BLD-251 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1899

___________

MICHAEL ALAN CROOKER,

Appellant

v.

ROBERT WERLINGER, Warden, FCI Loretto

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 10-cv-00070)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

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

July 22, 2010

Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges

(Opinion filed: August 19, 2010)

_________

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
 Bivens creates a cause of action which is the federal equivalent of the 42 U.S.C. 1

§ 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).

2

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 files. 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 (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 (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

(1973). As we have explained, “when the challenge is to a condition of confinement such
3

that a finding in plaintiff’s 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).