TURNER v. ORTIZ et al

Filing 5

OPINION. Signed by Chief Judge Jerome B. Simandle on 5/11/2017. (rtm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

NORRIS TURNER,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 16-9553 (JBS)

v.
D. ORTIZ, et al.,

OPINION
Respondents.

APPEARANCES:
Norris Turner, Petitioner Pro Se
#13525-052
FCI Fort Dix
P.O. Box 2000
Fort Dix, New Jersey 08640
SIMANDLE, Chief Judge:
INTRODUCTION
Norris Turner, a federal prisoner confined at FCI Fort Dix,
New Jersey, filed this Petition for a Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241, Docket Entry 1. Based on the
affidavit of indigency, the application to proceed in forma
pauperis shall be granted. For the reasons expressed below, the
petition shall be dismissed for lack of jurisdiction.
BACKGROUND
In requesting a writ of habeas corpus, Petitioner asks the
Court for a “review of the safety, health, sanitation,

environment conditions rated capacity space ‘per inmate’, & the
contaminated inmates [sic] drinking water,” at Fort Dix.
Petition at 1 (emphasis omitted). He alleges former Warden
Jordan Hollingsworth and present Warden D. Ortiz “‘are knowingly
continuing to’ ignore & violate the required minimum 60 sq. ft.,
of unencumbered space ‘per inmate’, in violation of P.S.
1060.11.” Id. ¶ 8 (emphasis omitted).
Petitioner alleges the conditions of his confinement at
Fort Dix violate the Eighth Amendment’s prohibition on cruel and
unusual punishment “because of the imminent danger(s), fire
hazard(s), safety concerns(s), sanitation, environment
conditions, & each inmates required, & violated 60 sq. ft., &
the serious mental, emotional, & physical deterioration, inter
alia, that have been unlawfully, & unconstitutional [sic]
implemented by the named Respondents . . . .” Id. ¶ 15. “All of
the housing units, & several other buildings at [Fort Dix],
‘are’ at minimum 50 years old, some with roof leaks, many, if
not all have mold covering the restroom area wall(s), ceilings,
& shower floors (WHICH ARE PAINTED WHEN ANY OUTSIDERS VISIT
[FORT DIX]), shower drains clogged up at times for days . . . of
which said leaks are mostlikely [sic] shower water waste, &
stool, and/or urine waste . . . .” Id. ¶ 19 (emphasis omitted).
He further alleges it “‘is always warm’ during the summer
weather” and the units are not properly air conditioned. Id.
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(emphasis omitted). “These facts are besides each inmates,
including correction officers ‘being exposed to asbestos’ in
said housing units, & inhaling jet fuel fumes, inter alia,
depending on the wind direction.” Id. (emphasis omitted).
Petitioner further alleges that “[o]ne of the greatest
issues suffered by the inmates at [Fort Dix], ‘is the
overcrowding’, & the violated 60 sq. ft., of unencumbered space
‘per inmate, inter alia.’” Id. ¶ 25 (emphasis omitted). He
generally alleges that the conditions of his and other inmates’
confinement violate the Eighth Amendment, and that the wardens
have intentionally ignored the situation as they “‘are only
interested’ in the revenue stream from the overcrowding at [Fort
Dix]” and have gone so far as to falsify the “rated capacity
forms” sent to the Bureau of Prisons regional director. Id. ¶¶
20, 22 (emphasis omitted).
The petition asks the Court to intervene in the housing
situation and to direct Fort Dix to test its water supply. Id. ¶
28. He requests that “until said corrections, health, & safety
issues, inter alia, ‘are completely corrected’, each inmate
shall be entitled to receive three (3) days for every one (1)
day served at [Fort Dix], due to the overcrowding occupancy
housing unit max, health, & safety issues . . . .” Id. (emphasis
omitted).

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Petitioner submitted his petition on December 15, 2016
along with a motion for a temporary restraining order (“TRO”)
pursuant to Federal Rule of Civil Procedure 65, docketed as a
civil complaint in Civil Action No. 16-9493. The Court wrote to
Petitioner asking whether he intended the motion to be filed
with his § 2241 or if he intended it to be filed as a separate
action. Court’s January 5, 2017 Letter, Docket Entry 2.
Petitioner responded to the Court and requested that the TRO be
filed in his habeas matter. Application to Consolidate, Docket
Entry 3.1
III. STANDARD OF REVIEW
Petitioner brings this petition for a writ of habeas corpus
as a pro se litigant. 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).

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In accordance with Petitioner’s request, the TRO motion shall
be filed in this action and Civil Action No. 16-9493 shall be
closed.
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Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that the petitioner is not entitled to relief. 28
U.S.C. § 2254 Rule 4 (made applicable by Rule 1(b)); see also
McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
IV.

DISCUSSION
Petitioner raises several challenges to the conditions of

his confinement, including overcrowding, contaminated water and
air, and generally unsanitary conditions. These are claims that
are more appropriately brought in a civil rights action pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Accordingly, the Court lacks
jurisdiction to consider them under § 2241.
Civil rights actions and habeas petitions “are not
coextensive either in purpose or effect.” Leamer v. Fauver, 288
F.3d 532, 540 (3d Cir. 2002). “[T]he essence of habeas corpus is
an attack by a person in custody upon the legality of that
custody, and that the traditional function of the writ is to
secure release from illegal custody.” Preiser v. Rodriguez, 411
U.S. 475, 484 (1973). The claims raised by Petitioner are not
attacks on the “fact or duration” of his confinement. He does
not claim his original conviction and sentence are
unconstitutional, nor does he assert the Bureau of Prisons has
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miscalculated his sentence or unlawfully deprived him of earned
good time credits. Rather, his allegations are that the
conditions of his confinement are unconstitutional under the
Eighth Amendment. As such, they are not appropriately before the
Court in a habeas petition. See id. at 498-99 (citing cases);
Eiland v. Warden Fort Dix FCI, 634 F. App'x 87, 89 (3d Cir.
2015) (holding claims of inadequate medical care and overcrowded
prison conditions “do not sound in habeas corpus”). The Court
therefore lacks jurisdiction over the habeas corpus petition and
will dismiss it.
The dismissal is without prejudice to Petitioner’s right to
file a Bivens complaint raising his conditions of confinement
claims. “Petitioner is on notice, however, that the filing fee
for a civil action is $400 and that the prerequisites for in
forma pauperis status in an action under Bivens are different
than those in a habeas case.” Eiland v. Hollingsworth, No. 152995, 2015 WL 3604141, at *2 (D.N.J. June 8, 2015), aff'd as
modified Eiland, 634 F. App'x 87. The Court makes no findings as
to whether Petitioner has otherwise complied with the procedural
and statutory prerequisites for filing a civil rights action.
V. CONCLUSION
Based on the foregoing, this Court will consolidate the
matters into this habeas action and dismiss the petition for
lack of jurisdiction.
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An accompanying Order will be entered.

May 11, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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