BERRYMAN v. WARDEN KIRBY
Filing
6
OPINION FILED. Signed by Judge Noel L. Hillman on 6/15/16. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Petitioner,
:
:
v.
:
:
WARDEN KIRBY,
:
:
Respondent.
:
___________________________________:
MICHAEL DAVID BERRYMAN,
Civ. No. 16-2076 (NLH)
OPINION
APPEARANCES:
Michael David Berryman, # 64649-051
FCI Fairton
P.O. Box 420
Fairton, NJ 08320
Petitioner Pro se
HILLMAN, District Judge
Petitioner Michael David Berryman, a prisoner confined at
the Federal Correctional Institution (“FCI”) in Fairton, New
Jersey, filed this writ of habeas corpus under 28 U.S.C. § 2241,
challenging the adequacy of his medical care. (ECF No. 1).
This
matter was previously administratively terminated due to
Petitioner’s failure to satisfy the filing fee requirement. (ECF
No. 3).
On May 2, 2016, Petitioner submitted an application to
reopen and paid the $5 filing fee. (ECF No. 4).
reopened for review by a judicial officer.
The matter was
At this time the
Court will review the Petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, (amended Dec. 1, 2004), made
applicable to § 2241 petitions through Rule 1(b) of the Habeas
Rules. See also 28 U.S.C. § 2243.
For the reasons set forth
below, the Petition will be dismissed.
I.
BACKGROUND
Petitioner states that he was convicted in the United
States District Court for the District of New Mexico for
possession of a stolen firearm in violation of 18 U.S.C. §
924(A)(2).
He is currently serving a 96 month sentence.
In his
Petition, he asserts that he is experiencing extreme pain, and
that the medical staff at FCI Fort Dix is depriving him of
adequate medical care. (Pet. 3, ECF No. 1).
Petitioner states
that he has exhausted his administrative remedies and he
explains his efforts. (Id. at 3-5).
As his sole ground for
relief, Petitioner asserts that prison officials acted with
deliberate indifference to his serious medical needs, in
violation of his Eighth Amendment rights. (Id. at 8-9).
II.
STANDARDS OF REVIEW
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.
2
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, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976);
Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L.
Ed. 2d 652 (1972).
A pro se habeas petition must be construed
liberally. See Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir.
2002).
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
Denny v. Schult, 708 F.3d 140, 148 n.3 (3d Cir. 2013); see also
28 U.S.C. §§ 2243, 2241, 2254.
III. ANALYSIS
As explained to Petitioner in the Court’s April 19, 2016
Opinion, 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, 93
S.Ct. 1827, 36 L.Ed.2d 439 (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, 124 S. Ct. 1303, 158 L.Ed.2d 32 (2004)
and Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137
L.Ed.2d 906 (1997). See also Wilkinson v. Dotson, 544 U.S. 74,
125 S. Ct. 1242, 161 L.Ed.2d 253 (2005).
In addition, where a
prisoner seeks a “quantum change” in the level of custody, for
3
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, 243 (3d Cir. 2005) (finding that a challenge
to regulations limiting pre-release transfer to community
corrections centers was properly brought in habeas, because
community confinement is “‘qualitatively different from
confinement in a traditional prison’” (citation omitted)).
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)
(entertaining challenge to Bureau of Prisons refusal to consider
prisoner's request that state prison be designated place for
service of federal sentence, in order that state and federal
sentences could run concurrently). See also George v. Longley,
463 F. App'x 136 (3d Cir. 2012) (citing Coady, 251 F.3d 480, and
Barden, 921 F.2d 476).
The Court of Appeals has noted that “the precise meaning of
‘execution of the sentence’ is hazy.” Woodall, 432 F.3d at 237.
However, to the extent a prisoner challenges his conditions of
4
confinement, such claims must be raised by way of a civil rights
action.
[W]henever 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). See also
Bonadonna v. United States, 446 F. App'x 407 (3d Cir. 2011)
(holding that District Court properly dismissed § 2241 petition
for lack of jurisdiction where petitioner's allegation of
deficient medical care does not “‘spell speedier release,’” and
thus does not lie at “‘the core of habeas corpus.’” (citations
omitted)).
In this case, Petitioner's Eighth Amendment deliberate
indifference claim is not properly asserted in this § 2241
action, as it would not alter his sentence or undo his
conviction.
Therefore, the Petition must be dismissed for lack
of jurisdiction. See Bonadonna, 446 F. App’x 407; Leamer, 288
F.3d at 542; Johnson v. Zickefoose, No. 11-6754, 2012 WL
6691803, at *3 (D.N.J. Dec. 21, 2012).
Petitioner is free to raise his claims in a civil complaint
filed under Bivens v. Six Unknown Named Agents of Federal Bureau
5
of Narcotics, 403 U.S. 388, 389, 91 S. Ct. 1999, 29 L.Ed.2d 619
(1971) 1 or an action pursuant to the Federal Tort Claims Act
(“FTCA”).
The Court does not express any opinion as to the
legal viability of such claims.
Should Petitioner proceed with a civil complaint,
Petitioner is on notice that he must first exhaust his
administrative remedies. See 42 U.S.C. § 1997e(a); see also
Bonadonna, 446 F. App'x at 409.
Further, Petitioner is on
notice that a civil action under Bivens carries with it a total
filing fee in the amount of $400 or, if a prisoner is granted in
forma pauperis status, a filing fee in the amount of $350.
IV.
CONCLUSION
For the foregoing reasons, the Court will dismiss the
Petition for lack of jurisdiction.
An appropriate Order will be entered.
__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: June 15, 2016
At Camden, New Jersey
1
Bivens actions are the federal counterpart to § 1983 actions
brought against state officials who violate federal
constitutional or statutory rights. See Egervary v. Young, 366
F.3d 238, 246 (3d Cir. 2004), cert. denied, 543 U.S. 1049, 125
S. Ct. 868, 160 L.Ed.2d 769 (2005).
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?