Brenner v. Executive Director of the CDOC et al

Filing 6

ORDER directing Applicant to respond by Magistrate Judge Gordon P. Gallagher on 1/7/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02611-GPG
PATRICK L. BRENNER,
Applicant,
v.
EXECUTIVE DIRECTOR OF THE CDOC, and
WARDEN OF COLORADO TERRITORIAL CORRECTIONAL FACILITY,
Respondents.

ORDER

Applicant Patrick L. Brenner is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional Facility in Cañon
City, Colorado. Applicant, acting pro se, initiated this action by filing an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2241 challenging the loss of property and
seeking money damages.
On December 2, 2015, the Court instructed Applicant that his attempt to file this
action pursuant to 28 U.S.C. ' 2241 is improper and that challenges to conditions of
confinement are properly pursued in a civil rights action. Applicant was directed to
submit his claims and request to proceed pursuant to 28 U.S.C. § 1915 on proper
Court-approved forms. On December 21, 2015, rather than comply with the December 2
Order, Applicant filed a Motion to Reply to Court=s Order of 12/2/15, ECF No. 5.
In the Motion, Applicant first states that he is Anot challenges [sic] of confinement.
In stead [sic], he=s asking for release, instead he=s asking this Court for a review of the
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defendant=s Administrative actions. See ' 46.02 Habeas Corpus.@ ECF No. 5 at 1.
Applicant then asserts that petitions for habeas corpus may be used to seek a review of
administrative actions, and a C.R.C.P.R. 106(a)(2) appeal, which he used to challenge
the deprivation of his personal property by defendants in state court, is a habeas corpus
action. Id.
In a federal district court, A[t]he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.@ See Preiser v. Rodriguez, 411 U.S. 475, 484
(1973). Applicant relies only on state law for the support of his argument that he is able
to challenge the deprivation of his personal property through habeas corpus proceedings.
Therefore, Applicant has not provided proper justification for this Court to consider his
property claim under ' 2241.
Furthermore, A[i]t is well-settled law that prisoners who wish to challenge only the
conditions of their confinement, as opposed to its fact or duration, must do so through civil
rights lawsuits filed pursuant to 42 U.S.C. ' 1983 . . . .@ See Standifer v. Ledezma, 653
F.3d 1276, 1280 (10th Cir. 2011). The claims Applicant has asserted clearly involve the
conditions of his confinement and not the execution of his sentence. Also, Applicant=s
assertion in the Motion that he now would like to seek release from prison, rather than
compensation for the loss of his property, as he requested in the Application, does not
change the nature of this action from a prisoner complaint to a habeas corpus action. It
would be very rare, if at all possible, for Applicant to have a remedy in any civil action for
release from prison based on the loss of property.

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Finally, in the Motion, Applicant asserts he does not desire to file a complaint about
prison conditions but only wants to challenge Respondents’ violations of administrative
regulations. Because Applicant’s claims pertain to the violations of the administrative
regulations that address the handling, or mishandling, of his property, he is challenging
the conditions of his confinement and not the execution of his sentence. Nonetheless,
the Court will allow Applicant an extension of time to review this Order and to decide how
he would like to proceed in this action.
The Court also notes that Applicant is subject to filing restrictions pursuant to 28
U.S.C. ' 1915 with respect to filing civil complaints. In relevant part, ' 1915 provides:
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on
the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.
28 U.S.C. ' 1915(g). Applicant, on three or more prior occasions, has brought an action
that was dismissed on the grounds that it was frivolous or failed to state a claim. Brenner
v. Hickenlooper, et al., No. 12-cv-02724-LTB (D. Colo. Nov. 26, 2012) (dismissed as
legally frivolous and for failure to state claim pursuant to Heck v. Humphrey, 512 U.S. 477
(1994)), aff=d, No. 12-1497 (10th Cir. Feb. 11, 2013) (Tenth Circuit found the district
court=s dismissal counted as one strike and then assessed a second strike pursuant to 28
U.S.C. ' 1915(e)(2)(B) because the appeal like the complaint failed to state a claim);
Brenner v. Erkenbrack, et al., No. 07-cv-00419-ZLW (D. Colo. Apr. 19, 2007) (dismissed
for failure to state a claim based on Heck; counts as one strike).

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The Court=s ' 1915(g) determination in each of the above-noted cases complies
with Hafed v. Fed. Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir. 2011); see also,
Smith v. Veterans Admin., 636 F.3d 1306, 1312-13 (10th Cir. 2011) (Adismissal of a civil
rights suit for damages based on prematurity under Heck is for failure to state a claim,@
and the Adismissal as premature under Heck . . . is a strike under ' 1915(g).@). Plaintiff is
warned that he may not circumvent filing restrictions under ' 1915(g) by filing conditions
of confinement claims in a '28 U.S.C. ' 2241 action. Accordingly, it is
ORDERED that within thirty days Applicant respond and inform the Court how he
would like to proceed in this action. It is
FURTHER ORDERED that if Applicant does not respond within thirty days and
state to the Court how he would like to proceed with this action, the Court will proceed with
addressing the 28 U.S.C. § 2241 action on the merits.
Dated January 7, 2016, at Denver, Colorado.
BY THE COURT:

Gordon P. Gallagher
United States Magistrate Judge

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