United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS, DISTRICT JUDGE.
reasons set forth below, the Court orders that this action be
DISMISSED without prejudice.
se litigant Kenneth White, who is incarcerated at FMC
Devens, has filed a petition for a writ of corpus under 28
U.S.C. § 2241 [ECF #1] in which he alleges that has
wrongfully been denied use of TRULINKS, which is an
electronic messaging program offered by the Federal Bureau of
Prisons (“BOP”). White wants to use TRULINKS to
communicate with family members, his fiancé, and his
attorney. He contends that his exclusion from this program
violates his rights under the First and Fifth amendments to
the United States Constitution. In his memorandum in support
of his petition [ECF #2], he states that he is bringing this
action under Bivens v. Six Unknown Federal Narcotics
Agents, 403 U.S. 388 (1971), and the Administrative
Procedures Act to challenge the BOP's Program Statement
governing TRULINKS. White names FMC Devens Warden Spaulding
and the BOP as respondents. He asks that the Court order that
he be allowed to participate in the TRULINKS program.
did not pay a filing fee or seek leave to proceed in
forma pauperis. The petition has not been served pending
the Court's preliminary review of the pleading.
See 28 U.S.C. § 2243 (providing that, if
“it appears from the application [for a writ of habeas
corpus] that the applicant . . . is not entitled [to the
writ], ” the district court is not required to serve
the petition on the respondent).
White Fails to State a Basis for Habeas Relief
corpus review is available under 28 U.S.C. § 2241 if a
person is “in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3) (emphasis added). “[T]he
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973). “Challenges to the validity of any
confinement or to particulars affecting its duration are the
province of habeas corpus; requests for relief turning on
circumstances of confinement may be presented in a
[non-habeas action].” Muhammad v. Close, 540
U.S. 749, 750 (2004) (per curiam).
White does not challenge the validity of his conviction,
sentence, the calculation of his release date, or any other
matter concerning the duration of his confinement. He
challenges the legality of the conditions of his confinement.
A claim concerning a condition of confinement which does not
directly affect the duration of government custody may only
be pursued through a non-habeas action. See, e.g.,
Robinson v. Sherrod, 631 F.3d 839, 840-41 (7th Cir.
2011); Rael v. Williams, 223 F.3d 1153, 1154-55
(10th Cir. 2000); Martin v. Overton, 391 F.3d 710,
714 (6th Cir. 2004); Graham v. Sabol, 734 F.Supp.
194, 204 (D. Mass. 2010); Sanchez v. Sabol, 539
F.Supp.2d 455, 458-59 (D. Mass. 2008).
The Court Will Not Convert the Petition to a Civil
difference between habeas and non-habeas actions goes beyond
mere labels, making it prudent to dismiss this action without
prejudice rather than converting it to a non-habeas
prisoners, one notable difference is the filing fee. The
filing fee for a habeas petition is $5.00, while the filing
fee for a non-habeas action is $400 (which includes a $50
administrative fee). Where a prisoner is granted indigent
status, often referred to as “in forma
pauperis” status, the filing fee is not completely
waived. Instead, the $50 administrative fee is waived and the
prisoner is allowed to proceed without prepayment of
the remaining $350 of the filing fee. He is still required to
pay the $350 filing fee, albeit over time and generally in
small increments. See 28 U.S.C. § 1915(b). His
obligation to complete payment of the fee continues
regardless of when the action is dismissed. Further, a
prisoner who has incurred three “strikes”-the
dismissal of three non-habeas civil actions on the ground
that they were frivolous, malicious, or failed to state a
claim upon which relief may be granted-cannot proceed in
forma pauperis in subsequent non-habeas civil actions
unless he is “under imminent danger of serious physical
injury.” 28 U.S.C. § 1915(e)(2).
petitions and civil complaints are served in different
manners. A habeas petition is served by the Clerk of the
Court. In a non-habeas civil action, the plaintiff bears the
burden of serving the summons and complaint upon the
defendant in accordance with Rule 4 of the Federal Rules of
Civil Procedure. Although the United States Marshals Service
is required to complete service for plaintiffs who are
permitted to proceed in forma pauperis, the
plaintiff must still provide the USMS with all papers to be
served and instructions for service.
addition, a habeas petition is brought against the immediate
custodian of the petitioner, whilst non-habeas civil claims
are asserted against parties who are liable for the
complained-of injuries. The nature of the cause of action
asserted by a plaintiff determines who may correctly be named
as a defendant. For example, under the doctrine enunciated in
Bivens v. Six Unknown Named Agents, 403 U.S. 388
(1971), a litigant may bring “constitutional claims
against federal officials, in their individual capacities,
for actions taken under color of federal law.”
McCloskey v. Mueller, 446 F.3d 262, 271 (1st Cir.
2006) (emphasis omitted). However, Bivens liability
may only be premised on the defendant's direct
involvement in the alleged deprivation of constitutional
rights--“respondeat superior is not a viable theory of
Bivens liability.” Ruiz Rivera v.
Riley, 209 F.3 24, 28 (1st Cir. 2000). Further, a
Bivens claim cannot be asserted against the United
States, an agency of the United States, or a federal employee
acting in his official ...