NIXON v. ZICKEFOOSE et al
Filing
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OPINION. Signed by Chief Judge Jerome B. Simandle on 7/31/2012. (dmr)(n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JIMMY G. NIXON, SR.,
Petitioner,
v.
DONNA ZICKEFOOSE, et al.,
Respondents.
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Civil Action No. 11-2327 (JBS)
OPINION
APPEARANCES:
Petitioner pro se
Jimmy G. Nixon, Sr.
Federal Correctional Institution at Fort Dix
Fort Dix, New Jersey 08640
SIMANDLE, Chief Judge
Petitioner Jimmy G. Nixon, Sr., a prisoner currently
confined at the Federal Correctional Institution at Fort Dix, New
Jersey, has submitted a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241.1
fee.
Petitioner paid the $5.00 filing
The respondents are Warden Donna Zickefoose, prison guard
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Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
T. Riunk, counselor Robert Wiget, and counselor Walter T.
Biederback.
Because it appears from a review of the Petition that
Petitioner is not entitled to relief, the Petition will be
dismissed.
See 28 U.S.C. § 2243.
I.
BACKGROUND
Petitioner asserts that prison guard T. Rink wrote a false
incident report accusing Petitioner of refusing to obey her order
to leave the law library.
Following a disciplinary hearing,
Petitioner was found to have committed the prohibited act as
charged.
He was sanctioned to 30 days loss of commissary
privileges.
appeals.
Petitioner unsuccessfully pursued his administrative
This Petition followed.
Here, Petitioner seeks an order directing the Warden to
vacate the sanction imposed as a result of the disciplinary
proceeding, to expunge the incident report, and to transfer
Petitioner to another federal prison.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.
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A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
See Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).
Nevertheless, a federal district court can
dismiss a habeas corpus petition if it appears from the face of
the petition that the petitioner is not entitled to relief.
See
Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
See also 28 U.S.C. §§ 2243, 2255.
III.
ANALYSIS
A habeas corpus petition is the proper mechanism for a
prisoner to challenge the “fact or duration” of his confinement,
Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including
challenges to prison disciplinary proceedings that affect the
length of confinement, such as deprivation of good time credits,
Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok,
520 U.S. 641 (1997).
1242 (2005).
See also Wilkinson v. Dotson, 125 S.Ct.
In addition, where a prisoner seeks a “quantum
change” in the level of custody, for example, where a prisoner
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claims to be entitled to probation or bond or parole, habeas is
the appropriate form of action.
See, e.g., Graham v. Broglin,
922 F.2d 379 (7th Cir. 1991) and cases cited therein.
See also
Woodall v. Federal Bureau of Prisons, 432 F.3d 235, 237 (3d Cir.
2005) (challenge to regulations limiting pre-release transfer to
community corrections centers properly brought in habeas); Macia
v. Williamson, 2007 WL 748663 (3d Cir. 2007) (finding habeas
jurisdiction in challenge to disciplinary hearing that resulting
in sanctions including loss of good-time credits).
The Court of Appeals for the Third Circuit has held that
habeas corpus is an appropriate mechanism, also, for a federal
prisoner to challenge the execution of his sentence.
See Coady
v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (noting that
federal prisoners may challenge the denial of parole under
§ 2241); Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990)
(challenge to BOP refusal to consider prisoner’s request that
state prison be designated place for service of federal
sentence).
The Court of Appeals has noted, however, that “the precise
meaning of ‘execution of the sentence’ is hazy.”
F.3d at 237.
Woodall, 432
To the extent a prisoner challenges sanctions
affecting his conditions of confinement, such claims must be
raised by way of a civil rights action.
288 F.3d 532 (3d Cir. 2002).
See Leamer v. Fauver,
See also Ganim v. Federal Bureau of
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Prisons, 235 Fed.Appx. 882, 2007 WL 1539942 (3d Cir. 2007)
(challenge to garden-variety transfer not cognizable in habeas);
Castillo v. FBOP FCI Fort Dix, 221 Fed.Appx. 172, 2007 WL 1031279
(3d Cir. 2007) (habeas is proper vehicle to challenge
disciplinary proceeding resulting in loss of good-time credits,
but claims regarding sanctioned loss of phone and visitation
privileges not cognizable in habeas).
Here, the only sanction imposed, loss of commissary
privileges, is not the type of sanction cognizable in habeas.
Instead, any challenge to such a disciplinary proceeding must be
pursued in a civil rights action or civil action for declaratory
and/or injunctive relief.
Accordingly, this Court lacks
jurisdiction to hear the claims in this habeas Petition.
Because Petitioner has not prepaid the $350.00 filing fee
for a civil action, and he appears ineligible to proceed in forma
pauperis in such an action, this Court will not construe this
matter as a civil rights complaint.2
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Title 28 U.S.C. § 1915(g), the “three strikes rule,”
limits the ability of prisoners to proceed in forma pauperis if
they have had at least three civil actions dismissed as frivolous
or for failure to state a claim.
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
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Instead, this Petition will be dismissed without prejudice.
Petitioner may file a separate civil complaint, prepaying the
$350.00 filing fee for a civil action, if he wishes to pursue
these claims.
This Court expresses no opinion as to the merits
of Petitioner’s claims.
IV.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed without prejudice for lack of jurisdiction.
An
appropriate order follows.
s/ Jerome B. Simandle
Jerome B. Simandle
Chief Judge
United States District Court
Dated: July 31, 2012
under imminent danger of serious physical injury.
Petitioner has had numerous civil actions dismissed as frivolous
or for failure to state a claim. See Nixon v. Johnson, No. 0213828-B (11th Cir. Oct. 1, 2002); Nixon v. Connor, Civil No. 980295 (E.D. Tex. April 15, 1998); Nixon v. Hawk-Sawyer, Civil No.
98-0295 (5th Cir. April 14, 2000); Nixon v. Hawk-Sawyer, Civil
No. 98-2212 (W.D. La. Aug. 19, 1999); Nixon v. Cesterline, Civil
No. 97-1461 (W.D. La. July 9, 1998). As the allegations of the
Petition do not suggest that Petitioner is in imminent danger of
serious physical injury, he is not eligible to proceed in forma
pauperis with respect to the claims asserted here.
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