UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL AZZARA, :

:

Petitioner : No. 4:CV-10-1404

:

vs. : (Petition Filed 7/07/10)

:

DAVID J. EBBERT, : (Judge Muir)

:

Respondents :

MEMORANDUM AND ORDER

August 17, 2010

Background

Paul Azzara, an inmate presently confined in the

Allenwood Federal Correctional Institution, White Deer,

Pennsylvania, filed this pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2241. Azzara complains of issues

relating to his confinement in the Special Housing Unit (“SHU”). 

(Doc. 1, petition). A response to the petition was filed on

July 28, 2010. Although allowed the opportunity, petitioner did

not file a traverse. Thus, the petition is ripe for

disposition. For the reasons discussed below, the Court will

dismiss the petition. 

Petitioner states that he has been housed in the SHU

since June 25, 2009. Since that time he has been “suffering

from an atypical and significant hardship in relation to the

Case 4:10-cv-01404-MM-DB Document 7 Filed 08/17/10 Page 1 of 5
normal aspects of prison life due to this confinement.” (Doc.

1, petition). Specifically, he claims that he has “been denied

unfettered, indeed, even meaningful access to [his] legal

documents.” Id. Additionally, he states that he has been

“retaliated against for filing grievances about the situation.” 

Id. 

Petitioner claims that “on October 1, 2009, Discipline

Hearing Officer (“DHO”), Kevin Bittenbender ordered the

confiscation of all [plaintiff’s] property as a sanction, and in

retaliation for [his] refusing to relinquish [his] property on

September 10, 2009.” Id. 

On June 2, 2010, petitioner states that “use of force was

ordered by Lt. Brian Stahl and again all [his] legal documents

as well as required medical devices and all Jewish religious

items were confiscated by Lt. Brian Stahl in retaliation for

[petitioner] exercising constitutionally protected conduct.” 

Id. Petitioner states that “one week later on Thursday, June

10, 2010, some of [his] legal documents were returned to [him]

and [he] was placed into a double occupancy cell.” Id. 

On June 17, 2010,petitioner alleges that “DHO Kevin

Bittenbender again ordered the confiscation of all

[petitioner’s] property as a sanction for incident reports

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generated on June 3, 2010, during the use of force incident.” 

Id. 

On June 19, 2010, petitioner claims that “a small

percentage of [his] legal documents were returned to [him] by

Lieutenant S. Danner and he removed the restraints” but “to this

date, required medical items as well as Jewish religious items

have not been replaced.” Id. 

On July 7, 2010, petitioner filed the instant petition

for writ of habeas corpus seeking damages. Id. 

Discussion

It is well-settled that a habeas corpus petition may be

brought by a prisoner who seeks to challenge either the fact or

duration of his confinement in prison. Preiser v. Rodriguez,

411 U.S. 475 (1973). In the instant petition, Azzara is neither

seeking speedier nor immediate release from custody. He is also

not challenging the legality of his present incarceration. 

Rather, he seeks damages for incidents which occurred while he

has been housed in the SHU. Accordingly, “habeas corpus is not

an appropriate or available federal remedy.” See Linnen v.

Armainis, 991 F.2d 1102, 1109 (3d Cir. 1993). 

Consequently, the petition will be dismissed without

prejudice to any right Azzara may have to reassert his present

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Case 4:10-cv-01404-MM-DB Document 7 Filed 08/17/10 Page 3 of 5
claims in a properly filed civil rights complaint.1 See Wool v.

York County Prison, Civil No. 98-0138, slip op. at 2-3 (M.D. Pa.

January 30, 1998)(McClure, J.); Hewlitt v. Holland, Civil No.

96-1075, slip op. at 9 (July 2, 1997 M.D. Pa.)(Nealon,

J.)(“Because the petitioner will not be allowed to elude the

filing fee requirements of the PLRA, his claims will be

dismissed without prejudice, as they are not habeas corpus

claims, but rather claims relating to the conditions of his

confinement that should more appropriately be brought under the

Civil Rights Acts.”). An appropriate Order accompanies this

Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

1. In this regard, the Court expresses no opinion as to the

merits, if any, of any civil rights claim Azzara may file

based upon the facts asserted herein. 

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Case 4:10-cv-01404-MM-DB Document 7 Filed 08/17/10 Page 4 of 5
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

PAUL AZZARA, :

:

Petitioner : No. 4:CV-10-1404

:

vs. : (Petition Filed 7/07/10)

:

DAVID J. EBBERT, : (Judge Muir)

:

Respondents :

ORDER

August 17, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus

(Doc. 1) is DISMISSED WITHOUT PREJUDICE.

2. The Clerk of Court is directed to CLOSE

the case.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:10-cv-01404-MM-DB Document 7 Filed 08/17/10 Page 5 of 5