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December 30, 2005.

RONNIE HOLT, Respondent.

The opinion of the court was delivered by: A. CAPUTO, District Judge


I. Introduction

Petitioner, Forest Gilliam, an inmate at the Schuylkill Federal Correctional Institution ("FCI-Schuylkill") in Minersville, Pennsylvania, commenced this pro se action with a petition for writ of habeas corpus (Doc. 1) filed pursuant to the provisions of 28 U.S.C. § 2241. Thereafter, Petitioner filed a motion for leave to proceed in forma pauperis (Doc. 4). Petitioner alleges abuse of authority and racially motivated disparate treatment of inmates by corrections officers at SCI-Schuylkill, resulting, inter alia, in excessive punishment of Petitioner (loss of privileges and good conduct time) for a misconduct on July 24, 2005. He seeks "to have his phone privileges, visiting privileges, and his 87-days Good Conduct time returned to him. . . ." (Doc. 1 at 20). For the following reasons, the petition will be summarily dismissed without prejudice, allowing the Petitioner to pursue his claims under the appropriate statutory provisions.

  II. Background

  On July 25, 2005, Petitioner was issued disciplinary incident report # 1365027 (Doc. 1, Ex. D) for allegedly fighting with another person and possession of a weapon. The officer that issued the report stated that a review of video surveillance tapes revealed Petitioner and another inmate engaged in "mutual combat" at 5:56:50 p.m. on July 24, 2005. The tapes show that facial punches and body blows were mutually exchanged, fire extinguishers were used as potential weapons in the altercation, and the fight ended when the participants stopped and returned to their cells. (Doc. 1, Ex. D at 2.)

  Petitioner received a hearing on the incident report on August 15, 2005. (Id. at 1.) At the conclusion of the hearing, Petitioner was found to have committed the offense of fighting with another inmate, and the charge of possession of a weapon was expunged. (Id. at 3.) As a result, Petitioner was sanctioned with 30 days disciplinary segregation, disallowance of 27 days GCT, forfeiture of 60 days non vested GCT, 180 days loss of telephone and visiting privileges, and a disciplinary transfer. (Id.) The instant petition ensued. Petitioner claims that: (1) the sanctions are racially motivated; (2) the prison officials abused their authority by ordering his transfer; and (3) intake personnel improperly processed another inmate. (Doc. 1 at 6.)

  III. Discussion

  A. Summary Dismissal of Habeas Petition

  Habeas corpus petitions brought under § 2241 are subject to summary dismissal pursuant to 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) (applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F. Supp. 156, 158-59 (M.D. Pa. 1979). Under Rule 4, the judge is required to screen habeas corpus petitions, and "[i]f 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.) Accord U.S. ex rel. DeCreti v. Wilson, 967 F.Supp. 303 (N.D.Ill. 1997). 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.

  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). To the extent that Petitioner seeks restoration of telephone and visiting privileges, denial of transfer, or relief on intake personnel's treatment of another inmate, he is not challenging the duration or propriety of his sentence. Instead, Petitioner is challenging the conditions of his confinement. The favorable resolution of these issues will not result in the Petitioner's release, nor an adjustment in the remainder of time on his sentence.*fn1 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, the Petitioner does not plead any facts which would establish this as an extreme case. Additionally, if the Petitioner is allowed to proceed with these issues in the instant 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 on Petitioner's civil rights claims in the context of a habeas petition; this relief, if appropriate, would be granted in the context of a civil rights claim. Nevertheless, Petitioner also seeks restoration of good conduct time ("GCT"), and such a claim is cognizable in the context of a habeas corpus proceeding, and the Court will address the merits of the claim.

  B. Loss of Good Conduct Time

  i. Fourteenth Amendment

  The Fourteenth Amendment of the United States Constitution provides some protection to Petitioner's interest in his GCT. The Fourteenth Amendment states in pertinent part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law. . . ." The Supreme Court has mandated a two-part analysis of a procedural due process claim: first, "whether the asserted individual interests are encompassed within the . . . protection of `life, liberty or property(,)'" and second, "if protected interests are implicated, we then must decide what procedures constitute `due process of law.'" Ingraham v. Wright, 430 U.S. 651, 672 (1977); Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000).

  Liberty interests protected by the Fourteenth Amendment may arise either from the Due Process Clause itself or from state law. Torres v. Fauver, 292 F. 3d 141, (3d Cir. 2002). It is well-settled that "prison disciplinary proceedings are not part of a criminal prosecution and the full panoply of rights due a defendant in such proceedings does not apply." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Nevertheless, the Supreme Court found that there can be a liberty interest at stake in disciplinary proceedings in which an inmate loses GCT. Id. Therefore, since Petitioner was sanctioned with the disallowance of 27 days GCT and ...

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