* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 30, 2007

Charles R. Fulbruge III

Clerk

REVISED SEPTEMBER 4, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10897

Summary Calendar

MARY ELIZABETH SCHIPKE,

Petitioner-Appellant,

v.

GINNEY VAN BUREN, Warden, Federal Medical Center - Carswell,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:06-CV-349

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.

PER CURIAM:*

Mary Elizabeth Schipke appeals the district court’s dismissal of her 28

U.S.C. 2241 petition for failure to exhaust administrative remedies. Schipke

raised numerous claims pertaining to perceived injustices regarding her medical
No. 06-10897

2

treatment and the conditions of her detention and sought an order for injunctive

relief modifying the conditions of her detention. 

The district court held that Schipke had failed to exhaust her administrative

remedies and dismissed the § 2241 petition. As an initial matter, this court

recognizes that a prisoner cannot avail herself of habeas corpus relief when

seeking injunctive relief that, as in this case, is unrelated to the cause of her

detention. See e.g., Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993).

“Habeas corpus is not available to prisoners complaining only of mistreatment

during their legal incarceration.” Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir.

1979). Allegations that challenge the fact or duration of confinement are

properly brought in habeas petitions, while allegations that challenge rules,

customs, and procedures affecting conditions of confinement are properly

brought in civil rights actions. See Spina v. Aaron, 821 F.2d 1126, 1127-28 (5th

Cir. 1987); see also Cook v. Texas Dept. of Criminal Justice Transitional

Planning Dept., 37 F.3d 166, 168 (5th Cir. 1994).

Since none of the claims raised by Schipke challenge the fact or duration

of her confinement and none, if prevailed on, would entitle her to accelerated

release, Schipke’s claims are not cognizable in a habeas action, but should have

been raised in a Bivens action. Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971); see Spina, 821 F.2d at 1127-28. Nevertheless, Schipke would not

have prevailed on her claims even if the district court had construed her suit as

arising under Bivens, since the exhaustion requirement also applies to Bivens

actions. See Porter v. Tussle, 534 U.S. 516, 525 (2002).

A federal prisoner must exhaust his administrative remedies before

seeking purely injunctive relief under Bivens. See Rourke v. Thompson, 11 F.3d

47, 49 (5th Cir. 1993). “Exceptions to the exhaustion requirement are

appropriate where the available administrative remedies either are unavailable

or wholly inappropriate to the relief sought, or where the attempt to exhaust
No. 06-10897

3

such remedies would itself be a patently futile course of action.” Fuller v. Rich,

11 F.3d 61, 62 (5th Cir. 1994). Exceptions to the exhaustion requirement apply

only in “extraordinary circumstances,” and Schipke bears the burden of

demonstrating the futility of administrative review. See id.

The record demonstrates that Schipke has not exhausted the

administrative remedies provided by 28 C.F.R. §§ 542.10-542.19. Further,

Schipke has failed to carry her burden of showing that administrative remedies

are either unavailable or wholly inappropriate to the relief sought or that

exhausting her claims through the administrative process would be futile. The

judgement ofthe district courtis AFFIRMED. Schipke’s motion for an expedited

appeal is DENIED.