RILEY v. ORTIZ
OPINION. Signed by Judge Renee Marie Bumb on 9/22/2017. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WARDEN DAVID ORTIZ,
Civ. Action No. 17-3233 (RMB)
BUMB, District Judge
Fort Dix, in Fort Dix, New Jersey, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2241, on May 8, 2017, seeking a
court order requiring the Warden to reinstate an individual to
violation in connection with his prison disciplinary proceeding.
pauperis status under 28 U.S.C. § 1915. (Order, ECF No. 2.)
Petitioner paid the filing fee, and the case is now reopened.
Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, applicable to 28 U.S.C. § 2241
through Rule 1, scope of the rules, provides, in relevant part:
If it plainly appears from the
petition and any attached exhibits that the
petitioner is not entitled to relief in the
district court, the judge must dismiss the
petition and direct the clerk to notify the
respondent to file an answer, motion, or
other response within a fixed time, or to
take other action the judge may order.
For the reasons discussed below, the Court dismisses the
petition for lack of jurisdiction.
Petitioner filed this action as a petition for writ of
Petitioner, however, also asserts jurisdiction under the Prison
individual to his visitor’s list, a temporary restraining order
damages based on alleged due process violations arising out of
prison disciplinary sanctions imposed on Petitioner.
(Id. at 1-
Petitioner asserts a due process violation. He has not alleged
any way in which the Administrative Procedure Act was violated.
Petitioner alleges the following facts in support of his
Petitioner received an Incident Report for prohibited
acts on January 21, 2017.
(Id. at 2.)
On February 22, 2017,
prohibited acts, kissing and embracing during a visit.
before his DHO hearing, Shaniece Taylor was removed from his
approved visitors’ list.
Petitioner’s sanction for the
Petitioner’s attempts at resolution through the prison grievance
procedure were unsuccessful.
(Id. at 2.)
28 U.S.C. § 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; . . .
Damages are not available in a habeas proceeding under 28 U.S.C.
Wolff v. McDonnell, 418 U.S. 539, 554 (1974) (citing
Preiser v. Rodriguez, 411 U.S. 475 (1973)) (habeas corpus is not
an appropriate or available remedy for damages claims); Descamps
v. Warden Lewisburg, USP, 617 F. App’x 110, 111 (3d Cir. 2015)
(per curiam) (the proper means for seeking damages or injunctive
relief is a civil rights action).
If Petitioner wishes to seek
damages for a constitutional violation, he must file a separate
civil rights action under Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
A protected liberty interest under the Fourteenth Amendment
may arise from the Constitution or it may be created by law or
Williams v. Sec. Pennsylvania Dep’t Corr., 848 F.3d
549, 558-59 (3d Cir. 2017).
The Due Process Clause does not
guarantee any interest in prison visitation.
Henry v. Dep’t of
Corr., 131 F. App’x 847, 849 (3d Cir. 2005) (citing Ky. Dep't of
notion that “unfettered visitation is guaranteed directly by the
Due Process Clause”); Block v. Rutherford, 468 U.S. 576, 588
(1984) (upholding a blanket prohibition on contact visits to
nonpunitive response” to legitimate security concerns)).
restricted the ability of states to create liberty interests
incidents of prison life.” Id. (quoting Sandin v. Conner, 515
U.S. 472, 484 (1995)).
A loss of visitation privileges is an
ordinary incident of prison life.
Henry, 131 F. App’x at 849
(citing e.g., Phillips v. Norris, 320 F.3d 844, 847 (8th Cir.
2003) (citing cases); see also Ware v. Morrison, 276 F.3d 385,
regarding his prison disciplinary proceeding.
jurisdiction over the § 2241 petition because Petitioner does
not have a liberty interest in visitation privileges.
dismisses the petition in an accompanying Order.
September 22, 2017
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
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