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Steven Mcgee v. Warden Jerry Martinez

December 2, 2010

STEVEN MCGEE, APPELLANT
v.
WARDEN JERRY MARTINEZ



On Appeal from the United States District Court for the Middle District of Pennsylvania District Court No. 3-08-cv-01663 District Judge: The Honorable Richard P. Conaboy

The opinion of the court was delivered by: Smith, Circuit Judge.

PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 21, 2010

Before: SMITH, FISHER, and COWEN, Circuit Judges

OPINION

The sole issue before the Court in this case is whether petitioner Steven McGee, a federal inmate, may maintain this suit as a habeas action under 28 U.S.C. § 2241, or whether he must re-file it as a civil rights action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

I

Following a guilty plea to federal drug charges, McGee was sentenced in the United States District Court for the Western District of Michigan to 120 months and a $10,000 fine. He is indigent, and the judgment imposing the sentence instructed that ―[p]ayment [of the fine] is to be made from prison earnings at a rate of $20.00 per month,‖ with the remaining balance to be paid at an increased rate upon his release from prison. McGee avers in his habeas petition that his prison earnings presently amount to $5.25 per month.

McGee was initially housed at McKean Federal Correctional Institution, where he stayed from July 2004 through December 2005. While at McKean, McGee was introduced to the Inmate Financial Responsibility Plan (―IFRP‖), 28 C.F.R. §§ 545.10--545.11. He agreed to pay a minimum of $25 per quarter toward his fine in exchange for not (1) being limited to spending $25 per month in the commissary, (2) being ineligible for placement in a halfway house prior to his release, (3) receiving an increased security designation, and (4) receiving an undesirable housing designation.*fn1 At that time, McGee's pursuit of habeas relief from his underlying conviction and sentence was costing him some $130 per month in the commissary on copying charges and ―other related costs such as typewriter ribbons, legal pads, etc.‖; he apparently borrowed money to pay for all of this.

In December 2005, McGee was transferred to Allenwood Low Security Correctional Institution, located in the Middle District of Pennsylvania. He began on the same $25 per quarter IFRP plan for the payment of his fine, but after several months was asked to increase the payments to $75 per quarter, apparently because the authorities learned that he had a substantial sum of money in his bank account (according to McGee, these were funds borrowed to pay the costs associated with his habeas petition). He refused to agree to the increase and was placed on ―IFRP refusal status,‖ which limited his commissary spending to $25 per month- not enough to meet his needs as he pursues habeas relief from the judgment against him. In August of 2008, disciplinary segregation and a loss of good time were recommended for failure to fulfill his IFRP requirements. The record is not clear as to why these additional penalties were recommended or whether they were ever imposed.

McGee filed the instant petition pro se under 28 U.S.C. § 2241, alleging that his rights were being violated by ―unconstitutional conditions of his confinement‖-to wit, the restriction of his commissary spending and the hindrance this imposed on his ability to pursue his original habeas action. The District Court sua sponte dismissed the action without prejudice the day after it was filed, concluding that because it challenged the conditions of McGee's confinement it should have been filed as a civil rights action. McGee timely appealed.*fn2

II

The ―core‖ habeas corpus action is a prisoner challenging the authority of the entity detaining him to do so, usually on the ground that his predicate sentence or conviction is improper or invalid. See Leamer v. Fauver, 288 ...


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