HLD-105 (February 28, 2011) PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4397

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JAMES MURRAY, a/k/a James Hines,

Appellant

v.

B.A. BLEDSOE; D. YOUNG, ASSOCIATE WARDEN;

MR. BREWER, UNIT MANAGER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3:10-cv-02309)

District Judge: Honorable Richard P. Conaboy

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Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 28, 2011

Before: MCKEE, Chief Judge, ALDISERT

and WEIS Circuit Judges.

(Filed: June 10, 2011)

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OPINION

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PER CURIAM.

In November 2010, James Murray, a federal prisoner 

currently housed in the Special Management Unit (“SMU”) at 

the United States Penitentiary in Lewisburg, Pennsylvania, 

filed in the District Court a pro se petition for judicial review 

of a decision of the Federal Bureau of Prisons (“BOP”). 

Murray‟s petition claimed that he has a constitutional right 

under the Ninth Amendment to choose his SMU cellmate. 

Before filing in the District Court, Murray had sought an 

administrative remedy from the BOP, alleging a right to 

choose his cellmate and requesting that the BOP allow him to 

do so. The BOP found Murray had no such right and denied 

his request. In his petition for judicial review, Murray 

requested that the District Court set aside the BOP‟s 
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decision.1 The District Court denied Murray‟s petition as 

meritless. Murray now appeals from the District Court‟s 

judgment; requests that we take judicial notice of certain case 

law, pleadings, and other documents, and appoint counsel on 

his behalf; and moves to amend deficient judicial statements.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 

may affirm the District Court‟s judgment on any basis 

supported by the record. See Tourscher v. McCullough, 184 

F.3d 236, 240 (3d Cir. 1999). Because this appeal does not 

present a substantial question, we will summarily affirm the 

 

1 Murray styled his petition as a challenge to the 

BOP‟s decision under the Administrative Procedure Act 

(“APA”). BOP decisions about where to house inmates, 

however, are exempt from challenge under the APA. See 18 

U.S.C. § 3625 (explaining that the APA‟s provisions for 

judicial review of administrative agency decisions, at 5

U.S.C. §§ 701-06, do not apply to decisions made under 18 

U.S.C. §§ 3621-26, including BOP decisions about where to 

house inmates governed by 18 U.S.C. § 3621(b)). Perhaps 

with this in mind, Murray‟s filing was docketed in the District 

Court as a habeas petition. The filing was probably not a true 

habeas petition because it did not challenge the “very fact or 

duration” of Murray‟s imprisonment, see Preiser v. 

Rodriguez, 411 U.S. 475, 500 (1973), and would probably be 

most accurately classified as an action under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 

U.S. 388 (1971). How the petition is classified is not of great 

importance, however, because the District Court properly 

denied Murray‟s claim as lacking in merit.
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District Court‟s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. 

I.O.P. 10.6.

Murray argues that the Ninth Amendment “protects 

rights that are „fundamental[,]‟” such as “rights to marry; to 

raise a family; the right to an abortion[,]” and the right to 

choose one‟s cellmate. Although there is some authority for 

the proposition that the Ninth Amendment is a source of 

fundamental rights, see Griswold v. Connecticut, 381 U.S. 

479, 493 (1965) (Goldberg, J., concurring), no court of which 

we are aware has held that the Ninth Amendment establishes 

a right to choose one‟s cellmate. To the contrary, those courts 

confronted with the question of whether inmates have a 

constitutional right to choose a cellmate have held that no 

such right exists. See Harris v. Greer, 750 F.2d 617, 618 (7th 

Cir. 1984); see also Cole v. Benson, 760 F.2d 226, 227 (8th 

Cir. 1985) (per curiam) (inmate has no Eighth Amendment 

right to be placed in a particular cell). Accordingly, the 

District Court properly denied this claim.

In his brief in opposition to summary action, Murray 

advises that, since the time he filed his petition in the District 

Court, he has been placed with a desirable cellmate. He still 

wishes to proceed with the appeal, however, in order to 

challenge the broader BOP policy disallowing prisoners to 

choose their cellmates. Murray did not raise this broader 

challenge in the District Court; therefore, it is waived on 

appeal.

Because this appeal does not present a substantial 

question, we will summarily affirm the District Court‟s 

judgment. Murray‟s request for appointment of counsel, 
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request to take judicial notice, and motion to amend deficient 

judicial statements will be denied.