United States District Court, D. New Jersey
DEAN A. LEWIN, Petitioner,
v.
WARDEN DONALD J. LOMBARDO, et al., Respondents.
Dean
A. Lewin, Petitioner pro se
Jeffrey Ryan Lindsay, Esq. Counsel for Respondents
MEMORANDUM OPINION & ORDER
NOEL
L. HILLMAN, U.S.D.J.
WHEREAS,
Petitioner Dean Anthony Lewin, who is proceeding pro
se and is incarcerated, filed an Amended Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
challenging his pretrial detention in Cape May County. ECF
No. 4. Petitioner alleges that he has been held as a
pre-trial detainee with no bail for a period of time which
“drastically exceed[s]” the sentence applicable
if the Petitioner were found guilty of the pending charges,
id. at 9;[1] and
WHEREAS,
when Petitioner filed his Amended Petition, he sought to
proceed in forma pauperis without prepayment of
fees, ECF No. 4-1; and
WHEREAS,
the Court granted Plaintiff's IFP application, ECF No. 5,
screened the Amended Petition, and ordered the Respondents to
file an answer, ECF No. 6; and
WHEREAS,
in addition to his Amended Petition and IFP application,
Petitioner filed a Motion for a Temporary Restraining Order
(“TRO”) under Federal Rule of Civil Procedure 65,
ECF No. 10;[2] and
WHEREAS,
Plaintiff seeks a TRO to (1) “remove the plaintiff from
his involuntary placement in the restrictive 23 hour lock-in
unit known as ‘House One (1)';” (2)
“cease all harassment, disclamation, and stalking of
the plaintiff;” and (3) “suspend and place on
extended leave of absence, Sergeant Robert Neilson, Officers
Mark Howard, Edmans, & Sergeant T. Lennenger and take
actions to prevent the officers of the Cape May County
Sheriff's Department from continued harassment of
plaintiff;” ECF No. 10 at 1; and
WHEREAS,
Petitioner sought for the Motion to be filed under the
above-captioned § 2241 habeas petition but lists as
“Defendants” on his Motion the Cape May County
Sheriff's Office, Warden Donald J. Lombardo, John Does
1-2, John Does 3-10, Officer Edmans, Sergeant Christen
Caldwell, Sergeant T. Lennenger, and Sergeant Robert Neilson,
ECF No. 10 at 1; and
WHEREAS,
the Court must deny Plaintiff's request for a TRO because
Petitioner's new claims in his motion for injunctive
relief are not cognizable in a habeas petition, whether
brought pursuant to 28 U.S.C. § 2241 or another habeas
statute.[3] See Leamer v. Fauver, 288 F.3d
532, 542 (3d Cir. 2002) (“[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, a[] [civil rights] action . . . is
appropriate”); Spruill v. Rosemeyer, 36
App'x 488, 489 (3d Cir. 2002) (“There are no
material differences for purposes of this appeal between
appellant's claims - that prison officials wrongfully
disciplined him by placing him in segregated housing for one
month and transferring him to a higher security prison in
retaliation for exercising his First Amendment Rights - and
the claims in Leamer. The appellant challenges the
conditions of his confinement, not the fact or duration
thereof, and such a challenge could not have been brought by
means of a habeas action.”); Boney v. Dix, No.
16-798 (RMB), 2016 WL 744571, at *1-2 (D.N.J. Feb. 23, 2016);
Coaxum v. Zickefoose, No. 10-6115 (RBK), 2011 WL
765984, at *2 (D.N.J. Feb. 24, 2011) (“To the extent a
prisoner challenges his conditions of confinement, such
claims must be raised by way of a civil rights
action.”); and
WHEREAS,
if Petitioner would like to bring such a claim against the
named defendants, he must proceed by filing a civil rights
actions pursuant to 42 U.S.C. § 1983, and, if he would
like to proceed without prepayment of fees, he must also file
a complete application to proceed in forma pauperis;
THEREFORE,
IT IS on this 11th day of December, 2018
ORDERED
that Petitioner's Motion for Temporary Restraining Order,
ECF No. 10, IS DENIED WITHOUT PREJUDICE; and it is further
ORDERED
that the Clerk of the Court shall supply to Petitioner the
blank forms entitled (1) “Prisoner Civil Rights
Complaint
(DNJ-ProSe-006-ProSePrisCvRghtsCmpFrm-STANDARD-(Rev.05-2013)),
” and (2) “Affidavit of Poverty and Account
Certification (Civil Rights) ...