Lipscomb v. Grondolsky et al

Filing 4

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER: The petition for a writ of habeas corpus is DENIED; andThis action is DISMISSED(PSSA, 1)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
ANTHONY LIPSCOMB,
)
)
Petitioner,
)
)
Civil Action No.
v.
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16-12069-FDS
)
THE BUREAU OF PRISONS, et al.,
)
)
Respondents.
)
)
MEMORANDUM AND ORDER
SAYLOR, J.
On October 6, 2018, petitioner Anthony Lipscomb, a prisoner in custody at FMC Devens
and a frequent filer in the federal courts, submitted a self-prepared petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. He seeks an order from this Court to the Federal Bureau of
Prisons and to Jeffrey Grondolsky, the Warden of FMC Devens, to (1) authorize repairs of the
prison water system; (2) disclose the contaminants in the water; and (3) distribute fresh bottled
water that has been filtered and that has nutritional facts on the labels.
I.

Background
Lipscomb alleges that while housed in the Special Housing Unit (“SHU”) at FMC

Devens from October to December 2015, he noticed brown water frequently coming out from
the faucet. He filed a grievance, to no avail. Upon his release from the SHU in January 2016, he
continued to experience the same brown water flowing from the cell faucet, toilet, and shower
stalls. He re-filed his grievance, seeking periodic information about the contaminants in the
water, and seeking fresh bottled water until the problem had been addressed. Warden
Grondolsky advised him that the discoloration would discontinue once the municipal water
company completed its flushing of the prison’s water lines.
Attached to the petition was Warden Grondolsky’s “Response for Administrative
Remedy #862498-F1” (Docket No. 1-1 at 5), dated May 25, 2016, concerning the investigation

of Lipscomb’s request. Warden Grondolsky acknowledged that there was a problem with the
water system due to water pressure and leaks, which led to sediment in the water, causing it to
appear bronze. He advised that the municipal water company had been contacted to address the
spikes in water pressure. The water company planned to start flushing the prison’s water lines in
May 2016, and that process would remove any sediment still present. The water company had
assured FMC Devens that the water is safe for use and consumption. Id. In light of that
information, Lipscomb’s requests for relief was denied.
Lipscomb did not pay the filing fee for this action, nor did he seek a waiver of the fees.
II.

Discussion
A.

Review of the Habeas Petition

Although this petition was brought pursuant to Section 2241 and not Section 2254, the
rules governing Section 2254 cases may be applied at the discretion of the district court to other
types of habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Proceedings;
Boutwell v. Keating, 399 F.3d 1203, 1211 n.2 (10th Cir. 2005) (district court acted within its
discretion by applying Rule 4(b) of the Rules Governing Habeas Corpus Cases Under Section
2254 to § 2241 petition); Perez v. Hemingway, 157 F. Supp. 2d 790, 795 (E.D. Mich. 2001).
Under Rule 4 of the Rules Governing Section 2254 Proceedings, the Court is required to
examine a petition, and if it “plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court,” the Court “must dismiss the petition and
direct the clerk to notify the petitioner.” Rule 4; see McFarland v. Scott, 512 U.S. 849, 856
(1994) (habeas petition may be dismissed if it appears to be legally insufficient on its face);
Mahoney v. Vondergritt, 938 F.2d 1490, 1494 (1st Cir. 1991) (upholding Rule 4 summary
dismissal of § 2254 petition). A petition for a writ of habeas corpus may also be summarily
dismissed if it fails to set forth facts that give rise to a cause of action under federal law. Marmol
v. Dubois, 855 F. Supp. 444, 446 (D. Mass. 1994); see Eady v. Director, Charleston County
Detention Center, 2011 WL 3704225, *3 (D.S.C. 2011) citing Allen v. Perini, 424 F.2d 134, 141
(6th Cir. 1970) (noting that district courts have a duty to screen habeas petitions and eliminate
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burden on respondents caused by ordering an unnecessary answer or return).
B.

Failure to State Cognizable Habeas Claims

The habeas petition here must be denied because the condition of the water supply to
FMC Devens is not the proper subject of a petition for a writ of habeas corpus. “[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.” Preiser v. Rodriguez,
411 U.S. 475, 484 (1973). “Challenges to the validity of any confinement or to particulars
affecting its duration are the province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a [non-habeas action].” Muhammad v. Close,
540 U.S. 749, 750 (2004); Allen v. McCurry, 449 U.S. 90, 104 (1980) (“[T]he purpose of [the
writ of habeas corpus] is not to redress civil injury, but to release the applicant from unlawful
physical confinement.”) accord Croooker v. Grondolsky, 2012 WL 5416422 (D. Mass. 2012)
(dismissing § 2241 habeas petition by three-strikes prisoner alleging inadequate medical care),
aff’d, No. 12-2391 (1st Cir. 2013); Kane v. Winn, 319 F. Supp. 2d 162, 213 (D. Mass. 2004)
(challenge to adequacy of prison medical care could not proceed as a § 2241 petition but was the
proper subject of a Bivens civil rights lawsuit).
Here, Lipscomb does not suggest that the contamination and discoloration of the prison
water affects the duration of his confinement in any way. In the absence of any allegation that
the success on his petition would “necessarily spell speedier release,” Lipscomb’s claim falls
outside the scope of this Court’s habeas jurisdiction. Wilkinson v. Dotson, 544 U.S. 74, 82
(2005).1
Accordingly, Lipscomb’s petition for writ of habeas corpus will be denied and this action

1
The characterization of an action as a habeas petition as opposed to a standard civil action is important because
there are substantial differences between the two. Among other things, the filing fee for habeas petitions is $5; the filing
fee for civil actions is $350 with a $50 administrative fee. In addition, the court has authority to appoint counsel for a
petitioner, with payment of fees through the Criminal Justice Act. That authority does not exist in non-habeas civil
actions. Further, there is no right to a jury trial or monetary relief in habeas actions; whereas claims for a jury trial or
monetary relief are permitted in certain civil actions. Finally, certain provisions of the Prison Litigation Reform Act do
not apply in habeas cases. See, e.g., 28 U.S.C. § 1915(g) (the three-strikes rule).

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will be dismissed.2
III.

Conclusion
Based on the foregoing, it is hereby ordered as follows:
1.

The petition for a writ of habeas corpus is DENIED; and

2.

This action is DISMISSED;

So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: November 3, 2016

2

In view of the dismissal, the Court need not address the failure of Lipscomb to pay the filing fee for this action
or seek a waiver.

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