Opinion
3:24-cv-2-KAP
01-12-2024
DONALD STANLEY LAVIGNE, Petitioner v. MICHAEL UNDERWOOD, Warden, F.C.I. LORETTO Respondent
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
I recommend that petitioner Lavigne's second habeas corpus petition be denied before service under 28 U.S.C.§ 2243.
Report
This is filed as a Report and Recommendation because dismissal before service is appropriate. As the Court will recall, this is petitioner Lavigne's second petition, see Lavigne v. Underwood, Case No. 3:23-cv-285-KRG-KAP (W.D.Pa.)(pending on my recommendation that it be dismissed before service).
Lavigne alleges that beginning December 26, 2023, his free exercise of religion is being interfered with at F.C.I. Loretto (he is an inmate in the lower security camp population), and that his right to petition for redress of grievances is being violated by restrictions put on the use of some technologies (computers and typewriters) helpful to litigation efforts. The restrictions have resulted from a campwide disciplinary sanction imposed at the end of December 2023 for contraband incidents.
Lavigne is trying to bring a prison conditions case (requiring a civil complaint naming the persons responsible and a filing fee of $405, or $350 if a plaintiff were granted leave to proceed in forma pauperis) as a habeas petition (requiring only the warden as a respondent and a filing fee of $5) by asking for release as his remedy. Release would not be a proper remedy in any case. Lavigne, as he did in his first habeas petition, also attempts to smuggle in a motion to vacate by styling his remedy of release as a “release with prejudice” from his conviction and sentence because his trial was allegedly flawed. To repeat what I have already said in my pending recommendation, this Court has no jurisdiction over a motion to vacate. If Lavigne wishes to proceed at all in this court he must do so properly, by filing a complaint. It would be preferable if Lavigne also exhausted his administrative remedies before filing a complaint and named the persons allegedly responsible for violating his rights, but it is mandatory that Lavigne proceed with prison condition claims in a complaint and not a habeas petition.
As the Court has recognized many times before:
When an inmate attempts to use a habeas petition to litigate conditions of confinement, an appropriate response is to dismiss the petition for lack of subject matter jurisdiction. Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012)(affirming dismissal for lack of subject matter jurisdiction a prison conditions complaint filed as a habeas petition.) The court should do that here.Mundo-Violante v. Kirby, 2015 WL 12914319 at *1 (W.D. Pa. Jan. 12, 2015), report and recommendation adopted, 2015 WL 12916443 (W.D. Pa. Feb. 2, 2015), aff'd as modified sub nom. Mundo-Violante v. Warden Loretto FCI, 654 Fed.Appx. 49 (3d Cir. 2016).
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is advised that he has fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error.)