FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 31, 2014
Elisabeth A. Shumaker Clerk of Court
ADRIAN M. REQUENA,
Petitioner - Appellant, No. 13-3312 v. (D.C. No. 5:13-CV-03186-SAC) (D. Kan.) RAY ROBERTS; DEREK SCHMIDT, Kansas Attorney General,
Respondents - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Adrian Requena, a state prisoner acting pro se, moved for habeas relief in federal
district court under 28 U.S.C. § 2254. The district court, construing his petition as a
request for relief under 28 U.S.C. § 2241, dismissed for failure to exhaust. Mr. Requena
* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. has filed a brief combining a request for a Certificate of Appealability (“COA”) and for
relief on the merits.
Because Mr. Requena’s petition challenges prison policy limiting his access to the
state courts and certain procedures affecting the conditions of his confinement rather than
the “fact or duration of [his] confinement,” McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 812 (10th Cir. 1997), it is properly characterized as a civil rights action and does not
require a COA. See 28 U.S.C. § 2253(c)(1)(A) (COA required to appeal a “final order in
a habeas corpus proceeding in which the detention complained of arises out of process
issued by a State court” (emphasis added)). We remand for the district court to determine
whether he has stated a claim under 42 U.S.C. § 1983.
I. BACKGROUND
While incarcerated in Kansas state prison, Mr. Requena submitted several poems
to the prison librarian for proofreading. Because the librarian believed some of these
poems were inappropriately directed at her, she reported Mr. Requena to her supervisors.
After a hearing at which Mr. Requena alleges he was unable to present documentary
evidence in his favor, the Kansas Department of Corrections (“KDC”) disciplined him for
developing an undue familiarity with a correctional staff member in violation of Kan.
Admin. Regs. § 44-12-328.1 He received a sentence of 30 days “disciplinary
1 Under § 44-12-328(a), “[n]o inmate shall solicit, encourage, establish, or participate in any type of personal relationship with any staff member . . . in charge of the Continued . . . -2- segregation,” 60 days “restriction,” a 20-dollar fine, and a “loss of level II property.”
ROA at 3, 31-32.
Mr. Requena sought relief in Kansas state court, but because prison policy
prevented access to his forced savings account to pay for photocopying, he failed to
submit the requisite number of briefs to either the Kansas Court of Appeals (“KCOA”) or
the Kansas Supreme Court. Accordingly, both state courts refused to consider his appeal.
Mr. Requena next filed a federal habeas petition under 28 U.S.C. § 2254 in the United
States District Court for the District of Kansas, alleging the prison restrictions on
photocopying hindered his access to the state courts and the disciplinary proceeding
violated his due process rights under the Fourteenth Amendment because he was not
permitted to present documentary evidence.2 The district court recast Mr. Requena’s
petition under 28 U.S.C. § 2241 “[b]ecause [it] challenges an administrative disciplinary
proceeding.” ROA at 113. The district court then dismissed for failure to exhaust.
Although the district court granted Mr. Requena’s motion to proceed in forma pauperis
(“ifp”) on appeal, it did not grant a COA. See ROA at 126-28, 137; 28 U.S.C.
§ 2253(c)(1)(A). Mr. Requena now requests a COA and relief on the merits.
inmate.” The regulation defines a “personal relationship” as “any relationship involving unnecessary familiarity by the inmate toward any such individual.” Id. 2 Mr. Requena’s petition included two other grounds for relief, but he has not addressed them in his brief to this court.
-3- II. DISCUSSION
A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than
its validity. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). A proper
§ 2241 petition challenges “‘the fact or duration of a prisoner’s confinement and seeks
the remedy of immediate release or a shortened period of confinement. In contrast, a
civil rights action . . . attacks the conditions of the prisoner’s confinement and requests
monetary compensation for such conditions.’” McIntosh, 115 F.3d at 812 (omission in
original) (quoting Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993)).
Mr. Requena’s claim regarding photocopying and access to the Kansas state courts
is not cognizable under § 2241 because it does not challenge the fact or duration of his
confinement. In addition, although some challenges to prison disciplinary proceedings
are properly brought under § 2241, see McIntosh, 115 F.3d at 812, others are not. Under
prevailing Tenth Circuit law, “the types of claims cognizable under § 2241 are those in
which an individual seeks either immediate release from, or a shortened period of,
physical imprisonment, i.e., placement on parole or in a parole-like custodial setting, or
immediate release from, or a shortened period of, custody altogether.” Palma-Salazar v.
Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012); see also Boyce v. Ashcroft, 251 F.3d
911, 914 (“Generally, because they contest the fact or duration of custody, prisoners who
want to challenge their convictions, sentences or administrative actions which revoke
good-time credits, or who want to invoke other sentence-shortening procedures, must
petition for a writ of habeas corpus.”), vacated as moot, 268 F.3d 953 (10th Cir. 2001); -4- United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (“Although Boyce was
vacated as moot on rehearing, we are persuaded by its reasoning.”). At the same time,
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT March 31, 2014
Elisabeth A. Shumaker Clerk of Court
ADRIAN M. REQUENA,
Petitioner - Appellant, No. 13-3312 v. (D.C. No. 5:13-CV-03186-SAC) (D. Kan.) RAY ROBERTS; DEREK SCHMIDT, Kansas Attorney General,
Respondents - Appellees.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
Adrian Requena, a state prisoner acting pro se, moved for habeas relief in federal
district court under 28 U.S.C. § 2254. The district court, construing his petition as a
request for relief under 28 U.S.C. § 2241, dismissed for failure to exhaust. Mr. Requena
* After examining Appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. has filed a brief combining a request for a Certificate of Appealability (“COA”) and for
relief on the merits.
Because Mr. Requena’s petition challenges prison policy limiting his access to the
state courts and certain procedures affecting the conditions of his confinement rather than
the “fact or duration of [his] confinement,” McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 812 (10th Cir. 1997), it is properly characterized as a civil rights action and does not
require a COA. See 28 U.S.C. § 2253(c)(1)(A) (COA required to appeal a “final order in
a habeas corpus proceeding in which the detention complained of arises out of process
issued by a State court” (emphasis added)). We remand for the district court to determine
whether he has stated a claim under 42 U.S.C. § 1983.
I. BACKGROUND
While incarcerated in Kansas state prison, Mr. Requena submitted several poems
to the prison librarian for proofreading. Because the librarian believed some of these
poems were inappropriately directed at her, she reported Mr. Requena to her supervisors.
After a hearing at which Mr. Requena alleges he was unable to present documentary
evidence in his favor, the Kansas Department of Corrections (“KDC”) disciplined him for
developing an undue familiarity with a correctional staff member in violation of Kan.
Admin. Regs. § 44-12-328.1 He received a sentence of 30 days “disciplinary
1 Under § 44-12-328(a), “[n]o inmate shall solicit, encourage, establish, or participate in any type of personal relationship with any staff member . . . in charge of the Continued . . . -2- segregation,” 60 days “restriction,” a 20-dollar fine, and a “loss of level II property.”
ROA at 3, 31-32.
Mr. Requena sought relief in Kansas state court, but because prison policy
prevented access to his forced savings account to pay for photocopying, he failed to
submit the requisite number of briefs to either the Kansas Court of Appeals (“KCOA”) or
the Kansas Supreme Court. Accordingly, both state courts refused to consider his appeal.
Mr. Requena next filed a federal habeas petition under 28 U.S.C. § 2254 in the United
States District Court for the District of Kansas, alleging the prison restrictions on
photocopying hindered his access to the state courts and the disciplinary proceeding
violated his due process rights under the Fourteenth Amendment because he was not
permitted to present documentary evidence.2 The district court recast Mr. Requena’s
petition under 28 U.S.C. § 2241 “[b]ecause [it] challenges an administrative disciplinary
proceeding.” ROA at 113. The district court then dismissed for failure to exhaust.
Although the district court granted Mr. Requena’s motion to proceed in forma pauperis
(“ifp”) on appeal, it did not grant a COA. See ROA at 126-28, 137; 28 U.S.C.
§ 2253(c)(1)(A). Mr. Requena now requests a COA and relief on the merits.
inmate.” The regulation defines a “personal relationship” as “any relationship involving unnecessary familiarity by the inmate toward any such individual.” Id. 2 Mr. Requena’s petition included two other grounds for relief, but he has not addressed them in his brief to this court.
-3- II. DISCUSSION
A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than
its validity. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). A proper
§ 2241 petition challenges “‘the fact or duration of a prisoner’s confinement and seeks
the remedy of immediate release or a shortened period of confinement. In contrast, a
civil rights action . . . attacks the conditions of the prisoner’s confinement and requests
monetary compensation for such conditions.’” McIntosh, 115 F.3d at 812 (omission in
original) (quoting Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993)).
Mr. Requena’s claim regarding photocopying and access to the Kansas state courts
is not cognizable under § 2241 because it does not challenge the fact or duration of his
confinement. In addition, although some challenges to prison disciplinary proceedings
are properly brought under § 2241, see McIntosh, 115 F.3d at 812, others are not. Under
prevailing Tenth Circuit law, “the types of claims cognizable under § 2241 are those in
which an individual seeks either immediate release from, or a shortened period of,
physical imprisonment, i.e., placement on parole or in a parole-like custodial setting, or
immediate release from, or a shortened period of, custody altogether.” Palma-Salazar v.
Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012); see also Boyce v. Ashcroft, 251 F.3d
911, 914 (“Generally, because they contest the fact or duration of custody, prisoners who
want to challenge their convictions, sentences or administrative actions which revoke
good-time credits, or who want to invoke other sentence-shortening procedures, must
petition for a writ of habeas corpus.”), vacated as moot, 268 F.3d 953 (10th Cir. 2001); -4- United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (“Although Boyce was
vacated as moot on rehearing, we are persuaded by its reasoning.”). At the same time,
“[p]risoners who raise constitutional challenges to other prison decisions—including
transfers to administrative segregation, exclusion from prison programs, or suspension of
privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens.”
Boyce, 251 F.3d at 914.
Mr. Requena’s petition falls into the latter category. The disciplinary proceeding,
which imposed a sentence of 30 days “disciplinary segregation,” 60 days “restriction,” a
20-dollar fine, and a “loss of level II property,” ROA at 3, 31-32, did not reduce Mr.
Requena’s good-time credits or otherwise change the duration of his sentence. His
petition, which alleges the denial of an opportunity to submit documentary evidence at
the hearing that led to his discipline, challenges the process affecting only the conditions
of his confinement. It is therefore properly characterized as a 42 U.S.C. § 1983 claim.
See Palma-Salazar, 677 F.3d at 1035 (“‘It is well-settled law that prisoners who wish to
challenge only the conditions of their confinement . . . must do so through civil rights
lawsuits . . . not through federal habeas proceedings.’” (omissions in original) (quoting
Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011))); Wolff v. McDonnell, 418
U.S. 539, 563-67 (1974) (considering, in § 1983 suit, the minimum procedural due
process standards that prisons must satisfy before imposing disciplinary sanctions); see
also Castro v. United States, 540 U.S. 375, 381-82 (2003) (“Federal courts sometimes
will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the -5- motion in order to place it within a different legal category. They may do so . . . to create
a better correspondence between the substance of a pro se motion’s claim and its
underlying legal basis.” (citations omitted)).
III. CONCLUSION
Because § 1983 “contains no judicially imposed exhaustion requirement,”
Edwards v. Balisok, 520 U.S. 641, 649 (1997), the district court mistakenly relied upon
Mr. Requena’s failure to exhaust in dismissing his petition. We remand to the district
court to determine whether Mr. Requena has adequately alleged any § 1983 claims and, if
-6- he has not, whether he should be granted leave to amend.3
ENTERED FOR THE COURT
Scott M. Matheson, Jr. Circuit Judge
3 In doing so, we are not unmindful of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), and Edwards v. Balisok, 520 U.S. 641, 646 (1997), which bar civil rights actions that, if successful, would necessarily imply the invalidity of an underlying conviction or the deprivation of good-time credits. But neither case appears to bar relief under § 1983 where, as here, a prisoner challenges the procedures used to assess certain disciplinary sanctions (other than a loss of good-time credits) that have no effect on the duration of his confinement. See Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (“Heck’s requirement to resort to state litigation and federal habeas before § 1983 is not, however, implicated by a prisoner’s challenge that threatens no consequence for his conviction or the duration of his sentence.”); see also id. at 751 n.1 (“The assumption is that the incarceration that matters under Heck is the incarceration ordered by the original judgment of conviction, not special disciplinary confinement for infraction of prison rules.”); Wilkinson v. Dotson, 544 U.S. 74, 81-84 (2005). Moreover, as we have previously stated, “Muhammad left open the possibility that Heck might not apply when a habeas remedy is unavailable.” Harrison v. Morton, 490 F. App’x 988, 992 (10th Cir. 2012) (unpublished); see also Muhammad, 540 U.S. at 752 n.2 (observing that “[m]embers of the Court have expressed the view that unavailability of habeas for other reasons may also dispense with the Heck requirement,” but declining to “settle the issue”). In any event, we leave these matters for the district court to resolve in the first instance.
-7-