United States District Court, M.D. Pennsylvania
December 7, 2005.
BERNARD ALLEN, Petitioner,
JOSEPH V. SMITH, Warden, et al., Respondents.
The opinion of the court was delivered by: A. CAPUTO, District Judge
Petitioner, Bernard Allen, an inmate at the United States
Penitentiary in Lewisburg ("USP-Lewisburg"), Pennsylvania,
commenced this pro se action with a petition for writ of habeas
corpus filed pursuant to the provisions of 28 U.S.C. § 2241.
Petitioner contemporaneously filed a motion to proceed in forma
pauperis (Doc. 2). Petitioner alleges that he has been
improperly placed in the Special Housing Unit ("SHU") at
USP-Lewisburg, and he seeks release to general population. For
the reasons set forth hereinafter, the Petition will be dismissed
without prejudice, allowing the Petitioner to pursue his claims
under the appropriate statutory provisions.
A petition for writ of habeas corpus may be brought by a
prisoner who seeks to challenge the fact or duration of the
prisoner's confinement. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973); Georgevich v. Strauss, 772 F.2d 1078, 1086 (3d Cir.
1985), cert. denied, 475 U.S. 1028 (1986). In this case, the
Petitioner is not challenging the duration or propriety of his
sentence. Instead, the Petitioner is seeking "release from
special housing unit confinement to general population. (Doc. 1
at 7.) The favorable resolution of the issue raised in the petition will not result in Petitioner's release,
nor an adjustment in the remainder of time on his sentence. In
Ali v. Gibson, 572 F.2d 971 (3d Cir. 1978), the United States
Court of Appeals for the Third Circuit stated that an attack on
the conditions of confinement is cognizable in a federal habeas
action only in extreme cases. Gibson, 572 F.2d at 975, n. 8
[citing Willis v. Ciccone, 506 F.2d 1011, 1014-15 (8th Cir.
1974)]. However, Petitioner does not plead any facts which would
establish this as an extreme case. Additionally, if the
Petitioner is allowed to proceed with this habeas action, he
would be able to evade the higher filing fee for a civil rights
action and he would potentially circumvent restrictions of the
Prison Litigation Reform Act, including the "three strikes"
provision of 28 U.S.C. § 1915(g). Consequently, this Court is
unable to grant the requested relief in the context of a habeas
petition. The remedies sought by the Petitioner, if appropriate,
would be granted in the context of a civil rights claim.
Pursuant to the provisions of Rule 4 ("Preliminary
Consideration by the Judge") of the Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. §
2254 (1977), "if it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court, the judge shall make an
order for its summary dismissal and cause the petitioner to be
notified." A petition may be dismissed without review of an
answer "when the petition is frivolous, or obviously lacking in
merit, or where . . . the necessary facts can be determined from
the petition itself. . . ." Allen v. Perini, 424 F.2d 134, 141
(6th Cir.), cert. denied, 400 U.S. 906 (1970). Accord Love
v. Butler, 952 F.2d 10, 15 (1st Cir. 1991). The Allen
court also stated that "the District Court has a duty to screen
out a habeas corpus petition which should be dismissed for lack
of merit on its face." 424 F.2d, at 141. In light of the foregoing, the Petition for Writ of Habeas
Corpus is denied without prejudice to any right the Petitioner
may have to reassert his present claims in an appropriate civil
rights complaint. An appropriate Order follows. ORDER
AND NOW, THIS 7th DAY OF DECEMBER, 2005, in accordance with
the foregoing memorandum, IT IS HEREBY ORDERED THAT:
1. Petitioner's motion to proceed in forma pauperis
(Doc.2) is GRANTED for the limited purpose of
filing this petition.
2. The petition for writ of habeas corpus (Doc.1) is
DENIED without prejudice to any right petitioner
may have to reassert the instant claims in a properly
filed civil rights action.
3. The Clerk of Court is directed to mark this case
4. Based upon the Court's conclusion herein, there is
no basis for the issuance of a certificate of
5. The Clerk of Court is directed to provide the
Petitioner with a copy of the form used in filing a
civil rights action, as well as the form used for
filing a habeas corpus action.
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