IN THE UNITED STATES DISTRICT COURT

FOR TH E MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH RAYMOND :

McKETTRICK, :

: Civil Action No. 4: 06-CV-543

Petitioner, :

: (Judge McClure)

v. :

: (Magistrate Judge Blewitt)

WARDEN TROY WILLIAMSON, :

:

Respondent. :

O R D E R

May 10, 2006

BACKGROUND:

On March 15, 2006, McKettrick filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. McKettrick is currently a federal prisoner

incarcerated at United States Penitentiary (USP) Lewisburg, Lewisburg,

Pennsylvania. McKettrick asserts in his petition that placement in the Special

Management Unit (SMU) at Lewisburg constitutes an “atypical and significant

hardship” that: (1) violates his liberty interests; (2) violates his rights to due

process; and (3) violates his rights because he states that there is no Bureau of

Prisons policy statement or criteria governing the SMU program. In his petition

McKettrick notes that he has already filed a Bivens action alleging these claims

which is before this court and docketed to case number 4:06-CV-329. McKettrick

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commenced that litigation on February 14, 2006.

Both of McKettrick’s cases were initially referred to United States Magistrate

Judge Thomas M. Blewitt. On March 22, 2006, Magistrate Judge Blewitt issued a

sixteen-page report recommending that McKettrick’s petition be construed as a

Bivens action, that to the extent the petition raises a due process claim it be

dismissed for failure to state a claim, and that to the extent it raises a First

Amendment claim the action be consolidated with McKettrick’s previous Bivens

action. The magistrate judge issued a report and recommendation on McKettrick’s

Bivens action on March 21, 2006.

McKettrick requested an extension of time to file his objections to the

magistrate judge’s report and recommendations in both cases, which we granted. 

On May 9, 2006, McKettrick filed objections to the magistrate judge’s report

docketed to case number 06-CV-329, which is McKettrick’s Bivens action. In

those objections, McKettrick, who is pro se, erroneously asserts that his actions

have been consolidated. This is not the case, as the magistrate has only

recommended that the cases be consolidated. Nevertheless, we will treat

McKettrick’s filings as objections to both the magistrate judge’s report filed at case

numbers 06-CV-329 and 06-CV-543. For the following reasons we will adopt the

magistrate judge’s report in part and will dismiss McKettrick’s petition under 28

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U.S.C. § 2241.

DISCUSSION:

I. RELEVANT LEGAL STANDARD

A district court reviews de novo those portions of a magistrate judge’s

report and recommendation to which a party objects. L.R. 72.3. The court may

“accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” Id.

II. McKETTRICK’S PETITION SHOULD NOT BE CONSTRUED AS A

CIVIL ACTION AND SHOULD BE DISMISSED BECAUSE IT

CHALLENGES THE CONDITIONS OF HIS CONFINEMENT WHICH

ARE PROPERLY BROUGHT IN A BIVENS ACTION

McKettrick does not challenge “the fact or duration of his physical

confinement itself, . . . [nor does he] seek[] immediate release or a speedier release

from that confinement–the heart of habeas corpus.” Preiser v. Rodriguez, 411 U.S.

475, 498 (1973). Instead, McKettrick complains of the conditions and procedures

of Lewisburg’s SMU confined housing. We agree with the magistrate judge that

petitioner’s claim could be construed as a civil rights action under Bivens

challenging the conditions of his prison life.

Nevertheless, we find that construing McKettrick’s filing as such would not

be appropriate. The filing fee for a habeas corpus petition is five dollars. The filing

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1McKettrick’s objections to the magistrate judge’s report and

recommendation contain an amended complaint relating to his Bivens action.

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fee for a civil action is now three hundred and fifty dollars. If we were to simply

construe habeas petitions as civil actions, prisoners would easily circumvent the

normal filing process for civil actions and abuse habeas corpus. We will adopt the

magistrate judge’s report in part, to the extent it is consistent with this order, and

will dismiss McKettrick’s petition under 28 U.S.C. § 2241.1

NOW, THEREFORE, IT IS HEREBY ORDERED:

1. The Report and Recommendation of United States Magistrate Judge

Thomas M. Blewitt is adopted in part. (Rec. Doc. No. 2.)

2. Kenneth Raymond McKettrick’s petition for a writ of habeas corpus

under 28 U.S.C. § 2241 is dismissed.

3. The clerk is directed to close the case file.

 s/ James F. McClure, Jr. 

James F. McClure, Jr.

United States District Judge

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