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Roger D. Moore v. Warden

March 4, 2011

ROGER D. MOORE, PETITIONER,
v.
WARDEN, FEDERAL CORRECTIONAL INSTITUTION, FORT DIX, RESPONDENT.



The opinion of the court was delivered by: Kugler, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2241. For the following reasons, the Court will dismiss the petition for lack of jurisdiction, and grant Petitioner leave to open a civil case under the Declaratory Judgments Act, 28 U.S.C. § 2201.

BACKGROUND

Petitioner filed this "Emergency Petition for a Writ of Habeas Corpus, Pursuant to 28 U.S.C. § 2241, and by Federal Civil Rule 65(A) Requesting Preliminary Injunction." He asks for a declaratory judgment and injunction against Respondent "to cease the actions which have and continue to infringe the Petitioner's Constitutional rights . . . ." (Pet., p. 1). In particular, Petitioner alleges that Respondent and the mail room staff have violated his First Amendment rights "by a past and ongoing pattern of opening, reading and withholding delivery of Petitioner's incoming legal mail . . . " (Pet., p. 2). He states that he was harmed with "actual injury" due to this problem (Pet., p. 2), and that Respondent and mail room staff, "by repeatedly opening his legal and court mail outside of his presence, have violated his rights to confidential and uncensored and/or unwithheld communications and violated his rights protected by the First and Fifth Amendments of the Constitution." (Pet., p. 13).

Petitioner points out that he is not attacking the Bureau of Prisons ("BOP") policy of handling inmate mail, nor the specific authority of BOP employees to open the mail in his presence. (Pet., pp. 12-13). Petitioner cites to specific examples in his Petition of instances where legal mail was opened outside of his presence, and outlines the administrative remedies he has filed.

DISCUSSION

A. Standard of Review

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).

United States Code Title 28, 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, 520 (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). Nevertheless, a federal district court can dismiss a habeas corpus petition if it appears from the face of the petition that the petitioner is not entitled to relief. ...


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