* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10 TH C IR
. R. 36.3.

** After examining the briefs and appellate record, this panel has determined unanimously to decide this case on the b riefs without oral argument. See F ED
. R. A PP
. P. 34(f); 10 TH C IR
. R. 34.1 (G). 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 1 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HERMAN RIOS, JR.,

Petitioner-Appellant, BRETT WRIGHT, Petitioner,

v. COMMANDANT, UNITED STATES DISCIPLINARY BARRACKS,

Respondent-Appellee. No. 03-3233 (D. Kansas) (D.C. No. 0-CV-3446-RDR)

ORDER AND JUDGMENT *

Before EBEL , HENRY , and HARTZ , Circuit Judges. **
Herman Rios, Jr., appeals the district court’s orde r dismissing his pro se 28 U.S.C. § 2241 petition without prejudice to his fil ing of a civil rights complaint.-2-

We agree with the district court’s decision for sub stantially the same reasons set forth in its June 6, 2003, order and therefore affi rm its decision.

I. BACKGROUND The record indicates that in 1995, while on active duty in the United States Air Force, Mr. Rios was convicted by general court martial of the following offenses: (1) rape of a child under the age of sixt een; (2) sodomy of a child under the age of sixteen by force and without her consent ; and (3) unlawfully striking and grabbing a child under the age of sixteen on tw o occasions. He was sentenced to eighteen years’ imprisonment. When Mr. Rios began serving his sentence at the Uni ted States Disciplinary Barracks in Fort Leavenworth, Kansas, prison offici als classified him as a maximum custody inmate. Within a month, prison off icials reclassified him as a medium custody inmate, and Mr. Rios retained that c lassification for the next four
years. While incarcerated, Mr. Rios has been found guilty of several institutional offenses, including aggravated assault and maiming, as well as damaging and destroying property. These offenses resulted in hi s reclassification as a maximum custody inmate. While in maximum custody, Mr. Rios was charged and convicted of four additional offenses, the last of which occu rred on December 13, 2000.-3-

Subsequently, it appears that Mr. Rios’s behavior i mproved, and on July 9, 2001, prison officials reclassified him as a medium custo dy inmate. In his § 2241 petition, Mr. Rios asserts that priso n officials violated his due process rights by (1) classifying him as a maximum custody inmate without a hearing; (2) allowing him to remain a maximum custo dy inmate without regularly reviewing that classification; and (3) removing him from his prison job without a hearing. Mr. Rios also alleges that (4) prison off icials violated his Eighth Amendment right to be free from cruel and unusual p unishment by denying him outdoor exercise and “adequate living space” while he was in maximum custody. Rec. doc. 1, at 7 (Petition, filed Nov. 22, 2000). Although Mr. Rios acknowledges that he was afforded a hearing on his disciplinary offenses, he contends that prison officials improperly employed the maximum custody classification as a substitute for disciplinary seg regation. See id. at 6 (alleging that “respondent has subjected petitioner[] to atyp ical and significant hardships indefinitely under the guise of a custody classific ation” and that “petitioner[][has] been held in disciplinary segregation for 11 . . . months”) (internal quotation marks omitted). In his prayer for relief, Mr. Rios seeks “a declaration that the never ending punishment is unlawful, an injunction to be removed from the unlawful (atypical and significant) conditions, and administrative sen tence credit of 10 days for each-4-

day held unlawfully in segregation.” Id. at 7A. In addition, Mr . Rios seeks “credit for work abatement lost while in ‘max custo dy’/ segregation.” Id. The district court concluded that Mr. Rios’s allegations should be raised in a civil rights complaint rather than a § 2241 petit ion:

The crux of Rios’ factual allegations is a challeng e to his prolonged administrative segregation and its severe conditions. His requests for relief in the form of sente nce credit for time spent in segregated confinement and without prison employment are . . . not supported b y any legal authority. Such claims of entitlement to rel ief not warranted by the allegations in a pro se pleading d o not transform the matter into a habeas corpus action. Furthermore, Rios’ argument that he was held indefi nitely in disciplinary segregation without due process und er the guise of maximum custody does not indicate the loss of previously earned good time credit or other challen ges to disciplinary proceedings which may be reviewed in a petition for a writ of habeas corpus. Rec. doc. 16, at 7-8 (Order, filed June 6, 2003). The court therefore dismissed Mr. Rios’s petition without prejudice to the filing of a civil rights complaint challenging the condition of his confinement.

II. DISCUSSION In his appellate brief, Mr Rios argues that the dis trict court erred in failing to conduct a “Sandinanalysis.” Aplt’s Br. at 3. He maintains that th e conditions to which he was subjected in maximum custody affect ed a liberty interest because they constituted an “atypical and significant hards hip [upon him] in relation to the-5-

ordinary incidents of prison life.” Sandin v. Con ner , 515 U.S. 472, 484 (1995). As a result, Mr. Rios maintains, he could not be pl aced in maximum custody without some procedural protections. Mr. Rios also argues that prison officials violated his due process rights by reviewing his pl acement in maximum custody only once a year. Finally, Mr. Rios asserts that “ administrative sentence credit” constitutes an appropriate request for relief in th is § 2241 proceeding because he is barred from seeking monetary relief under the Fe res doctrine. See generally Feres v. United States , 340 U.S. 135, 146 (1950) (holding that the United States is immune from monetary damages for “injuries to servi cemen where the injuries arise out of or are in the course of activity incid ent to service”); Walden v. Bartlett , 840 F.2d 771, 774 (10th Cir. 1988) (holding that the Feres doctrine bars a military prisoner’s claims for monetary damages). Mr. Rios’s arguments raise legal issues that we examine de novo. See Khan v. Hart , 943 F.2d 1261, 1262 (10th Cir. 1991). Upon revie w of the record, we agree with the district court’s analysis.

As the district court noted: Petitions under § 2241 are used to attack the execu tion of a sentence . . . . [A]lthough a § 2241 attack on th e execution of a sentence may challenge some matters that occur at prison, such as deprivation of good-time c redits and other prison disciplinary matters, this does no t make § 2241 actions like condition of confinement lawsui ts, which are brought under civil rights laws. A habea s corpus proceeding attacks the fact or duration of a1 Moreover, the Feres doctrine is not as broad as Mr. Rios suggests: thi s

court has held that “[a military prisoner’s] claims for injunctive and declaratory relief [were] not barred by the Feres doctrine.” Walden , 840 F.2d at 775. -6- prisoner’s confinement and seeks the remedy of imme diate release or a shortened period of confinement. In co ntrast, a civil rights action . . . attacks the conditions of the prisoner’s confinement and requests monetary compensation for such conditions. McIntosh v. United States Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (internal citations and quotation marks omitted). Here, Mr. Rios’s allegations address the conditions of his confinement and thus should be raised in a civil rights action. Al though in his prayer for relief Mr. Rios seeks a ten-day sentence credit for each day h e has allegedly served improperly in maximum custody, he provides no suppo rt for his contention that he would be entitled to such relief if he prevailed on his substantive claims. Instead, the requested sentence credit appears to be an atte mpt to avoid the strictures of the Feres doctrine. 1 In our view, a prisoner may not transform a civil rights action involving the conditions of his confinement into a § 2241 petition merely by seeking sentencing relief in a manner not connec ted to his substantive claims. Cf. Hadley v. Holmes , 341 F.3d 661, 665 (7th Cir. 2003) (holding that t he possibility that a prisoner’s claim had the potenti al to affect the duration of his confinement was “too attenuated from this proceedin g to state a claim under § 2254”).-7- III. CONCLUSION Accordingly, we AFFIRM the district court’s dismiss al of Mr. Rios’s 28 U.S.C. § 2241 petition without prejudice to the fil ing of a civil rights complaint.

Entered for the Court,

Robert H. Henry Circuit Judge