Michael Crooker v. Robert Werlinger

391 F. App'x 126

• Court: Court of Appeals for the Third Circuit
• Decided: August 19, 2010
• Docket: 10-1899
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Michael Crooker, a federal prisoner proceeding pro se, appeals the District Court judgment denying the petition he filed under 28 U.S.C. § 2241. In his petition, Crooker alleged that, during a 35-day confinement in the Special Housing Unit, he was denied: the use of a comb; dental floss and dental picks; access to a typewriter; permission to purchase more than the regular limit of postage stamps; and permission to possess one cubic foot of legal flies. Crooker sought unspecified declaratory and injunctive relief.

The District Court denied the petition, reasoning that Crooker was a litigant subject to the “three-strike” rule of § 1915(g), and that he styled his complaint as a § 2241 petition so that he could avoid the filing fee applicable to suits under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 1

We have jurisdiction pursuant to 28 U.S.C. § 1291. Because Crooker is proceeding in forma pauperis, we must dismiss the appeal if it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see also 28 U.S.C. § 1915(e)(2). We exercise plenary review over the District Court’s legal determinations and apply a clearly erroneous standard to its factual findings. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir.2002) (per curiam).

Crooker’s petition does not challenge the fact or duration of his imprisonment, which are the essence of habeas. See Preiser v. Rodriguez, 411 U.S. 475, 484, 487, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). As we have explained, “when the challenge is to a condition of confinement such that a finding in plaintiffs 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). Nor did he challenge the manner in which his sentence was executed. Cf. Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 243 (3d Cir.2005) (indicating that while certain types of transfers may give rise to habeas claims, “a garden variety prison transfer” would not). Where the defendants are federal actors, the plaintiff should seek relief under Bivens. See Williams v. Hill, 74 F.3d 1339, 1339-41 (D.C.Cir.1996).

Accordingly, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2).

1 . Bivens creates a cause of action which is the federal equivalent of the 42 U.S.C. § 1983 action against state actors, and lies where the defendant has violated the plaintiff’s rights under color of federal law. See Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.2001).