NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID SOLAN, :

Civil Action No. 11-679 (JBS)

Petitioner, :

v. : OPINION

WARDEN DONNA ZICKEFOOSE, :

Respondent. :

APPEARANCES:

Petitioner pro se

David Solan

F.C.I. Fort Dix

P.O. Box 2000

Fort Dix, NJ 08640

SIMANDLE, District Judge

Petitioner David Solan (“Petitioner”), a prisoner currently

confined at the Federal Correctional Institution at Fort Dix, New

Jersey, has submitted a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2241(c)(1). The sole respondent is Warden 1

Donna Zickefoose.

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- (1) He is in custody under or by

color of the authority of the United States, or ... (3)

He is in custody in violation of the Constitution or

laws or treaties of the United States ... .

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I. BACKGROUND

Petitioner asserts that he is being denied access to the email

function of TRULINCS (“Trust Fund Limited Inmate Computer System”)

in violation of the First Amendment, the Due Process clause, the

Equal Protection clause, the Fifth Amendment and 5 U.S.C. §§701-

706. 

Petitioner is seeking declaratory and injunctive relief, as

well as reimbursement of legal costs. 

II. STANDARDS FOR A SUA SPONTE DISMISSAL

United States Code Title 28, Section 2243 provides in relevant

part as follows:

A court, justice or judge entertaining an

application for a writ of habeas corpus shall forthwith

award the writ or issue an order directing the respondent

to show cause why the writ should not be granted, unless

it appears from the application that the applicant or

person detained is not entitled thereto.

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

A pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce v.

Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney General,

878 F.2d 714, 721-22 (3d Cir. 1989); United States v. Brierley, 414

F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). 

Nevertheless, a federal district court can dismiss a habeas corpus

petition if it appears from the face of the petition that the

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petitioner is not entitled to relief. See Lonchar v. Thomas, 517

U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir.

1985), cert. denied, 490 U.S. 1025 (1989). See also 28 U.S.C.

§§ 2243, 2255.

III. ANALYSIS

This court lacks jurisdiction in habeas to hear Petitioner’s

challenge to the Warden’s restriction on his access to email. 

Accordingly, the Petition will be dismissed without prejudice for

lack of jurisdiction. Petitioner will be granted leave to pursue

his claims in a civil rights action.

A habeas corpus petition is the proper mechanism for a

prisoner to challenge the “fact or duration” of his confinement,

Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973), including

challenges to prison disciplinary proceedings that affect the

length of confinement, such as deprivation of good time credits,

Muhammad v. Close, 540 U.S. 749 (2004) and Edwards v. Balisok, 520

U.S. 641 (1997). See also Wilkinson v. Dotson, 125 S.Ct. 1242

(2005). In addition, where a prisoner seeks a “quantum change” in

the level of custody, for example, where a prisoner claims to be

entitled to probation or bond or parole, habeas is the appropriate

form of action. See, e.g., Graham v. Broglin, 922 F.2d 379 (7th

Cir. 1991) and cases cited therein. See also Woodall v. Federal

Bureau of Prisons, 432 F.3d 235, 237 (3d Cir. 2005) (challenge to

regulations limiting pre-release transfer to community corrections

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centers properly brought in habeas); Macia v. Williamson, 2007 WL

748663 (3d Cir. 2007) (finding habeas jurisdiction in challenge to

disciplinary hearing that resulting in sanctions including loss of

good-time credits, disciplinary segregation, and disciplinary

transfer).

The Court of Appeals for the Third Circuit has held that

habeas corpus is an appropriate mechanism, also, for a federal

prisoner to challenge the execution of his sentence. See Coady v.

Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001) (noting that federal

prisoners may challenge the denial of parole under § 2241); Barden

v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990) (challenge to BOP

refusal to consider prisoner’s request that state prison be

designated place for service of federal sentence).

The Court of Appeals has noted, however, that “the precise

meaning of ‘execution of the sentence’ is hazy.” Woodall, 432 F.3d

at 237. To the extent a prisoner challenges his conditions of

confinement, such claims must be raised by way of a civil rights

action. See Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002). See

also Ganim v. Federal Bureau of Prisons, 235 Fed.Appx. 882, 2007 WL

1539942 (3d Cir. 2007) (challenge to garden-variety transfer not

cognizable in habeas); Castillo v. FBOP FCI Fort Dix, 221 Fed.Appx.

172, 2007 WL 1031279 (3d Cir. 2007) (habeas is proper vehicle to

challenge disciplinary proceeding resulting in loss of good-time

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credits, but claims regarding sanctioned loss of phone and

visitation privileges not cognizable in habeas).

Here, Petitioner’s challenge to the restriction of email

privileges, is the type of challenge to conditions of confinement

that must be brought by way of a civil rights action or action for

declaratory and injunctive relief.

Because Petitioner has not prepaid the $350.00 filing fee, and

because of the consequences that flow from a grant of leave to

proceed in forma pauperis in a civil rights action or from the

dismissal of a civil rights action, this Court will not construe

this matter as a civil rights complaint. See 28 U.S.C. § 1915(g). 

Instead, this Petition will be dismissed and the Clerk of the Court

will be directed to open a new, civil action. Petitioner will be

granted leave to advise the Court whether he wishes to proceed with

this matter as a civil action.

This Court expresses no opinion as to the merits of

Petitioner’s claim.

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice for lack of jurisdiction. An

appropriate order follows.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE

United States District Judge

Dated: April 4, 2011

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