Almote v. Hufford

Filing 4

MEMORANDUM and ORDER DISMISSING petition for writ of habeas corpus; Clerk of Court is directed to CLOSE case. Signed by Honorable James M. Munley on 11/17/11. (sm, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARINO ALMONTE,
Petitioner

:
3:11cv2107
:
:
(Judge Munley)
v.
:
:
H.L. HUFFORD WARDEN,
:
Respondent
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Marino Almonte’s1 “Emergency
Petition for a Writ of Habeas Corpus” (Doc. 1) pursuant to 28 U.S.C. §
2241. Marino Almonte (“petitioner”) is an inmate incarcerated in the
Federal Correctional Institution-Schuylkill (“FCI-Schuylkill”). The matter
has been fully briefed and is ripe for disposition.
Background
Petitioner was convicted of illegal reentry to the United States in
violation of 8 U.S.C. § 1326. (Doc. 1, ¶ 1). He was sentenced to thirty-six
(36) months in prison. (Id.) Petitioner is currently imprisoned in the FCISchuylkill after he was transferred from a Federal Prison in Tennessee to
be closer to his family in New York City. (Id. ¶ 2). He is scheduled to be
released from prison on March 14, 2012. (Id. ¶ 3). It appears that
petitioner will be deported to the Dominican Republic following his release.
(Id. ¶ 4).
In July 2009, petitioner claims that after a series of medical problems
and treatments at FCI-Schuylkill, he experienced severe, debilitating and
life-threatening health problems. (Id. ¶ 7). FCI-Schuylkill diagnosed

The government indicates that there was a typographical error in
the petition identifying petitioner as Marino Almonte. However, the prison
medical records properly identify him as Marino Maximili Almonte-Rosa.
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petitioner as having H-Pylori, a bacterial infection of the stomach that is
associated with peptic ulcers. (Doc. 1, ¶ 7, Doc. 3, Ex. 1).
Following the diagnosis, petitioner received treatment from July 2011
to September 2011. (Doc. 1, ¶ 8). The treatment consisted mainly of
antibiotic prescriptions. During those two months, petitioner experienced
weight loss of approximately fifty (50) pounds. (Id. ¶ 9). He claims that the
treatment was unsuccessful and that his symptoms continue. He also
claims that he spits up blood and excretes blood in his bowel movements.
(Id. ¶ 10). Petitioner believes that if these symptoms continue he will not
survive until the date of his scheduled release in March. (Id. ¶ 11).
Petitioner submitted various letters to administrative officials, elected
officials, and other media outlets, but no one responded. (Id. ¶ 13). He
unsuccessfully petitioned for transfer to the Western District of Tennessee,
where he was convicted. (Id. ¶ 15). He also claims that he exhausted his
administrative remedies with the prison’s medical staff. (Id. ¶ 17).
Based on the foregoing, petitioner brings this emergency petition for
a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner requests the
following relief: an immediate evidentiary hearing in support of his
emergency petition; early release from FCI-Schuylkill and immediate
deportation to the Dominican Republic; release to a halfway house, where
petitioner will serve the remainder of his sentence; immediate furlough to a
hospital for diagnosis and treatment; an independent medical examination
at Schuylkill; and/or a temporary restraining order against the staff at FCISchuylkill. (Doc 1, ¶ 23).
Upon receipt of the emergency petition, we ordered the government
to respond within five (5) days. (Doc. 2). The government timely filed a

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response to the petition on November 15, 2011. (Doc. 3). Upon review of
the case, we find that no hearing is needed and that the matter is ripe for
disposition.
Jurisdiction
Because this case is brought under 28 U.S.C. § 2241 (“Section
2241"), the court has jurisdiction pursuant to 28 U.S.C. § 1331. (“The
district courts shall have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”). Section 2241
“confers jurisdiction on district courts to issue writs of habeas corpus in
response to a petition from a state or federal prisoner who ‘is in custody in
violation of the Constitution or laws or treaties of the United States.’”
Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). The federal habeas
statute also requires that the petitioner be in custody “under the conviction
or sentence under attack at the time his petition is filed.” Lee v. Stickman,
357 F.3d 338, 342 n.3 (3d Cir. 2004) (quoting Maleng v. Cook, 490 U.S.
488,490-91 (1989)).
Section 2241, unlike other federal habeas statutes, “confers habeas
jurisdiction to hear the petition of a federal prisoner who is challenging not
the validity but the execution of his sentence.” Coady, 251 F.3d at 485.
Although the Third Circuit Court of Appeals has yet to clearly define the
meaning of “execution” in this context, it has cited approvingly holdings
from other circuits finding that a Section 2241 motion properly challenges
“‘such matters as the administration of parole, computation of a prisoner's
sentence by prison officials, prison disciplinary actions, prison transfers,
type of detention and prison conditions.’” Woodall v. Fed. Bureau of
Prisons, 432 F.3d 235, 242 (3d Cir. 2005) (quoting Jimian v. Nash, 245

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F.3d 144, 147 (2d Cir. 2001)).
Discussion
In response to petitioner’s emergency motion, respondent argues
that habeas relief is not appropriate, where as here, petitioner is not
challenging the validity of his detention or the length of his sentence, but
instead the conditions of his confinement. See Leamer v. Fauver, 288
F.3d 532, 543 (3d Cir. 2002); Preiser v. Rodriguez, 411 U.S. 475, 498
(1973). We agree.
The Third Circuit Court of Appeals has emphasized 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 . . .
must be brought by way of a habeas corpus petition.” See Leamer, 288
F.3d at 543. However, in this action, petitioner does not challenge the fact
or length of his confinement, but rather the conditions of that confinement
and the treatment he is receiving. Courts have held that habeas corpus is
not the proper vehicle for a prisoner to challenge medical treatment
received in prison. See Lee v. Williamson, 297 F.App’x 147, 148 (3d Cir.
2008).
While granting the petitioner’s request to release him to another
facility would in effect shorten the length of his incarceration, the essence
of his challenge is truly the conditions and medical treatment he is
receiving during his confinement. Because the petitioner was not entitled
to use a writ of habeas corpus to secure this type of relief, the petitioner’s
writ of habeas corpus is not properly before the court.
Petitioner’s challenge to the conditions of his confinement and his
medical treatment could have been filed in a civil rights action pursuant to

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Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971), or in a civil action for declaratory or injunctive relief.
Therefore, the court will dismiss this petition without prejudice, so that
petitioner may later file a separate action under Bivens if he so decides.2
Conclusion
For the reasons stated above, the court will deny the petition without
prejudice. An appropriate order follows.

We make no determination as to the merits of petitioner’s claim if
he should decided to file a Bivens civil rights action. We simply note that
his challenge as to the conditions of his confinement would be more
appropriately brought under a separate civil action.
2

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UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MARINO ALMONTE,
Petitioner

:
3:11cv2107
:
:
(Judge Munley)
v.
:
:
H.L. HUFFORD WARDEN,
:
Respondent
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 17th day of November 2011, Marino Almote’s
“Emergency Petition for Writ of Habeas Corpus” (Doc. 1) is hereby
DISMISSED. The Clerk of Court is directed to CLOSE this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
UNITED STATES DISTRICT COURT

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