United States Court of Appeals

For the Eighth Circuit

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No. 13-3460

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Addones Spencer

lllllllllllllllllllll Plaintiff - Appellant

v.

Anthony Haynes, Disciplinary Hearing Officer, FCI - Forrest City

lllllllllllllllllllll Defendant - Appellee

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Appeal from United States District Court 

for the Eastern District of Arkansas - Helena

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 Submitted: September 10, 2014

 Filed: December 17, 2014

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Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.

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SMITH, Circuit Judge. 

Addones Spencer appeals the district court's order dismissing his habeas corpus

petition alleging a conditions-of-confinement claim against his former custodian,

Anthony Haynes, the former Warden of the Federal Correctional Institution - Forrest

City. Our precedent precludes conditions-of-confinement claims using the vehicle of

a habeas petition. The district court applied our precedent and dismissed Spencer's
claim. However, the court dismissed the claim without prejudice. We hold that the

district court should have liberally construed Spencer's pro se habeas petition and

given Spencer the option to pursue the claim under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We remand for further

proceedings consistent with this opinion.

I. Background

While an inmate in FederalCorrectional Institution - Forrest City, Spencer was 1

assigned a cell for a medical assessment. Correctional Officer Lieutenant Mark A.

Sheldon entered the cell to assist staff with checking Spencer's restraints. Spencer

backed himself into a corner, was verbally abusive, and claimed he did not need a

medical assessment. Staff memberstold Spencer to sit down on the bunk, but Spencer

was uncooperative and aggressively resisted the staff. While Spencer was forcibly

being placed on the bed, he bit Sheldon's abdomen. Spencer was then placed in

"four-point" restraints around 9:10 a.m. and was not removed from those restraints

until 3:45 p.m. the following day according to Bureau of Prisons documents. After

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a hearing, the Disciplinary Hearing Officer found that Spencer assaulted Sheldon and

disciplined Spencer with losses of privileges.

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Spencer has since been moved from this facility and he currently is in the

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custody of United States Prison Beaumont in Beaumont, Texas.

Spencer alleges in his habeas petition that he was restrained for "3 to 4 days

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without food or water," that he had to move his bowels while in the restraints, and

that he had to lay in his own body waste. These allegations were not consistent with

the district court's findings, so we do not address them here. 

The loss of privileges included 45 days of disciplinary segregation, a loss of 3

365 days of commissary privileges, phone privileges, and visitation privileges, a

disallowance of 27 days of good conduct time, and a forfeiture of 27 days of nonvested good conduct time. Good conduct time usually refers to a sentence reduction

given to prisoners who maintain good conduct. See McIntosh v. United States Parole

Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (stating "a § 2241 action challenging

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Spencer brought a petition for habeas corpus alleging, among other things, a

Fifth Amendment due process violation for being put in four-point restraints without

being afforded a hearing. The district court never reached the merits of this claim, but

instead dismissed the habeas petition without prejudice because it concluded that

conditions-of-confinement claims cannot be raised in the context of habeas petitions.4

On appeal, we appointed counsel for Spencer and requested briefing on (i)

whether this court has jurisdiction to consider habeas petitions under 28 U.S.C.

§ 2241 that combine unlawful custody claims with unrelated conditions-ofconfinement claims, and if not, (ii) whether the proper disposition is to dismiss the

latter without prejudice, or liberally construe the pro se petition and decide the

conditions-of-confinement claims under Bivens principles.

II. Discussion

A. § 2241 Jurisdiction

"We review the district court's dismissal of a § 2241 petition de novo." Flowers

v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011) (emphasis in original) (citing LopezLopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010)). As we stated in Kruger v.

Erickson, "[i]f the prisoner is not challenging the validity of his conviction or the

length of his detention, such as loss of good time, then a writ of habeas corpus is not

the proper remedy." 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam) (citing Preiser

v. Rodriguez, 411 U.S. 475, 499 (1973)). Spencer does not challenge his conviction,

prison disciplinary proceedings, such as the deprivation of good-time credits, is not

challenging prison conditions, it is challenging an action affecting the fact or duration

of the petitioner's custody"). Spencer has not appealed the dismissal of his

lost-privileges claims nor challenged the validity of the disciplinary hearing. 

A magistrate judge fully articulated thisfinding and made the recommendation

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to the district court to dismiss the habeas petition, and the district court adopted the

magistrate's findings and recommendations in full. 

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nor does he seek a remedy that would result in an earlier release from prison. Rather,

Spencer argues on appeal that being put in four-point restraints for such an extended

period of time violated his Eighth Amendment right against cruel and unusual

punishment. As such, Spencer's constitutional claim relates to the conditions of his

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confinement. See, e.g., Key v. McKinney, 176 F.3d 1083, 1085–86 (8th Cir. 1999)

(finding that a prisoner's allegation of an unconstitutional use of handcuff restraints

and leg shackles for 24 hours was a conditions-of-confinement claim and alleged a

violation ofthe prisoner's Eighth Amendment rights).Consequently, a habeas petition

is not the proper claim to remedy his alleged injury. 

The Supreme Court's Preiser decision left open "the question of the propriety

of using a writ of habeas corpus to obtain review of the conditions of confinement,

as distinct from the fact or length of the confinement." Bell v. Wolfish, 441 U.S. 520,

526 n.6 (1979). As a result, a split has arisen amongst our sister circuits on thisissue.6

Spencer's original habeas petition in the district court alleged a Fifth 5

Amendment due process violation for being put into the four-point restraints without

a hearing. On appeal, however, it appears that Spencer now asserts exclusively that

being put in the restraints for an extended period violated his Eighth Amendment

rights against cruel and unusual punishment. 

As outlined extensively in Aamer v . Obama, 742 F.3d 1023 (D.C. Cir. 2014)

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the courts of appeals are divided on whether habeas petitions are appropriate

procedural vehicles by which to remedy conditions-of-confinement claims. Id. at

1036–38 . The D.C. Circuit, the Second Circuit, the Third Circuit, the Fourth Circuit,

and the Sixth Circuit firmly stand in the camp of allowing conditions-of-confinement

claims to be brought in the habeas corpus context, with the First Circuit contributing

dictum to this view. See id., 742 F.3d at 1026, 1035–36 (finding that prisoners

bringing a conditions-of-confinement claim where they were force-fed while

attempting a hunger strike was appropriate under a habeas petition); Adams v.

Bradshaw, 644 F.3d 481, 482–83 (6th Cir. 2011) (per curiam) (holding that a state

prisoner's Eighth Amendment challenge to the state of Ohio's lethal injection

procedures was appropriate in the context of a habeas petition); Thompson v.

Choinski, 525 F.3d 205, 206, 209 (2d Cir. 2008) (holding that a prisoner's conditions-

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Notwithstanding, we are bound by our post-Preiser precedent. See Mader v. United

States, 654 F.3d 794, 800 (8th Cir. 2011). We, therefore, apply our precedent in

Kruger, which is consistent with the holdings of the Fifth Circuit, the Seventh

Circuit, the Ninth Circuit, and the Tenth Circuit, with the Eleventh Circuit 7 8 9

of-confinement claim was appropriate under a habeas petition where he was denied

access to the prison library, denied kosher food, and contested prison discipline)

(citing Jiminian v. Nash, 245 F.3d 144, 146 (2d. Cir. 2001) ("A motion pursuant to

§ 2241 generally challenges the execution of a federal prisoner's sentence, including

such matters as the administration of parole, computation of a prisoner's sentence by

prison officials, prison disciplinary actions, prison transfers, type of detention and

prison conditions.") (emphasis in original)); Woodall v. Fed. Bureau of Prisons, 432

F.3d 235, 242 n.5, 243 (3d Cir. 2005) (holding that a prisoner's challenge to

regulations limiting the opportunity for placement in community confinement could

proceed by way of habeas corpus "even if what is at issue . . . is 'conditions of

confinement.'"); McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975) (per curiam)

("We hold there is federal habeas corpus jurisdiction over the complaint of a federal

prisoner who is challenging not the validity of his original conviction, but the

imposition ofsegregated confinement without elementaryprocedural due process and

without just cause."); see also United States v. DeLeon, 444 F.3d 41, 59 (1st Cir.

2006) (stating in dictum"[i]f the conditions ofincarceration raise Eighth Amendment

concerns, habeas corpus is available"). 

Glaus v. Anderson, 408 F.3d 382, 386–88 (7th Cir. 2005) (holding that a

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prisoner's request to be transferred to a prison facility that could give him proper

medical treatment for Hepatitis C was inappropriate under a habeas petition because

it was a conditions-of-confinement claim).

The weight of Ninth Circuit precedent disapproves of using habeas petitions

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for conditions-of-confinement claims. See Docken v. Chase, 393 F.3d 1024, 1031 (9th

Cir. 2004); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003); Neal v. Shimoda,

131 F.3d 818, 824 (9th Cir. 1997); Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.

1997); Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir. 1979).

Montez v. McKinna, 208 F.3d 862, 864 (10th Cir. 2000) (holding that a

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prisoner's allegation that being moved between several prison institutions violated his

Constitution rights was appropriate under a habeas petition because it was a hybrid

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contributing to this view in an unpublished decision. See, e.g.,Cook v. Hanberry, 592

F.2d 248, 248 (5th Cir. 1979) (per curiam) (finding that a prisoner's request for

transfer back to a West Coast facility where he was previously incarcerated could not

be brought under a habeas petition because "[h]abeas corpus is not available to

prisoners complaining only of mistreatment" and "[t]he relief from [the petitioner's

injury], [i]f proved, is in the form of equitably-imposed restraint, not freedom from

otherwise lawful incarceration"). 

B. Liberal Treatment of Pro Se Habeas Petitions

We construe Spencer's pro se petition liberally. Here, an appropriate

construction would be to recharacterize Spencer's claim into the correct procedural

vehicle for the claim asserted. In Papantony v. Hedrick, 215 F.3d 863 (8th Cir. 2000)

(per curiam), we upheld a district court's dismissal of a habeas petition challenging

forced medication; nevertheless, because "[w]e . . . recognize[d] [the petitioner] [was]

a pro se petitioner and, as such, should not unreasonably be subjected to stringent

procedural niceties," we construed the action as a Bivens claim. Id. at 865. Our

decision in Young v. Armontrout, 795 F.2d 55 (8th Cir. 1986), is also informative.

There, we remanded a habeas petition back to the district court to be considered as

a complaint under 42 U.S.C. § 1983 because after "reading Young's petition liberally,

asisrequired in this case, it is apparent that Young has also raised a potentially viable

[E]ighth [A]mendment claim." Id. at 56. Spencer's habeas petition similarly raised

potential Eighth Amendment violations. As in Young, the district court should have

treated this case as a Bivens action as opposed to dismissing the petition without

prejudice.

Finally, we approve the Seventh Circuit's wisdom outlined in Robinson v.

Sherrod, 631 F.3d 839 (7th Cir. 2011). Thus, we think it appropriate to consider the

action that ultimately challenged "the fact or duration of [the petitioner's] confinement

in Colorado"). 

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potential detriment to habeas petitioners if district courts, sua sponte, transformed

their habeas petitions into Bivens or § 1983 claims, and vice versa. See id. at 841. As

a result, we think the better practice will be for district courts to first obtain the

consent of the pro se individual before converting their claims from a habeas

proceeding to a Bivens action.

III. Conclusion

We reverse the district court's dismissal of Spencer's habeas petition because

it seeks relief only for a conditions-of-confinement claim and we remand the case to

the district court to reopen the matter and give Spencer an opportunity to pursue his

claim as a Bivens suit if he so chooses.

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