Kinard v. English

Filing 7

ORDER ENTERED: Plaintiff is granted until August 31, 2018, to advise the Court whether he intends to proceed in this matter under Bivens. If so, he must file his complaint on court-approved forms. See D. Kan. Rule 9.1(a). He also must either pay the filing fee in full or file a motion to proceed in forma pauperis. If Plaintiff fails to file a response, this matter will be dismissed. Signed by Senior U.S. District Judge Sam A. Crow on 08/14/18. Mailed to pro se party Daniel W. Kinard by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DANIEL W. KINARD,
Plaintiff,
v.

CASE NO. 18-3082-SAC

NICOLE ENGLISH, Warden,
USP-Leavenworth,
Defendant.
ORDER
Petitioner filed this matter as a petition for writ of habeas corpus under 28 U.S.C. § 2241.
At the time of filing, Plaintiff was in federal custody at USP-Leavenworth in Leavenworth,
Kansas. Plaintiff challenges the warden’s compliance with Federal Bureau of Prison’s (“BOP”)
policies in failing to remove three points from his custody classification for “History of Escape.”
To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S. C. § 2241(c)(3). A
petition under 28 U.S.C. § 2241 provides the remedy to challenge the execution of a sentence.
Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). Thus, a petitioner may challenge
the fact or duration of his confinement and may seek release or a shorter period of confinement.
See Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012). However, claims
challenging a prisoner’s conditions of confinement do not arise under Section 2241.

See

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811–12 (10th Cir. 1997) (contrasting
suits under Section 2241 and conditions of confinement claims).
In United States v. Garcia, the appellants did not seek release from BOP custody, but
rather both sought a court order directing the BOP to transfer them to detention facilities located
closer to their families. United States v. Garcia, 470 F.3d 1001, 1002 (10th Cir. 2006). The
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Tenth Circuit held that where appellants were in lawful custody of the BOP and sought “a
change in the place of confinement rather than a shortened period of custody[,]” their challenges
must be brought in a Bivens action. Id. at 1003; see also Palma-Salazar, 677 F.3d at 1035
(noting that Palma-Salazar did not challenge the BOP’s underlying authority to hold him in
custody, but rather he challenged his placement within the federal prison system); see also
Bruscino v. True, 708 F. App’x 930, 935 (10th Cir. 2017) (unpublished) (finding claim that
transfer was in retaliation for role in class action lawsuit was not properly brought in a § 2241
habeas proceeding because it challenges the conditions of confinement rather than the duration
of custody).
In the present case, Plaintiff does not complain of the loss of good conduct time or of any
negative impact on the duration of his sentence. Rather, he claims that his custody classification
was miscalculated. Accordingly, he may not challenge his classification in a habeas corpus
action; rather, he must proceed, if at all, in a civil rights action filed pursuant to Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Requena v.
Roberts, 552 F. App’x. 853, 856 (10th Cir. April 7, 2014) (unpublished) (remanding to district
court to determine whether petitioner had adequately alleged civil rights claims).
On April 4, 2018, the Court issued a Notice of Deficiency (Doc. 4) to Plaintiff, noting
that Plaintiff’s complaint was not on court-approved forms, and noting that Plaintiff has failed to
either pay the filing fee or to file a motion to proceed without prepayment of fees. The Notice of
Deficiency gave Plaintiff 30 days to correct the deficiencies and stated that failure to comply
within the prescribed time may result in dismissal of this action without further notice for failure
to comply with the Court’s order. Plaintiff has failed to file his complaint on the proper civil
rights forms and has failed to either pay the proper fee or to file a motion to proceed in forma

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pauperis. Instead, Plaintiff sent a letter to the Court (Doc. 6) asking the Court to interpret his
action as a habeas petition under § 2241, rather than a Bivens action. However, as set forth
above, it is the nature of Plaintiff’s claims, not his designation, that controls.
The filing fee for a Bivens action is $400.00.1 Because Plaintiff has not filed a motion for
leave to proceed in forma pauperis, the Court cannot determine whether Plaintiff would qualify
for in forma pauperis status in a Bivens action, and what, if any, initial partial filing fee he might
owe if such status is granted. Even if Plaintiff is entitled to proceed in forma pauperis, he would
remain obligated to pay the full $350.00 filing fee, but would be allowed to do so through
payments automatically deducted from his institutional account. The Court offers no opinion on
the merits of such an action.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff is granted until
August 31, 2018, to advise the Court whether he intends to proceed in this matter under Bivens.
If so, he must file his complaint on court-approved forms. See D. Kan. Rule 9.1(a). He also
must either pay the filing fee in full or file a motion to proceed in forma pauperis. If Plaintiff
fails to file a response, this matter will be dismissed.
The clerk is directed to send Plaintiff forms for filing a Bivens action under 28 U.S.C.
§ 1331 and forms for filing a motion to proceed in forma pauperis.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 14th day of August, 2018.
S/ Sam A. Crow
SAM A. CROW
SENIOR U. S. DISTRICT JUDGE

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If a person is not granted in forma pauperis status under § 1915, 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.
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