HLD

- 105 (February 28, 2011) PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10

- 4397

___________

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

____________________________________

Submitted for Possible Summar y Action

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

February 28, 2011

Before: MC KEE, Chief Judge , ALDISERT

and WEIS Circuit Judges

.

(F iled : June 10, 2011 )

_________2 OPINION

_________

PER CURIAM.

In November 2010, James Murray, a federal prisoner

currentl y 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 claim ed 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 a llow 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‟s3 decision. 1 The District Court denied Murray‟s petition as

meritless. Mur ray 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 d eficient judicial statements.

We have jurisdiction pursua nt 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 , 18 4 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 Administrati ve Procedure Act (“APA”). BOP de cisions 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 mad e 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 habe as petition. T he filing was probably not a true
ha beas petition because it did not challenge the “very fact or

dura tion” of Murray‟s imprisonment, s ee Preiser v. Rodriguez , 4 11 U.S. 475, 500 (1973), and would probably be most accurately classified as an action under Bivens v. Six Unknown Named Agents of F ed. 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.4 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., concurri ng), 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 th at 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 C ourt 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, howe ver, 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 pr esent a substantial question, we will summarily affirm the District Court‟s judgment. Murray‟s request for appointment of counsel,5 request to take judicial notice, and motion to amend deficient judicial statements will be denied.