Opinion
NO. 4:02-CV-185-Y
March 27, 2002
ORDER OF SUMMARY DISMISSAL
Came on to be considered the above-styled and numbered cause wherein Petitioner has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241; On preliminary consideration of the petition by this Court pursuant to 28 U.S.C. § 2243, it appears that Petitioner is not entitled to relief in the district court and that an order of summary dismissal is appropriate because the relief sought is now moot.
Section 2243, governing applications for writ of habeas corpus, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person is not entitled thereto.28 U.S.C.A. § 2243 (West 1994) (emphasis added).
Petitioner Jason Swaissi filed this petition under 28 U.S.C. § 2241 while he was detained by the Immigration and Naturalization Service ("INS") in the Euless City jail in Euless, Texas. Swaissi's complaint is that he "don't [sic] belong in a city jail," and that as an "INS detainee [he is] not a city or county nor state inmate." (Pet. at 4, 8.) on March 14, 2002, Swaissi filed a notice of change of address informing the clerk of Court that he has been moved to an INS Processing Center in El Paso, Texas. Because the only relief sought by this petition, to not be housed in the Euless City jail, is no longer applicable, there is no basis for the instant petition and it should be dismissed as moot.
Swaissi also references his "rights to medical care, right to law material and right to court," but such claims are not properly the subject of a habeas corpus action. See generally Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) (upholding order by district court construing state prisoner's habeas corpus petition as a civil complaint and noting a "bright line rule' that if a favorable determination will not automatically entitle the prisoner to accelerated release, the case should be construed as a civil suit); see also Boyce v. Ashcrofft, 251 F.3d 911, 914 ("Prisoners who raise constitutional challenges to other prison decisions-including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g., conditions of confinement, must proceed under section 1983 or Bivens" and not under habeas statute), judgment vacated as moot, 268 F.3d 953 (10th Cir. 2001). Furthermore, Swaissi has raised these claims in a separate suit pending against individuals allegedly involved with his incarceration in the Euless city jail. See Swaissi v. Gabbert, et al. No. 4:02-CV-181-A (filed February 25, 2002).
See generally Hernandez v. Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (claims were deemed moot after petitioner had been moved out of the complained of facility, and where only relief sought was transfer to another correctional facility), citing Hooten v. Jones, 786 F.2d 692, 697 n. 6 (5th Cir. 1986) and Holland v. Purdy, 457 F.2d 802, 803 (51h Cir. 1972); see also Boyce v. Ashcrofft, 268 F.3d 953, 954 (10th cir. 2001) (§ 2241 petition became moot after transfer of prisoner seeking such relief).
It is therefore ORDERED that Petitioner's February 25, 2002 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 be, and is hereby, DISMISSED.