The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
On December 1, 2004, Petitioner, confined at the Federal
Correctional Institution, Fairton, New Jersey, submitted for
filing to the Clerk of this Court a petition, construed as a
Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. On March 7, 2005, Respondent filed a Response to the
Petition. The Court has reviewed all documents submitted. For the
following reasons, the Court will dismiss the petition for lack
of jurisdiction, and grant Petitioner leave to file a civil
Petitioner was convicted in the United States District Court
for the District of Puerto Rico of various drug charges and
sentenced to 270 months incarceration. According to the record
provided by Respondent, on April 18, 2002 at MDC Guaynabo in
Puerto Rico, an officer monitoring telephone calls noticed an
inmate calling an unknown female and passing information back and
forth to another inmate, identified as Petitioner. Petitioner was
on telephone restriction at the time due to a previous violation.
The telephone conversation was recorded. Petitioner was charged
and found guilty of offense code 397, use of the telephone for
abuses other than criminal activity.
The record reflects that Petitioner was given notice of the
charge via a copy of an Incident Report on April 18, 2002. On
April 22, 2002, Petitioner was informed of his rights. He waived
staff representation and requested no witnesses in his defense.
A hearing was conducted by a Disciplinary Hearing Officer
("DHO") on May 2, 2002. Petitioner denied the charge, stating
that his wife had been shot eight days earlier, and although he
had been permitted to call her the day after the shooting, he
wanted to check on her again. He stated that the inmate placing
the call for him knew his mother-in-law and called her for
Petitioner. The DHO found that Petitioner violated code 397,
based on the reporting officer's account, and the recording of the telephone conversation which revealed: (1) Petitioner's voice
could be overheard before the actual connection; (2) the inmate
who called Petitioner's mother-in-law did not know her, and
introduced himself to her and said he was calling for Petitioner;
(3) the exchange on the telephone between the inmate and
Petitioner's mother-in-law concerned Petitioner's wife's health;
(4) that the inmate repeated Petitioner's words, word-by-word to
the mother-in-law, who responded, and Petitioner replied back and
forth. The DHO also noted that this was Petitioner's third
telephone-related violation and that Petitioner had been "advised
of alternatives" to telephone calls in case of emergency.
Petitioner was sanctioned to 36 months telephone restriction,
from March 16, 2003 through October 23, 2005, and placed in
disciplinary segregation for 15 days.
Petitioner appealed the findings and sanctions to the Regional
Director and the Central Office of the Bureau of Prisons. The
findings and sanctions were affirmed and his appeals were denied.
Petitioner filed the instant Petition, labeled a "writ of
mandamus" on December 1, 2004, and asked the court to vacate and
expunge the violation and sanctions. This Court construed the
Petition as a Petition for a writ of habeas corpus, and ordered
Respondent to answer the allegations and provide the record.
Respondent did so on March 7, 2005. DISCUSSION
Petitioner seeks a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241(c)(3). That section states that the writ will not be
extended to a prisoner unless "he is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3).
Title 28 of the United States Code, section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97
, 106 (1976); Haines v. Kerner, 404 U.S. 519
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116
, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714
, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552
, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912
(1970). B. The Petition Will Be Dismissed for Lack of Jurisdiction.
The record provided by Respondent demonstrates that the only
sanctions received by Petitioner for the telephone abuse charge
were loss of telephone privileges for 36 months and fifteen days
in disciplinary segregation. Because "no matter what the outcome
of [Petitioner's] habeas petition, neither the fact nor the
length of his incarceration will be affected," habeas relief is
unavailable to Petitioner. See Bronson v. Demming, 56 Fed.
Appx. 551, 553-54 (3d Cir. 2002) (unpubl.).
The Court of Appeals for the Third Circuit has explained that:
whenever the challenge ultimately attacks the "core
of habeas" the validity of the continued conviction
or the fact or length of the sentence a challenge,
however denominated and regardless of the relief
sought, must be brought by way of a habeas corpus
petition. Conversely, when the challenge is to a
condition of confinement such that a finding in
plaintiff's favor would not alter his sentence or
undo his conviction, an action under § 1983 is
Leamer v. Fauver, 288 F.3d 532
, 542 (3d Cir. 2002). For
example, in Bronson, Petitioner brought habeas petitions to
challenge the constitutionality of administrative decisions which
placed him in a prison restricted housing unit. See Bronson,
56 Fed. Appx. at 552. The court of appeals rejected Petitioner's
argument that he may challenge the conditions of confinement in a
habeas petition, since no matter what the outcome of the habeas
petition, the fact or length of Petitioner's incarceration would not be affected.
See id. at 554.
Also, in Jamieson v. Robinson, the Court of Appeals for the
Third Circuit noted that the relief requested by Petitioner
"would not serve to diminish the length of his incarceration,"
but rather sought "only to alter the conditions of his
confinement." 641 F.2d 138, 141 (3d Cir. 1981). The court of
appeals followed United States Supreme Court precedent in
Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), to note that
the district court was incorrect in finding that Petitioner's
claims challenging the availability of work release programs in
prison sounded in habeas. See Jamieson, 641 F.2d at 141. The
court of appeals found that despite this error, Petitioner's
claims were subject to dismissal. See id.
Likewise, in Sinde v. Gerlinski, the district court found
that claims concerning the number of telephone calls a prisoner
is permitted to make relate to the conditions of prison life, and
should be raised by a civil rights action, not in a habeas
petition. See 252 ...