WEST v. NORWOOD et al

Filing 7

OPINION. Signed by Judge Robert B. Kugler on 7/9/2012. (TH, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
________________________________
:
PATRICK WEST,
:
:
Petitioner,
:
:
v.
:
:
J.L. NORWOOD, et al.,
:
:
Respondents.
:
________________________________:

Civil Action No. 11-7170 (RBK)
O P I N I O N

APPEARANCES:
Patrick West, Pro Se
51719-037
Federal Correctional Institution
P.O. Box 2000
Fort Dix, NJ 08640

KUGLER, District Judge
Petitioner Patrick West, 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

Petitioner also filed a motion, which remains

pending (docket entry 3).

For the following reasons, the

petition will be dismissed.
BACKGROUND
Petitioner is currently serving a 51-month sentence for
conspiracy and possession with intent to distribute heroin,
imposed by the United States District Court, District of
Maryland, on March 25, 2011.

(Petition, ¶¶ 2-5).

Petitioner argues that he was improperly designated and
classified by Fort Dix staff and administrators.

(Pet., ¶ 10a).

He also alleges that staff “has refused to properly treat and
care for Petitioner in spite of the numerous requests for proper
treatment.”

He alleges that he suffers from post-traumatic

stress disorder, is bi-polar, and has high blood pressure.
Petitioner does not specify the treatment he is receiving or why
he alleges it is inadequate.

(Pet., ¶ 10b).

Petitioner also

argues that he is being retaliated against “for being persistent

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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 ....

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in Petitioner’s requests and demands to have his issues relating
to designation and placement and medical needs properly addressed
and resolved.”

(Pet., ¶ 10c).

Finally, Petitioner argues that

he has been denied participation in the Residential Drug Abuse
Program (“RDAP”).
On April 3, 2012, Petitioner filed a “Motion to Show Cause”
(docket entry 3).
petition.

The Motion asks this Court to rule on his

He has also sent a letter to the Court concerning his

RDAP issues.

(Docket entry 4).

Petitioner states in his letter

to the Court that he was transferred to FCI Fort Dix to
participate in RDAP.

Although he was recommended for the RDAP,

he “withdrew from because the program wasn’t allowing me to earn
the full benefits allowed to individuals according to BOP
policy.”

Petitioner asserts that he “withdrew from the RDAP

program and I am no longer eligible to move to the RDPA Building;
plus my name has been removed from the waiting list.

According

to BOP policy, I should be sent back to the facility in which I
came from,” or at least, he argues, a minimum security facility
(docket entry 4).

Thus, Petitioner appears to challenge the fact

that since his withdrawal from RDAP, he hasn’t been transferred
back to a minimum security facility.

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DISCUSSION
A.

Jurisdiction
A habeas corpus petition is the proper mechanism for a

federal 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).
544 U.S. 74 (2005).

See also Wilkinson v. Dotson,

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 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.

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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

Distinguishing Woodall, the Court of Appeals has

held that a challenge to a garden-variety transfer is not
cognizable in habeas.

See Ganim v. Federal Bureau of Prisons,

235 Fed. Appx. 882, 2007 WL 1539942 (3d Cir. 2007).
Likewise, challenges to conditions of confinement are not
cognizable in a habeas action.

The Court of Appeals for the

Third Circuit has explained that:
whenever the challenge ultimately attacks the "core of
habeas"– the validity of the continued conviction or
the fact or length of the sentence– a challenge,
however denominated and regardless of the relief
sought, must be brought by way of a habeas corpus
petition. Conversely, when the challenge is to a
condition of confinement such that a finding in
plaintiff’s favor would not alter his sentence or undo
his conviction, an action under § 1983 is appropriate.
Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).
In this case, Petitioner’s claims requesting a transfer to a
minimum security facility, and his claims concerning medical care
and retaliation are not properly asserted in this § 2241 action,

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as they would not alter his sentence or undo his conviction.
Therefore, the petition must be dismissed for lack of
jurisdiction.

Petitioner is free to raise his claims in a civil

complaint filed under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388, 389 (1971), or in an
action under the Declaratory Judgments Act, 28 U.S.C. §§ 22012202.
B.

Petitioner’s Claims
Although this Court is dismissing this action for lack of

jurisdiction, Petitioner should note the following.
With respect to convicted and sentenced prisoners, “[a]s
long as the conditions or degree of confinement to which the
prisoner is subjected is within the sentence imposed upon him and
is not otherwise violative of the Constitution, the Due Process
Clause does not in itself subject an inmate's treatment by prison
authorities to judicial oversight.”

Montanye v. Haymes, 427 U.S.

236, 242 (1976), quoted in Hewitt v. Helms, 459 U.S. 460, 468
(1983), and Sandin v. Conner, 515 U.S. 472, 480 (1995).
Governments may confer on prisoners liberty interests that
are protected by the Due Process Clause. “But these interests
will be generally limited to freedom from restraint which, while
not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own
force, nonetheless imposes atypical and significant hardship on

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the inmate in relation to the ordinary incidents of prison life.”
Sandin, 515 U.S. at 484 (finding that disciplinary segregation
conditions which effectively mirrored those of administrative
segregation and protective custody were not “atypical and
significant hardships” in which a state conceivably might create
liberty interest).

See also Asquith v. Department of

Corrections, 186 F.3d 407, 411–12 (3d Cir. 1999) (return to
prison from halfway house did not impose “atypical and
significant hardship” on prisoner and, thus, did not deprive him
of protected liberty interest).
It is well-established that a prisoner possesses no liberty
interest arising from the Due Process Clause in a particular
custody level or place of confinement.

See, e.g., Olim v.

Wakinekona, 461 U.S. 238, 245–46 (1983); Hewitt, 459 U.S. at
466–67; Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Meachum v.
Fano, 427 U.S. 215, 224–25 (1976); Montanye, 427 U.S. at 242.
Therefore, Petitioner’s request to be transferred appears to be
meritless.
Petitioner’s vague allegations that he is being denied
“proper” medical treatment while housed at FCI Fort Dix.

(Pet.,

¶ 10b), and that he is being retaliated against, also are not
sufficient, as pled in this petition, to warrant relief.
To sustain a medical care claim, Petitioner must allege, in
a civil complaint, that (1) he had a serious medical need; and

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(2) the behavior on the part of prison officials that constituted
deliberate indifference to that need.

See Estelle v. Gamble, 429

U.S. 97, 106 (1976).
To prevail on a retaliation claim in a civil complaint,
Petitioner must demonstrate that (1) he engaged in
constitutionally-protected activity; (2) he suffered, at the
hands of a state actor, adverse action “sufficient to deter a
person of ordinary firmness from exercising his [constitutional]
rights;” and (3) the protected activity was a substantial or
motivating factor in the state actor's decision to take adverse
action.

See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)

(quoting Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
CONCLUSION
For the foregoing reasons, Petitioner’s petition for a writ
of habeas corpus, filed pursuant to 28 U.S.C. § 2241, is hereby
dismissed, for lack of jurisdiction.

Petitioner’s pending motion

shall be dismissed as moot.
An appropriate Order accompanies this Opinion.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
Dated: July 9, 2012

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