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Terrell v. Fox

United States District Court, D. Colorado

May 15, 2018

JACK FOX, Warden, Respondent.


          Michael E. Hegarty United States Magistrate Judge.

         Applicant Brooks James Terrell filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging a disciplinary proceeding that resulted in a loss of fourteen visitation days. Because Mr. Terrell's challenge does not affect the validity or length of his confinement, a writ of habeas corpus is not available. Accordingly, I respectfully recommend that Mr. Terrell's application be dismissed.


         Mr. Terrell is a current inmate at the Florence ADMAX Penitentiary in Florence, Colorado. On March 4, 2017, Mr. Terrell allegedly refused to take his required medication. Incident Report 2, ECF No. 15-4. As a result, prison officials issued an incident report for mis-use of authorized medication and conducted a disciplinary proceeding. Id.

         On November 30, 2017, Mr. Terrell filed the present Amended Application for Writ of Habeas Corpus, ECF No. 6. Mr. Terrell alleges his due process rights were infringed through the proceedings that resulted from the medication incident. Id. at 2. According to Mr. Terrell, Respondent did not conduct an initial investigation, and the hearing was not fair and impartial. Id.

         Although Mr. Terrell does not explain any sanctions Respondent imposed, he claims that the incident is hampering his “transfer/advancement thr[ough] [prison] programs.” Id. at 5.

         Respondent filed a response on March 22, 2018. Resp. to Am. Appl. for Writ of Habeas Corpus, ECF No. 15. Respondent asserts the Court lacks jurisdiction over Mr. Terrell's application, because the disciplinary proceeding did not affect the duration or legality of Mr. Terrell's confinement. Id. at 3. Additionally, Respondent contends the disciplinary proceeding did not infringe Mr. Terrell's due process rights. Id. at 5-8. Mr. Terrell did not file a reply brief.


         A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The court should not be the pro se litigant's advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

         A § 2241 habeas proceeding is generally “an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “A motion pursuant to § 2241 generally . . . [includes] 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.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001). “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996).


         I recommend denying Mr. Terrell's application for a writ of habeas corpus, because the discipline Mr. Terrell received did not affect the legality or length of his sentence. Mr. Terrell does not detail the discipline Respondent imposed. However, the incident report states that Mr. Terrell will lose fourteen days of visitation. Incident Report 2, ECF No. 15-4. The correctional counselor who conducts disciplinary hearings at the prison confirmed that the loss of visitation days is the only discipline Mr. Terrell received as a result of the incident. Decl. of Leonard Robinson ¶ 16, ECF No. 15-1.

         “[T]he types of claims cognizable under § 2241 are those in which an individual seeks either immediate release from, or a shortened period of, physical imprisonment, i.e., placement on parole or in a parole-like custodial setting, or immediate release from, or a shortened period of, custody altogether.” Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012). Conversely, “[p]risoners who raise constitutional challenges to other prison decisions-including transfers to administrative segregation, exclusion from prison programs, or suspension of privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens.” Boyce v. Ashcroft, 251 F.3d 911, 914 (10th Cir. 2001), vacated as moot, 268 F.3d 953 (10th Cir. 2001).

         Here, Mr. Terrell received only a suspension of his privileges-i.e., less visitation days. Mr. Terrell does not allege or produce evidence that Respondent imposed any other discipline that affects the length of his confinement, such as loss of good time credits. Although Mr. Terrell states the incident report is “hamper[ing] the applicant transfer/advancement thru [prison] programs, ” he does not detail the prison programs in which he is unable to participate or explain how not advancing through prison programs is affecting the length of his confinement. Because the incident report and disciplinary hearing deprived Mr. Terrell only of prison privileges, he must bring his challenge pursuant to Bivens. See Ricco v. Conner, 146 Fed.Appx. 249, 253-54 (10th Cir. 2005) (unpublished) (holding that a § 2241 petition was not the proper mechanism to challenge disciplinary proceedings that resulted in denial of a prisoner's visitation privileges); see ...

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