United States District Court, D. Kansas
ORDER TO SHOW CAUSE
W. LUNGSTRUM U.S. DISTRICT JUDGE.
filed this matter as a petition for writ of habeas corpus
under 28 U.S.C. § 2241. Petitioner, a prisoner in
federal custody at USP-Leavenworth in Leavenworth, Kansas,
proceeds pro se. Petitioner challenges the BOP's
delay in placing him in a halfway house and alleges it was
done without due process and in retaliation for filing
grievances. Petitioner alleges that he was approved for 120
days in a halfway house, and now he will only receive 25
days. Petitioner also alleges that the BOP is
keeping him in the SHU without cause and refusing to place
him back in the general population despite the expiration of
his “segregation sentence” on October 25, 2018.
Petitioner alleges that the BOP is considering placing him in
C2 Block, but that block is designated for inmates under
investigation for K2 use, which he alleges does not apply to
him. Petitioner alleges that staff are taking his property
and forms, and by failing to fix the printer they are
preventing him from printing documents off the law library
seeks an injunction: to restore his halfway house
date; to stop any further attempt to deter him
from seeking relief; to order the BOP to use disciplinary
procedures for any further rule infractions; to immediately
remove him from the SHU or C2 Unit or any other unwarranted
disciplinary measures unless ordered by a Disciplinary
Hearing Officer; to be placed in general population or a
halfway house immediately; for prompt access to the law
library two times per week; and to order staff to stop taking
Petitioner's property. Petitioner has also filed a
request (Doc. 4) asking the Court to amend his petition to
add a request for an injunction to order SHU staff to stop
placing him in a “hard cell” with no heat and as
a form of punishment. Petitioner alleges that his placement
in a “hard cell” violates the Eighth Amendment.
Petitioner has also filed a motion (Doc. 3) to expedite
resolution of his petition.
obtain habeas corpus relief, an inmate must demonstrate that
“[h]e is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). A petition under 28 U.S.C. § 2241
provides the remedy to challenge the execution of a sentence.
Brace v. United States, 634 F.3d 1167, 1169 (10th
Cir. 2011). Thus, a petitioner may challenge the fact or
duration of his confinement and may seek release or a shorter
period of confinement. See Palma-Salazar v. Davis,
677 F.3d 1031, 1037 n.2 (10th Cir. 2012). However, claims
challenging a prisoner's conditions of confinement do not
arise under Section 2241. See McIntosh v. United
States Parole Comm'n, 115 F.3d 809, 811-12 (10th
Cir. 1997) (contrasting suits under Section 2241 and
conditions of confinement claims).
United States v. Garcia, the appellants did not seek
release from BOP custody, but rather both sought a court
order directing the BOP to transfer them to detention
facilities located closer to their families. United
States v. Garcia, 470 F.3d 1001, 1002 (10th Cir. 2006).
The Tenth Circuit held that where appellants were in lawful
custody of the BOP and sought “a change in the place of
confinement rather than a shortened period of custody[,
]” their challenges must be brought in a
Bivens action. Id. at 1003; see also
Palma-Salazar, 677 F.3d at 1035 (noting that
Palma-Salazar did not challenge the BOP's underlying
authority to hold him in custody, but rather he challenged
his placement within the federal prison system); see also
Bruscino v. True, 708 Fed.Appx. 930, 935 (10th Cir.
2017) (unpublished) (finding claim that transfer was in
retaliation for role in class action lawsuit was not properly
brought in a § 2241 habeas proceeding because it
challenges the conditions of confinement rather than the
duration of custody).
present case, Petitioner does not complain of the loss of
good conduct time or of any negative impact on the duration
of his sentence. Rather, he claims retaliation and takes
issue with the delay by the BOP in placing him in a halfway
house. Petitioner's remaining claims regarding his
placement within USPL, his access to the law library, his
loss of property, and his Eighth Amendment claim, are
likewise claims regarding his conditions of confinement.
Accordingly, he must proceed, if at all, in a civil rights
action filed pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Requena v. Roberts, 552 Fed.Appx. 853,
856 (10th Cir. April 7, 2014) (unpublished) (remanding to
district court to determine whether petitioner had adequately
alleged civil rights claims).
Court sees no practical reason to convert the instant §
2241 action to a Bivens action in light of
Petitioner's four pending civil rights actions raising
similar issues. See Nos. 18-3206-SAC, 18-3219-SAC,
18-3232-SAC and 18-3276-SAC. In Bell v. English, No.
18-3276-SAC, Petitioner raises the same issues regarding the
alleged retaliatory delay in his halfway house date, his
unwarranted SHU classification, and that staff are taking his
property and forms. In that case, the Court has ordered an
expedited response to Plaintiff's motion for an expedited
preliminary injunction. See id. at Doc. 5.
Therefore, the Court denies Petitioner's motion to
expedite resolution of his petition in the current case and
directs Petitioner to show good cause why this matter should
not be dismissed.
IS THEREFORE ORDERED BY THE COURT that Petitioner is
granted until November 30, 2018, in which to
show good cause why his petition under § 2241 should not
be dismissed for the reasons set forth in this Order to Show
IS FURTHER ORDERED that Petitioner's motion to
expedite resolution of his petition (Doc. 3) is
IS SO ORDERED.
 Under the Second Chance Act of 2007,
18 U.S.C. § 3624(c), the Federal Bureau of Prisons
(“BOP”) is authorized to place prisoners in a
residential reentry center, or halfway house, for up to
twelve months before the end of the prisoner's term of
 The Court notes that courts have held
that “[i]n the context of challenges to the length of a
prisoner's placement in a RRC, the relief which may be
granted is an order directing the BOP to perform the
individualized consideration required by federal law, and not
an order directing that the prisoner be placed in a
RRC.” Lanni v. Hollingsworth, 2012 WL 523744,
at *4 (citations omitted). See Kyles v. Chester, No.
09-3266-RDR, 2011 WL 855801, at *3-4 (D. Kan. March 9, 2011)
(noting that “[a]ll that federal inmates like
petitioner are entitled to receive is consideration for RRC
placement based on an application of the factors set forth in
18 U.S.C. § 3621(b)” and that the court is not
authorized to grant petitioner relief in the form of twelve
months of RRC placement); see also Sparks v.
Chester, No. 11-3025-RDR, 2013 WL 1896998, at *1 (D.
Kan. May 6, 2013) (“Where a prisoner challenges the
period of ...