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