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Joseph Pennello v. United States of America

December 6, 2011

JOSEPH PENNELLO,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENTS.



The opinion of the court was delivered by: Joel A. Pisano United States District Judge

MEMORANDUM OPINION & ORDER

This matter comes before the Court upon an application by petitioner Joseph Pennello ("Pennello" or "Petitioner"), see Docket Entry No. 1, and it appearing that:

1. On August 4, 2011, Pennello's criminal proceedings in this District were concluded with this Court's sentencing Pennello to 96 months of imprisonment. See United States v. Pennello ("Pennello-Criminal"), Crim. Action No. 11-0285 (JAP) (DNJ), Docket Entry No. 16. This Court's judgment included, inter alia, the Court's recommendation to the Bureau of Prisons ("BOP") "to provide medical treatment for [Pennello's] cancerous condition, and drug treatment to aid in his rehabilitation." Id. at 3.

2. On November 30, 2011, the Clerk received an application from Pennello in the form of a letter, dated November 28, 2011, asserting that Pennello has not received any treatment for his cancerous conditions during his confinement at the F.D.C. Philadelphia ("FDCPhila"). Id. at Docket Entry No. 17, 1-2. The letter asserted jurisdiction under 28 U.S.C. § 2241 (with a visible correction, indicating that Pennello's original choice of jurisdiction was 28 U.S.C. § 2255), id. at 2, and requested either Pennello's immediate release from confinement or, in the alternative, injunctive relief in the form an order directing the BOP to initiate treatment of Pennello's cancerous condition. Id. at 2. Pennello's application arrived without any filing fee and without any application to proceed in forma pauperis ("IFP"). See Pennello-Criminal, Docket.

3. In light of Pennello's assertion that his application is made pursuant to 28 U.S.C. § 2241, the Clerk commenced the instant habeas proceeding.

4. To the extent that Pennello seeks release from confinement on the basis of his poor health, Pennello's application is mis-directed to the judicial system: if Pennello is seeking clemency or commutation release on the grounds of his health, this Court has no power to grant it, since such power is vested exclusively in the executive branch of government.*fn1

2. To the extent that Pennello considered fashioning his application as a Section 2255 motion (as the correction in Pennello's application indicates), that motion would be misplaced, because: (a) § 2255 envisions challenges to the sentence as imposed, see In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); Chambers v. United States, 106 F.3d 472, 474 (2d Cir. 1997); Wright v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977); and (b) Pennello's application makes it abundantly clear that Pennello does not challenge his sentence as imposed. See generally Docket Entry No. 1.

3. To the extent that Pennello wishes to challenge the alleged denial of medical care, Pennello's challenges cannot be raised in a Section 2241 petition. Federal law provides two avenues of relief to prisoners: a petition for habeas corpus and a civil rights complaint. See Muhammad v. Close, 540 U.S. 749, 750 (2004). "Challenges to the validity of any confinement or to particulars affecting its duration are the province of habeas corpus . . . [while] requests for relief turning on circumstances of confinement [fall within the realm of] a § 1983 action."*fn2 Id. As § 1983 applies only to state actions, it is not available to federal prisoners; the federal counterpart is an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), alleging deprivation of a constitutional right. See Brown v. Philip Morris, Inc., 250 F.3d 789, 801 (3d Cir. 2001) ("A Bivens action . . . is the federal equivalent of the § 1983 cause of action against state actors, [it] will lie where the defendant has violated the plaintiff's rights under color of federal law."). The Court of Appeals for the Third Circuit explained the distinction between the availability of civil rights relief and the availability of habeas relief as follows:

[W]henever 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 appropriate.

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). Therefore, a prisoner is entitled to a writ of habeas corpus only if he "seek[s] to invalidate the duration of [his] confinement -either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the [government's] custody." Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). In contrast, if a judgment in the prisoner's favor would not affect the fact or duration of the prisoner's incarceration, habeas relief is unavailable and a civil complaint may be appropriate. See, e.g., Ganim v. Federal Bureau of Prisons, 235 Fed. App'x 882 (3rd Cir. 2007) (holding that district court lacks jurisdiction under § 2241 to entertain prisoner's challenge to his transfer between federal prisons); Bronson v. Demming, 56 Fed. App'x 551, 553-54 (3rd Cir. 2002) (habeas relief was unavailable to inmate seeking release from disciplinary segregation to general population, and district court properly dismissed habeas petition without prejudice to any right to assert claims in properly filed civil rights complaint).

4. Here, Pennello asserts undue denial of medical care, seemingly raising Eighth Amendment civil rights issues. Therefore, his claims cannot be raised in a § 2241 habeas petition; rather, these challenges must be raised by means of a Bivens action.

5. Unlike habeas actions, civil rights cases always require a filing fee, either as a prepayment or a series of installment payments. See 28 U.S.C. § 1915. The filing fee for a habeas petition is $5.00, and inmates filing a habeas petition who are granted in forma pauperis (IFP) status do not have to pay the filing fee. See Santana v. United States, 98 F. 3d 752 (3d Cir. 1996) (filing fee payment requirements of PLRA do not apply to IFP habeas corpus petitions and appeals). In contrast, the filing fee for a civil rights complaint is $350.00. See 28 U.S.C. § 1914(a). Inmates filing a civil rights complaint who proceed IFP are required to pay the entire filing fee in monthly installments, which are deducted from the prison account. See 28 U.S.C. § 1915(b). In addition, if a prisoner has, on three or more occasions while incarcerated, brought an action or appeal in a federal court that was dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from immune defendants, then the prisoner may not bring another action IFP unless he or she is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). Because of these differences, courts generally do not sua sponte re-characterize a habeas pleading as a civil rights complaint. See Toolasprashad v. Grondolsky, 570 F. Supp. 2d 610, 631, n. 29 (D.N.J. 2008). Therefore, in the event that Pennello elects to file a Bivens action asserting undue denial of medical care, Pennello shall accompany his civil complaint either with his duly executed IFP application or with his prepayment of the $350 filing fee.

6. Moreover, in the event that Pennello elects to file a Bivens action asserting undue denial of medical care, such action shall be commenced in the proper venue. Because this case implicates federal question jurisdiction, pursuant to 28 U.S.C. § 1331, proper venue is governed by 28 U.S.C. § 1391(b). This Subsection provides that [a] civil action . . . may . . . be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

28 U.S.C. ยง 1391(b) (emphasis supplied). Here, Pennello is asserting denial of medical care by the prison officials at the FDC in Philadelphia. See Docket Entry No. 1. That facility is located with the venue of the United States District Court for the Eastern District of Pennsylvania ("EDPA"). Therefore, ...


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