Steven Johnson v. Warden Canaan USP

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY JR. and SCIRICA, Circuit Judges. Total Pages: 3. BLD-350

Case: 17-1981

Document: 003112757327

Page: 1

BLD-350

Date Filed: 10/19/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1981
___________
STEVEN A. JOHNSON,
Appellant
v.
WARDEN CANAAN USP
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-17-cv-00261)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 7, 2017
Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: October 19, 2017)
_________
OPINION*
_________

PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1981

Document: 003112757327

Page: 2

Date Filed: 10/19/2017

Steven A. Johnson appeals from an order of the District Court dismissing his petition
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We will summarily
affirm.
Johnson filed his habeas petition challenging the mail procedures at the United States
Penitentiary − Canaan, where he is a federal inmate. Specifically, he alleged that he was
not receiving his magazine subscriptions, and that his legal mail was processed through
“regular mail channels” and opened outside his presence. The District Court summarily
dismissed the § 2241 petition after determining that Johnson did not attack the validity of
his detention and that the relief he sought was not available through a petition for writ of
habeas corpus. The order dismissing the petition was without prejudice to Johnson’s
right to pursue his claims in a properly filed civil rights action. This appeal ensued.
We have jurisdiction under 28 U.S.C. § 1291.1 We exercise plenary review over the
District Court’s order dismissing the § 2241 petition. See Okereke v. United States, 307
F.3d 117, 119 (3d Cir. 2002). We may summarily affirm if there is no substantial
question presented by the appeal. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6.

1

Generally, an order dismissing an action without prejudice is not immediately
appealable. Borelli v. City of Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam).
“Only if the plaintiff cannot amend or declares his intention to stand on his complaint
does the order become final and appealable.” Id. at 951–52. As discussed infra, Johnson
cannot amend his § 2241 petition to remedy the defect to his complaint; he would have to
file a different type of action. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1995). The District Court’s order thus terminated the action and was immediately
appealable. See id.
2

Case: 17-1981

Document: 003112757327

Page: 3

Date Filed: 10/19/2017

The District Court’s dismissal of Johnson’s § 2241 petition without prejudice was
proper. Section 2241 “confers habeas jurisdiction to hear the petition of a federal
prisoner who is challenging not the validity but the execution of his sentence.” Woodall
v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005). The Court correctly
reasoned that Johnson was challenging the conditions of his confinement rather than the
execution of his sentence, and thus that habeas corpus was not an available remedy. See
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).2 The proper means for seeking
relief for these conditions of confinement claims is a civil rights action against the Bureau
of Prisons under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), after available administrative remedies have been exhausted, 42
U.S.C. 1997e(a). See Jones v. Block, 549 U.S. 199, 211 (2007).
Accordingly, because this appeal does not raise a substantial question, we will
summarily affirm the judgment of the District Court.

2

Johnson cites to Lopez v. Davis, 531 U.S. 230 (2001), as authority that his claims are
cognizable in a § 2241 proceeding. His reliance is misplaced, however, as the claim in
Lopez, which challenged a Bureau of Prison’s regulation under which the petitioner was
denied early release, clearly regarded the execution of the petitioner’s sentence.
3