Coplen v. Berkabile
ORDER DENYING PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2241 1 as amended by 17 . Petition for Relief Pursuant to 28 U.S.C. § 2241 1 is DENIED and this case is DISMISSED without prejudice for lack of subject-matter jurisdiction; each party to bear its own costs and fees. By Magistrate Judge Michael J. Watanabe on 10/29/2014. (emill)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action 14-cv-01881-MJW
SCOTT ALEX COPLEN,
DAVID B. BERKEBILE, Warden,
ORDER DENYING PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2241
(Docket No. 1, as amended by Docket No. 17)
MICHAEL J. WATANABE
United States Magistrate Judge
Scott Coplen is serving life in a federal prison, for carjacking with intent to cause
death or serious bodily harm. While incarcerated at Florence ADX (a maximum-security
facility), he allegedly wrote a sexually profane letter to a guard at his facility. Coplen
was in the “step-down” unit at the time—a unit where, with good behavior, he could
transition out of maximum security and into a general-population facility. As a result of
the letter, he was taken out of the step-down unit and placed back into maximum
security. He asks this Court1 to vacate that sanction under 28 U.S.C. § 2241.
Because the sanction did not impact the length of his sentence (such as through
the loss of good-time credits), Coplen’s claim is not a cognizable habeas claim. It also
fails to state a claim under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The Court therefore denies the petition.
The parties have consented to have this case resolved in its entirety by a magistrate
judge, under 28 U.S.C. § 636(c). (Docket Nos. 18, 19.)
Early in the morning on March 1, 2013, an officer retrieved the outgoing inmate
mail at Florence ADX and found an envelope addressed to one of the female guards.
The envelope contained both a pornographic picture and a sexually explicit letter. The
letter was signed with another inmate’s name—but according to the incident report, a
surveillance video showed that Coplen put the letter in the mailbox, and a handwriting
comparison indicated that he wrote it. (Docket No. 1, p. 15.)
For purposes of his disciplinary hearing, Coplen submitted a written statement.
He did not deny placing the envelope in the mailbox. Rather, he denied knowledge of
the envelope’s contents and alleged that another inmate asked him to do it. He further
A handwriting comparison could not be a match;
Another inmate was also punished for writing the letter, also based on a
supposed handwriting comparison;
The warden had a confidential-informant inmate working to “set up” other
inmates for disciplinary actions, and that informant’s fingerprints would be
on all letters and envelopes of this nature; and
This informant gave Coplen the envelope to mail, which the surveillance
video could show.
Also for purposes of the hearing, Coplen also asked to review the surveillance video, for
a formal handwriting analysis, for a fingerprint analysis, to take a polygraph test, and to
call as a witness the other inmate allegedly punished for the letter. (Docket No. 25-1,
pp. 24–28.) The disciplinary hearing officer denied all of these evidentiary requests, but
did take statements from the three staff witnesses identified by Coplen. Two of the
witnesses provided no comment. The third stated that he had no knowledge of the
incident, but that he had never seen Coplen engage in conduct of this nature and would
not expect such behavior from him. (Docket No. 25-1, pp. 21–23.)
The hearing officer found Coplen guilty as charged. (Docket No. 25-1, p. 13.) As
punishment, Coplen was (1) taken out of a step-down program that would eventually
have transferred him to more a comfortable facility; (2) given 30 days of disciplinary
segregation, suspended pending 60 days of clear conduct; and (3) denied phone and
commissary privileges for 60 days. (Docket No. 1, p. 23.)
Petition for Relief
Coplen filed a petition under 28 U.S.C. § 2241, arguing that he was denied due
process in his disciplinary hearing. His petition alleges that he should have been
allowed to see the surveillance video, to have a handwriting analysis conducted, to have
the envelope fingerprinted, to take a polygraph, and to call the other allegedly punished
inmate as a witness. He argues that because he did not have these rights, there is
insufficient evidence of his guilt.
As a remedy, he asks to be restored to the step-down program, with no loss of
time counted toward his eventual transfer to a general-population facility.
“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.’” Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (quoting 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.” Id. (internal quotation marks omitted).
‘‘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). In the Tenth
Circuit, “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. In contrast, a prisoner who challenges the conditions of
his confinement must do so through a civil rights action.” Palma-Salazar, 677 F.3d at
1035 (internal citations omitted). “[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” in a Bivens action. United States v. Garcia,
470 F.3d 1001, 1003 (10th Cir.2006).
Where, as here, an inmate improperly brings a Bivens action as a habeas
petition, the Tenth Circuit holds that the case must be dismissed for lack of jurisdiction.
Palma-Salazar, 677 F.3d at 1038. In theory, Coplen might save this case (as a
jurisdictional matter) by filing an amended complaint under Bivens instead of § 2241.
See Boyd v. Tkach, Case No. 99-cv-02431-ZLW-CBS, 2007 WL 678640 (D. Colo.
2007) (ordering amended pleading to convert from habeas to Bivens action). But that
amendment would be futile. To prove a Bivens claim, Coplen would need to prove that
his confinement at the Florence ADX violates Due Process or the Eighth Amendment—
arguments that this Court repeatedly rejects. See, e.g., McMillan v. Wiley, 813 F. Supp.
2d 1238, 1247–51 (D. Colo. 2011); Georgacarakos v. Wiley, Case No. 07-cv-01712MSK-MEH, 2010 WL 1291833, at *11–13 (D. Colo. Mar. 30, 2010). Accordingly, there
is no benefit to be gained from allowing Coplen to amend his pleadings.
For the foregoing reasons, the Petition for Relief Pursuant to 28 U.S.C. § 2241
(Docket No. 1) is DENIED and this case is DISMISSED without prejudice for lack of
subject-matter jurisdiction; each party is to bear its own costs and fees.
Dated: October 29, 2014
/s/ Michael J. Watanabe
Michael J. Watanabe
United States Magistrate Judge
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