RILEY v. ORTIZ
Filing
4
OPINION. Signed by Judge Renee Marie Bumb on 9/22/2017. (dmr)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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DAYVON RILEY,
Petitioner,
v.
WARDEN DAVID ORTIZ,
Respondent,
Civ. Action No. 17-3233 (RMB)
OPINION
BUMB, District Judge
Petitioner,
Dayvon
Riley,
presently
incarcerated
in
FCI
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
his
visitor’s
list,
and
money
damages
for
a
due
process
violation in connection with his prison disciplinary proceeding.
(Pet.,
ECF
terminated
No.
1
because
at
3.)
Petitioner
The
was
case
was
ineligible
administratively
for
in
forma
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:
The
judge
must
promptly
examine
[the
petition].
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
petitioner.
If
the
petition
is
not
dismissed,
the
judge
must
order
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.
I.
BACKGROUND
Petitioner filed this action as a petition for writ of
habeas
corpus
under
28
U.S.C.
§
2241.
(Pet.,
ECF
No.
1.)
Petitioner, however, also asserts jurisdiction under the Prison
Litigation
(Id.
at
Reform
1.)
Act
and
Petitioner
the
Administrative
seeks
restoration
Procedure
of
a
Act.1
specific
individual to his visitor’s list, a temporary restraining order
to
return
this
individual
to
his
visitor’s
list,
and
money
damages based on alleged due process violations arising out of
prison disciplinary sanctions imposed on Petitioner.
(Id. at 1-
4.)
1
Petitioner asserts a due process violation. He has not alleged
any way in which the Administrative Procedure Act was violated.
2
Petitioner alleges the following facts in support of his
petition.
Petitioner received an Incident Report for prohibited
acts on January 21, 2017.
Petitioner
was
found
(Id. at 2.)
guilty
of
only
On February 22, 2017,
one
of
the
prohibited acts, kissing and embracing during a visit.
One
week
after
Petitioner
received
the
Incident
charged
(Id.)
Report
but
before his DHO hearing, Shaniece Taylor was removed from his
approved visitors’ list.
prohibited
act
was
(Id.)
ninety
Petitioner’s sanction for the
days
with
no
visits.
(Id.)
Petitioner’s attempts at resolution through the prison grievance
procedure were unsuccessful.
II.
(Id. at 2.)
DISCUSSION
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.
§ 2241.
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
3
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
regulation.
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
Corr.
v.
Thompson,
490
U.S.
454,
460
(1989)
(rejecting
any
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
pretrial
detainees
because
it
was
an
“entirely
reasonable,
nonpunitive response” to legitimate security concerns)).
Furthermore,
in
Sandin,
“the
Supreme
Court
severely
restricted the ability of states to create liberty interests
benefitting
interests
significant
prisoners,
would
be
in
hardship[s]
holding
that
remaining
...
in
the
free
only
from
relation
to
protectable
“atypical
the
and
ordinary
incidents of prison life.” Id. (quoting Sandin v. Conner, 515
4
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,
387
(8th
Cir.
2002)
prisoner's
ability
Petitioner
does
(involving
to
not
be
state
an
visited
a
18–month
by
his
cognizable
suspension
wife).
Due
of
a
Therefore,
Process
Claim
Court
lacks
regarding his prison disciplinary proceeding.
III. CONCLUSION
For
the
reasons
discussed
above,
the
jurisdiction over the § 2241 petition because Petitioner does
not have a liberty interest in visitation privileges.
The Court
dismisses the petition in an accompanying Order.
Dated:
September 22, 2017
s/Renée Marie Bumb
Renée Marie Bumb
United States District Judge
5
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