United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
the Court is pro se petitioner Charles Alpine's petition
for writ of habeas corpus pursuant to 28 U.S.C.
§2241(c)(2). Petition, ECF No. 1. Pursuant to Rule 4 of
the Rules Governing Section 2254 Cases in the United States
District Courts, as applicable to a 28 U.S.C. §2241
petition under Rule 1(b), "it plainly appears from the
petition.. .that the petitioner is not entitled to
relief," and therefore, the Petition is hereby
DENIED and DISMISSED without prejudice. See
McFarland v. Scott, 512 U.S. 849, 856 (1994)
("Federal courts are authorized to dismiss summarily any
habeas petition that appears legally insufficient on its
face."). Alpine is a state prisoner currently
incarcerated in a state prison in Texas. As Alpine is well
aware, the Court is without jurisdiction because Alpine is
not confined in the District of Massachusetts. See Rumsfeld
v. Padilla, 542 U.S. 426, 443 (2004) (holding that
habeas corpus jurisdiction lies in district of confinement);
28 U.S.C. §2241 (a) ("Writs of habeas corpus may be
granted by...the district court... within
[its]...jurisdiction"). Because the Court is without
jurisdiction over the Petition, the action must be dismissed
extent that the Petition might be construed as a complaint
for relief under 42 U.S.C §1983, Alpine fares no better.
As best the Court can discern, and without addressing the
merits, the action is filed in the wrong venue because the
petition seeks damages for actions that occurred in a Texas
prison, and none of the parties are alleged to reside in the
District of Massachusetts. 28 U.S.C. §1391(b). Instead,
it appears the United States District Court for the Northern
District of Texas is an appropriate venue. Pursuant to 28
U.S.C. § 1406(a), the Court must dismiss, or if in the
interest of justice transfer, an action filed in the wrong
construed as a habeas corpus petition over which this Court
has no jurisdiction or an improperly venued civil action for
damages, the action shall be dismissed rather than
transferred. Pursuant to 28 U.S.C. §1631 (habeas corpus)
and 28 U.S.C. §1406(a) (improperly venued civil action),
it is not in the interest of justice to transfer, rather than
dismiss, the action. First, Alpine was aware of the habeas
corpus jurisdictional defect when he filed this petition, and
Alpine seeks only monetary damages-relief that while
available in a civil action is unavailable in habeas corpus
proceedings. Preiser v. Rodriguez, 411 U.S. 475,
494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439 (1973) ("In the
case of a damages claim, habeas corpus is not an appropriate
or available federal remedy."). Second, to the extent
this action is construed as a civil action, Alpine seeks to
proceed in forma pauperis when he is apparently
ineligible to so-proceed. Under the so-called
"three-strikes" rule, Alpine may not proceed in
forma pauperis if he, "on three or more prior occasions,
while incarcerated, ..., brought an action.. .in a court of
the United States that was dismissed on the grounds that it
is frivolous, malicious or fails to state a claim upon which
relief... [can].. .be granted, unless the prisoner is under
imminent danger of serious physical injury." 28 U.S.C.
§1915(g). Here, the potential transferee court, the
United States District Court for the Northern District of
Texas, Wichita Falls Division, has found Alpine to be a
"three-strikes" litigant under 28 U.S.C. §
1915(g). Alpine v. Williams, No. 7:08-CV-114-O (N.D.
Tex. July 23, 2008), ECF No. 4; see also, Alpine v.
Sessions, No. 3:18-CV-655-C-BH, 2018 WL 1661617, at *1
(N.D. Tex. Mar. 21, 2018). report and recommendation
adopted. No. 3:18-CV-655-C-BH, 2018 WL 1660670 (N.D.
Tex. Apr. 5, 2018) (different division). There is nothing in
the Petition that indicates Alpine is in imminent danger of
serious physical harm. It is therefore not in the interest of
justice to transfer an action.
Clerk is directed to enter an order of dismissal of this
 This is Alpine's second 28 U.S.C.
§2241 petition brought in this district. The earlier
petition, Alpine v. Smith, C.A. 19-10208-NMG, was
dismissed on April 2, 2019 without prejudice for, among other
things, lack of jurisdiction. Alpine v. Smith, C.A.
19-10208-NMG, April 2, 2019 Electronic Order, ECF No. 9. The
Court notes that Alpine has repeatedly had his §2241
petitions dismissed on this ground. See Alpine v.
Smith, No. 1:19-CV-00174-NT, 2019WL 1867927, at *2 (D.
Me. Apr. 25, 2019) (report and recommendation collecting
cases and recommending dismissal of petition).
 See Petition, 4 ("I want the U.S.
[D]ist. [C]t. in Boston Massachusetts to mail C. Al-Pine
[a]n application for [in] ...