WARREN et al v. ZICKEFOOSE et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 9/13/2011. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD E. WARREN, et al.,
Petitioners,
v.
WARDEN DONNA ZICKEFOOSE,
et al.,
Respondents.
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Civil Action No. 11-4388 (RMB)
OPINION
APPEARANCES:
Petitioners pro se
Richard E. Warren
Sean W. Lee
Metropolitan Detention Center
P.O. Box 329002
Brooklyn, NY 11232
Perry F. Motolo
FCI Fort Dix
P.O. Box 200
Fort Dix, NJ 08640
BUMB, District Judge
Petitioners Richard E. Warren, Sean W. Lee, and Perry F.
Motolo, are federal prisoners who were confined at the Federal
Correctional Institution at Fort Dix, New Jersey, at the time
they filed this action.
Petitioners assert that the Respondents
have violated their constitutional rights by reading their legal
mail, denying them access to the courts, threatening to transfer
them, interfering with their religious observances by
confiscating their Bibles, and (with respect to Petitioner
Warren, only) denying his serious medical needs with respect to
his need for dentures.
I.
A.
ANALYSIS
Jurisdiction
Petitioners have submitted this action as a Petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241.
However,
this Court lacks jurisdiction in habeas to hear Petitioners’
challenges to their conditions of confinement.
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).
(2005).
See also Wilkinson v. Dotson, 544 U.S. 74
In addition, where a prisoner seeks a “quantum change”
in the level of custody, for example, where a prisoner 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
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jurisdiction in challenge to disciplinary hearing that resulting
in sanctions including loss of good-time credits, disciplinary
segregation, and disciplinary transfer).
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 his conditions
of confinement, such claims must be raised by way of a civil
rights action.
2002).
See Leamer v. Fauver, 288 F.3d 532 (3d Cir.
See also Ganim v. Federal Bureau of 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
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regarding sanctioned loss of phone and visitation privileges not
cognizable in habeas).
Here, Petitioners’ challenges are not to the length of their
confinement or the execution of their sentences; instead, they
are garden-variety challenges to conditions of confinement.
Because this Court lacks jurisdiction in habeas to hear
Petitioners’ claims, and because Petitioners have neither prepaid
the filing fee for a civil rights action nor submitted their
individual applications for leave to proceed in forma pauperis,
this Court will dismiss the Petition without prejudice to
Petitioners filing a new and separate civil rights action,
individually or jointly, to raise their conditions-of-confinement
claims.1
This Court cautions Petitioners, however, that any joint
civil rights complaint must meet the filing fee requirements and
the legal requirements for claims by multiple plaintiffs against
multiple defendants, as discussed more fully, below.
B.
The Filing Fee
If Petitioners do not fully prepay the $350 filing fee for a
civil action, they must meet the requirements for proceeding in
forma pauperis.
Civil actions brought in forma pauperis are
governed by 28 U.S.C. § 1915.
The Prison Litigation Reform Act
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Any such civil rights action may, if the rules for joinder
are met, be brought jointly by two or more of Petitioners, or may
be brought by any of the Petitioners individually.
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of 1995, Pub. L. No. 104-135, 110 Stat. 1321 (April 26, 1996)
(the “PLRA”), which amends 28 U.S.C. § 1915, establishes certain
financial requirements for prisoners who are attempting to bring
a civil action or file an appeal in forma pauperis.
Under the PLRA, a prisoner seeking to bring a civil action
in forma pauperis must submit an affidavit, including a statement
of all assets, which states that the prisoner is unable to pay
the fee.
28 U.S.C. § 1915(a)(1).
The prisoner also must submit
a certified copy of his inmate trust fund account statement(s)
for the six-month period immediately preceding the filing of his
complaint.
28 U.S.C. § 1915(a)(2).
The prisoner must obtain
this certified statement from the appropriate official of each
prison at which he was or is confined.
Id.
Even if the prisoner is granted in forma pauperis status,
the prisoner must pay the full amount of the $350 filing fee in
installments.
28 U.S.C. § 1915(b)(1).
In each month that the
amount in the prisoner’s account exceeds $10.00, until the
$350.00 filing fee is paid, the agency having custody of the
prisoner shall assess, deduct from the prisoner’s account, and
forward to the Clerk of the Court an installment payment equal to
20 % of the preceding month’s income credited to the prisoner’s
account.
28 U.S.C. § 1915(b)(2).
Where more than one prisoner seeks to proceed in forma
pauperis, each must separately satisfy the requirements to
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proceed in forma pauperis and each must separately pay the full
$350 filing fee.
See Hagan v. Rogers, 570 F.3d 146 (3d Cir.
2009).
Petitioners may not have known when they submitted the
complaint that he must pay the filing fee, and that even if the
full filing fee, or any part of it, has been paid, the Court must
dismiss the case if it finds that the action: (1) is frivolous or
malicious; (2) fails to state a claim upon which relief may be
granted; or (3) seeks monetary relief against a defendant who is
immune from such relief.
pauperis actions).
28 U.S.C. § 1915(e)(2)(B) (in forma
See also 28 U.S.C. § 1915A (dismissal of
actions in which prisoner seeks redress from a governmental
defendant); 42 U.S.C. § 1997e (dismissal of prisoner actions
brought with respect to prison conditions).
If the Court
dismisses the case for any of these reasons, the PLRA does not
suspend installment payments of the filing fee or permit the
prisoner to get back the filing fee, or any part of it, that has
already been paid.
If the prisoner has, on three or more prior occasions while
incarcerated, brought in federal court an action or appeal that
was dismissed on the grounds that it was frivolous or malicious,
or that it failed to state a claim upon which relief may be
granted, he cannot bring another action in forma pauperis unless
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he is in imminent danger of serious physical injury.
C.
28 U.S.C. § 1915(g).
Joinder of Parties and Claims
In addition, any future civil rights complaint asserted by
Petitioners against multiple defendants must meet the
requirements of the Federal Rules of Civil Procedure regarding
joinder of parties and claims.
Rule 18(a) controls the joinder of claims.
In general, “[a]
party asserting a claim ... may join as independent or
alternative claims, as many claims as it has against an opposing
party.”
Rule 20(a)(2) controls the permissive joinder of defendants
in pro se prisoner actions as well as other civil actions.
Persons ... may be joined in one action as defendants
if:
(A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect
to or arising out of the same transaction, occurrence,
or series of transactions or occurrences; and
(B) any question of law or fact common to all
defendants will arise in the action.
(emphasis added).
See, e.g., Pruden v. SCI Camp Hill, 252
Fed.Appx. 436 (3d Cir. 2007); George v. Smith, 507 F.3d 605 (7th
Cir. 2007).
In actions involving multiple claims and multiple
defendants, Rule 20 operates independently of Rule 18.
Despite the broad language of rule 18(a),
plaintiff may join multiple defendants in a single
action only if plaintiff asserts at least one claim to
relief against each of them that arises out of the same
transaction or occurrence and presents questions of law
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or fact common to all. If the requirements for joinder
of parties have been satisfied, however, Rule 18 may be
invoked independently to permit plaintiff to join as
many other claims as plaintiff has against the multiple
defendants or any combination of them, even though the
additional claims do not involve common questions of
law or fact and arise from unrelated transactions.
7 Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane,
Federal Practice and Procedure, § 1655 (3d ed. 2009).
The requirements prescribed by Rule 20(a) are to be
liberally construed in the interest of convenience and judicial
economy.
Swan v. Ray, 293 F.3d 1252, 1253 (11th Cir. 2002).
However, the policy of liberal application of Rule 20 is not a
license to join unrelated claims and defendants in one lawsuit.
See, e.g., Pruden v. SCI Camp Hill, 252 Fed.Appx. 436 (3d Cir.
2007); George v. Smith, 507 F.3d 605 (7th Cir. 2007); Coughlin v.
Rogers, 130 F.3d 1348 (9th Cir. 1997).
Pursuant to Rule 21, misjoinder of parties is not a ground
for dismissing an action.
Instead, a court faced with a
complaint improperly joining parties “may at any time, on just
terms, add or drop a party.
The court may also sever any claims
against a party.”
D.
Motion to Prevent Transfer
Petitioners have moved this Court for an order preventing
their transfer during the pendency of this action.
Petitioners
assert that the transfer is retaliatory and is intended to impair
their ability to litigate their claims jointly.
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As the Petition must be dismissed for lack of jurisdiction,
the Motion [2] to prevent transfer will be denied as moot.
In any event, the mere temporal connection between
Petitioners’ litigation and their transfers is not sufficient to
establish unlawful retaliation.
Cf. Gans v. Rozum, No. 06-62J,
2007 WL 257127, *6 (W.D. Pa. Aug. 31, 2007) (mere temporal
connection between filing of civil rights complaint and exercise
restriction is “too thin a reed” on which to hang a retaliation
claim), aff’d, 267 Fed.Appx. 178 (3d Cir.) (unpubl.), cert.
denied, 129 S.Ct. 84 (2008); Lopez v. Beard, No. 08-3699, 2009 WL
1705674 (3d Cir. June 18, 2009) (allegation of that denial of
visitation on two occasions was in retaliation for filing
grievances is frivolous).
II.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed with prejudice for lack of jurisdiction.
An
appropriate Order will be entered.
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
Dated: September 13, 2011
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