*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JAN 6 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH N. HALL, 

Petitioner - Appellant, No. 97-6200

v. (D.C. No. 97-CV-534)

A. M. FLOWERS; K. REID; J. M.

WILNER; LIEUTENANT

PHEMIESTER; and MR. CROOK,

(W.D. Okla.)

Respondents - Appellees.

 

ORDER AND JUDGMENT*

Before BALDOCK, McKAY, and LUCERO, Circuit Judges.

After examining Appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Petitioner-Appellant Joseph N. Hall, Jr., a federal prisoner, filed a pro se petition

for a writ of habeas corpus, 28 U.S.C. § 2241, in the Western District of Oklahoma. The
2

magistrate judge directed Appellant to file the petition on the appropriate form for habeas

corpus petitions. According to Appellant, he believed his petition need not be written on

the form as long as it was substantially in the form of the model. Appellant states that he

also believed the judge provided the form because his petition was hand-written and

therefore illegible to the court. When Appellant typed his original petition and

resubmitted it to the court, the district court dismissed the petition without prejudice for

failure to substantially comply with the form provided.

Appellant indicates that he had trouble using the form because the questions were

not “specific.” We believe that one possible reason for his difficulty is that Appellant is

not actually seeking habeas relief. He is bringing a civil claim. Habeas petitions are

limited to attacks upon the validity, execution, or duration of confinement. See Bradshaw

v. Story, 86 F.3d 164, 166 (10th Cir. 1996); Bradenburg v. Beaman, 632 F.2d 120, 122

(10th Cir. 1980). From the record and Appellant’s brief, it appears to us that Appellant is

only challenging the adequacy of the library facilities; he is attacking a condition of

confinement rather than the fact or duration of his confinement. Cf. McIntosh v. United

States Parole Comm’n, 115 F.3d 809, 811-12 (10th Cir. 1997) (outlining distinctions

between condition of confinement claims which are brought under civil rights laws and

claims appropriately brought through habeas corpus proceedings). Such a claim is not

cognizable as a habeas claim but should be brought through a civil action. Cf.

Bradenburg, 632 F.2d at 122 (implying habeas corpus is an inappropriate jurisdictional
3

basis for an action seeking access to an adequate law library).

Nevertheless, pro se pleadings are to be liberally construed. See Haines v. Kerner,

404 U.S. 519, 520 (1972). Therefore, Appellant’s petition challenging a condition of

confinement should have been construed as a complaint under 42 U.S.C. § 1983. See

Wilwording v. Swenson, 404 U.S. 249, 251 (1971) (per curiam) (construing habeas

claims as section 1983 claims). Appellant’s allegations are sufficient to state a claim that

the inadequacy of the library facilities amount to denial of his constitutional right of

access to the courts. We therefore remand with directions to the district court to allow

Appellant to raise a civil action concerning the conditions of the library. 

We grant Appellant a certificate of appealability, and we grant his motion for leave

to proceed in forma pauperis. Since this does not appear to be a habeas corpus

proceeding, the fee payment provisions under 28 U.S.C. § 1915(b) do apply, and we deny

Appellant’s request for reimbursement of the $23.37 initial partial filing fee he paid on

July 17, 1997. We VACATE the district court’s order of dismissal and REMAND for

consideration of Appellant’s claim as a civil action.

ENTERED FOR THE COURT

Monroe G. McKay

Circuit Judge