United States District Court, D. North Dakota, Southwestern Division
CHARLES S. MILLER, Jr., Magistrate Judge.
Petitioner Michael Disch ("Disch") is an inmate at the North Dakota State Penitentiary ("NDSP"). He initiated the above-entitled action on June 30, 2015, with the submission of an application to proceed in forma pauperis and what is styled as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He asserts in relevant part the following:
5. This petitioner was sanctioned to 3 days R.T.Q. "restriction to quarters". For violation of disciplinary code 107 "Loaning or borrowing property of another. I was given 3 days of R.T.Q. for violation of code 103 "False testimony to a staff member". I was given 3 days of R.T.Q. for violation of code 110 "Attendance in an unauthorized area". About 1 week latter I was given 3 more days of R.T.Q. for violation of code 106 "Alteration of state property" for covering my cell vent.
First I was not given the required 24 hour notice of charges agenst me. Pursuant to the ruling in the case of Wolff v. Mcdonnell 418 U.S. 539 (1974) The court held that "for the minimum requirements of procedural due-process to be satisfied in the state disciplinary hearings, prisoners must be provided with advanced written notice to inform them of the charges and enable them to marshal the facts and prepare a defense, and at least no less then 24 hours should be allowed to the inmate to prepare for the appearance at the disciplinary hearing." This was not done in this petitioners case, nor is done at all at this prison for any inmate. When I was sanctioned to the R.T.Q. I was not given the required 24 hour notice before I was to have the disciplinary hearing. All that was done was I was called into a room with a staff member and the report was read to me and I was given the sanctions. Myself or other inmates are not allowed to present documentary evidence in the hearing. Myself or other inmates are not allowed to call witnesses, nor was myself or other inmates given a written statement by the fact finders as to the evidence relied on and the reason for any disciplinary action. This is a violation of my due-process right under the United States Constitution.
6. When I or any other Inmate is given a sanction for a level 1 or 2 incident report pursuant to the inmate handbook page 12 and 15 is states on page 12 "Level 1 sanctions may not be appealed". On page 15 of the inmate handbook "Level 2 sanctions may not be appealed". When I was given the sanctions I was not able to file an appeal of the sanctions given to me. The fourteenth amendment states that a state may not deprive any person of life, liberty, or property, without due-process of law. The courts have ruled many times than an inmate does not shed all federal constitutional rights at the prison gate. The courts have also ruled that any time that an inmate is given a punitive disciplinary saction is given to the an inmate that inmate has the constitutional right to file an appeal in that case. The North department of corrections takes away the inmates federal protected rights by violating the United States constitution. Inmates get no due-process rights at the hearings in this prison.
7. After an inmate has done his disciplinary sanctions the inmate can be placed in administrative segregation. In the handbook for segregation on page 4 "An inmate can be referred to A.S. by the wardon or any staff member". Next the inmate has a hearing (the inmate can not be at this hearing). The A.S. committee will determine if placement is warranted. when I was put in A.S. I was not allowed to be at the hearing I was not allowed to present documentary evidence to call witnesses or to be heard on why I should not be placed in A.S. My due process rights were violated.
Pursuant to the inmate handbook I do have the right to appeal the placement of myself in A.S. The way this is set up a staff member for any reason (he just might not like you) and you get placed in A.S. and the inmate can not appeal the placement This prison acts like the due-process amendment does not apply to them the amount of times that they violate inmates rights.
8. Inmates that are on R.T.Q. or that are placed in (per hearing detention status) get no out of cell exercise. Inmates on R.T.Q. only get to go to eat meals and shower, This prison says that this counts as out of cell recreation. the prison must feed and let us take a shower any way, Inmates as my self when I was placed in administrative segregation (per-hearing states) myself and other inmates do not get any out of coll exercise there is no set time limit on how long a inmate can be with no out of cell exercise. The 28-C.F.R. section 540 states "After an inmate is in segregation for 24 hours he is to get his 5 hours of out of cell recreation each week. This prison does not provide this to inmates. See the case of Delancy v. Detella, 256 F.3d 679 (7th cir. 2001) held that "Exercise is one of the basic human needs and that prisons officials must provide for under the eighth amendment." Also see the case of Pierce v. county of orange 526 F.3d 1190 (9th cir 2008). stating that "prison officials must provide at least 5 hours of out of cell exercise each week myself nor other inmates on R.T.Q. or per hearing detention status get his federal protected constitutional right.
(Docket No. 2) (errors in original). He seeks monetary damages for each alleged violation of his rights, a court-ordered change in the NDSP's disciplinary and recreational policies, and his immediate release from administrative segregation.
"Federal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983." Flores v. Jacquez, No C-2773, 2010 WL 4008788, at * 1 (N.D. Cal. Oct. 5, 2010). "Challenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus." Id . (quoting Hill v. McDonough, 547 U.S. 573, 579 (2006)); Preiser v. Rodriquez, 411 U.S. 475 (1973). "An inmate's challenge to the circumstances of his confinement, however, may be brought under § 1983." Id . (citing Docken v. Chase, 393 F.3d 1024, 1028 (9th Cir.2004)).
The avenue of relief chosen by Disch is a petition for habeas corpus. However, he is not contesting the fact or duration of his confinement. Rather, he is taking issue with the procedures used to restrict him to quarters, the procedures that apparently culminated in his placement in administrative segregation, and the alleged lack of recreational opportunities afforded to inmates in administrative segregation. Such claims are not generally cognizable in a habeas corpus petition. See Pettersen v. Clark, 82 F.3d 421 (8th Cir. 1996) (concluding that complaints regarding conditions of confinement and due process violations in connection with placement in segregation were not cognizable in a habeas petition); see also Flores v. Jacquez, No C-2773, 2010 WL 4008788, at * 1; Montgomery v. Director, No. 1:04-CV-256, 2006 WL 1529550, at *1 (E.D. Tex. June 1, 2006) (Report and Recommendation) ("As a petition for writ of habeas corpus may not be used to challenge the conditions of an inmate's confinement, petitioner's complaints concerning his placement in administrative segregation is not cognizable in this proceeding."); Dodd v. Smith, No. 3:CV 05 1802, 2005 WL 2234642, at *2 (M.D. Pa. Sept. 14, 2015) (concluding that an inmate's challenge to the conditions of his confinement as well as the sanctions imposed in the disciplinary proceeding-sanctions which did not result in the forfeiture of good time credits and which did not extend the length of his incarceration were not cognizable in a habeas action); cf. Smalley v. White, 76 F.3d 382 (8th Cir. 1996) (addressing an inmates challenge to a placement in administrative segregation in the context of a § 1983 action); but see Kirkland v. Jones, No. 2015 WL 2372778, at * 2 (N.D. Fla. May 18, 2015) ("[I]t is proper for a district court to treat a petition for release from administrative segregation as a petition for a writ of habeas corpus because such release falls into the category of fact or duration of... physical imprisonment.'" (internal quotations omitted)). This does not end the court's analysis, however.
The court must construe Disch's pro se petition liberally. An appropriate construction would be to treat this matter as a civil rights action. See Spencer v. Haynes, 774 F.3d 467, 470 (8th Cir. 2014). However, the court will not do so absent Disch's consent on account of the fact that "a habeas corpus action and a prisoner civil rights suit differ in a variety of respects - such as the proper defendant, filing fees, the means of collecting them, and restrictions on future filings - that may make recharacterization impossible or, if possible, disadvantageous to the prisoner compared to a dismissal without prejudice of his petition for habeas corpus." Robinson v. Sherrod, 631 ...