Campbell v. Maye et al

Filing 2

ORDER ENTERED: Petitioner is granted twenty (20) days to EITHER pay the $5.00 district court filing fee OR submit a form motion for seeking leave to proceed in forma pauperis. Petitioner is granted twenty (20) days to supplement the petition t o sufficiently demonstrate his exhaustion of administrative remedies and to show cause why the petition seeking habeas corpus relief under 28 U.S.C. 2241 should not be dismissed as moot. Signed by Senior District Judge Richard D. Rogers on 6/28/2013. (Mailed to pro se party Brian A. Campbell by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN A. CAMPBELL,
Petitioner,
v.

CASE NO. 13-3095-RDR

CLAUDE MAYE, et al.,
Respondents.

O R D E R
This matter comes before the court on a petition seeking a writ
of habeas corpus under 28 U.S.C. § 2241, filed pro se by a prisoner
incarcerated in the United States Penitentiary in Leavenworth,
Kansas.

Having reviewed the record, the court enters the following

preliminary directives.
Filing Fee
Petitioner neither prepaid the $5.00 district court filing fee
required under 28 U.S.C. § 1914 for a habeas corpus action, nor filed
a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915.
To proceed in this matter, petitioner must satisfy one of these
statutory filing fee provisions.

The failure to do so in a timely

manner may result in the petition being dismissed without prejudice
and without further prior notice.
Exhaustion of Remedies
It

is

well-settled

that

federal

prisoners

must

exhaust

administrative remedies before commencing a petition pursuant to §
2241.

Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986).

This

exhaustion requirement is satisfied by “using all steps that the

agency holds out.”

Woodford v. Ngo, 548 U.S. 81 (2006)(quotation

omitted).
In the present case, petitioner’s bare statement that he fully
exhausted administrative remedies is insufficient to satisfy his
burden of demonstrating his full exhaustion of remedies on the issue
raised in his petition.

Clonce v. Presley, 640 F.2d 271, 273 (10th

Cir. 1981)(“The burden of showing exhaustion rests on the petitioner
in federal habeas corpus actions.”)(citation omitted).
Petitioner is thereby directed to supplement the petition to
demonstrate his exhaustion of administrative remedies.

The failure

to do so in a timely manner may result in the petition being dismissed
without prejudice and without further prior notice.
Habeas Relief Appears Moot
The United States district courts are authorized to grant a writ
of habeas corpus to a prisoner "in custody in violation of the
Constitution or laws or treaties of the United States."
§ 2241(c)(3).

28 U.S.C.

This statute permits a prisoner to attack the execution

of his sentence as it affects the fact or duration his confinement.
See Overturf v. Massie, 385 F.3d 1276, 1278 (10th Cir.2004).
Here, petitioner’s contentions relate to his unsuccessful
attempts to secure consideration for placement in a Residential
Reentry Center (RRC) as provided by federal statutes and Bureau of
Prisons (BOP) regulations.

Petitioner acknowledges, however, that

his release date is imminent and that his placement in an RRC facility
is now foreclosed.

Thus to the extent petitioner is attempting to

assert any appropriate claim under § 2241 regarding his RRC placement,
any such claim appears to be moot.

Absent a showing by petitioner

to the contrary, the petition is subject to being dismissed.

The

failure to file a timely response may result in the petition being
dismissed as moot without further prior notice.
Non-Habeas Claims
Petitioner also contends that his Unit Team Manager acted
unprofessionally and in a retaliatory manner by placing false
information in petitioner’s prison record, that BOP staff failed to
properly

handle

his

administrative

grievances,

defendants failed to comply with BOP regulations.

and

that

all

These allegations

concern the conditions of petitioner’s confinement rather than the
execution of petitioner’s federal sentence, thus habeas corpus is not
appropriate for such claims.

See McIntosh v. United States Parole

Comm'n, 115 F.3d 809, 812 (10th Cir.1997)(where prisoner attacks the
conditions of his confinement, jurisdiction is not proper under 28
U.S.C. § 2241).

Petitioner can instead pursue relief to the extent

allowed by law in one or more separate non-habeas civil action.

1

Id.

IT IS THEREFORE ORDERED that petitioner is granted twenty (20)
days to EITHER pay the $5.00 district court filing fee, OR submit a
1

See e.g. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971)(Supreme Court recognized a private right of action in favor of
victims of constitutional violations committed by federal agents in the performance
of their official duties); Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231–
32, 1236 (10th Cir.2005)(28 U.S.C. § 1331 is a sufficient statutory basis for equity
jurisdiction over federal prisoner's constitutional claims seeking injunctive
relief against federal actors concerning conditions of confinement); United States
v. Muniz, 374 U.S. 150 (1963)(a person can sue under the Federal Tort Claims Act
Afor personal injuries sustained during confinement in a federal prison, by reason
of the negligence of a government employee@); and Sellers v. Bureau of Prisons, 959
F.3d 307 (D.C.Cir.1992)(prisoner alleging adverse determinations resulting from
erroneous information in BOP records with no opportunity to respond can proceed under
the Privacy Act, 5 U.S.C. § 552a).
Petitioner is advised that effective May 1, 2013, the fee to file a non-habeas
civil action includes the $350.00 fee required by 28 U.S.C. § 1914(a) and a $50.00
general administrative fee pursuant to § 1914(b) and the District Court
Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United
States.
This $50.00 general administrative fee does not apply to a prisoner
proceeding in forma pauperis in a non-habeas civil action, who is obligated to pay
the full $350.00 district court filing fee, 28 U.S.C. § 1915(b)(1), and may do so
over time by payment of an initial partial filing fee assessed by the court under
28 U.S.C. § 1915(b)(1) and by automatic payments thereafter from his inmate trust
fund account as authorized by 28 U.S.C. § 1915(b)(2).

form motion for seeking leave to proceed in forma pauperis.
IT IS FURTHER ORDERED that petitioner is granted twenty (20) days
to supplement the petition to sufficiently demonstrate his exhaustion
of administrative remedies, and to show cause why the petition seeking
habeas corpus relief under 28 U.S.C. § 2241 should not be dismissed
as moot
The clerk’s office is to provide petitioner with a form motion
for filing under 28 U.S.C. § 1915.
DATED:

This 28th day of June 2013, at Topeka, Kansas.

s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge