settled law that prisoners who wish to challenge only the conditions of their confinement ... must do so through civil rights lawsuits ... not through federal habeas proceedings."). The Court should conclude that the Petition is improper under 28 U.S.C. § 2241 and dismiss the action.
The Tenth Circuit Court of Appeals addressed similar circumstances in Buhl v. Berkebile, 597 F. App'x 958 (10th Cir. 2014). In Buhl, a federal inmate filed a petition under 28 U.S.C. § 2241, alleging that he was being wrongly held in the prison's special housing unit based on an "erroneous incident report." Buhl v. Berkbile, 597 F. App'x at 958. The inmate alleged violations of Due Process and Equal Protection and as relief, requested release from the special housing unit. Id. The district court dismissed the petition and the Tenth Circuit affirmed, stating:
The district court correctly ruled that Mr. Buhl had failed to state grounds for relief under § 2241.... [A] request by a federal prisoner for a change in the place of confinement is properly construed as a challenge to the conditions of confinement and, thus, must be brought pursuant to Bivens [v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) ].... Mr. Buhl does not ... challenge the duration of his confinement. Instead, he alleges that he was placed in a special housing unit and asks to be released into the general prison population or transferred from the prison. Because Mr. Buhl challenges only the conditions of his confinement, the district court did not err in ruling that his claim could not proceed in habeas.Id. at 959.
Buhl v. Berkebile is persuasive. Here, Mr. Ismael does not challenge the duration of his confinement or otherwise seek to shorten his sentence. Instead, he is complaining of conditions related to his confinement in the RHU and seeks only to have those conditions changed. See ECF No. 1. As a result, he cannot proceed under Section 2241 and the Court should dismiss the Petition, without prejudice.
IV. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
Based upon the foregoing analysis, it is recommended that the Petition be DISMISSED, without prejudice.
Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by September 28, 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Petitioner is further advised that failure to make timely objection to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
V. STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED on September 9, 2020.
/s/_________
SHON T. ERWIN
UNITED STATES MAGISTRATE JUDGE