NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JIMMY G. NIXON, SR., :

: Civil Action No. 11-2327 (JBS)

Petitioner, :

:

v. : OPINION

:

DONNA ZICKEFOOSE, et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se

Jimmy G. Nixon, Sr.

Federal Correctional Institution at Fort Dix

Fort Dix, New Jersey 08640

SIMANDLE, Chief Judge

Petitioner Jimmy G. Nixon, Sr., 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. Petitioner paid the $5.00 filing 1

fee. The respondents are Warden Donna Zickefoose, prison guard

 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-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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T. Riunk, counselor Robert Wiget, and counselor Walter T.

Biederback.

Because it appears from a review of the Petition that

Petitioner is not entitled to relief, the Petition will be

dismissed. See 28 U.S.C. § 2243.

I. BACKGROUND

Petitioner asserts that prison guard T. Rink wrote a false

incident report accusing Petitioner of refusing to obey her order

to leave the law library. Following a disciplinary hearing,

Petitioner was found to have committed the prohibited act as

charged. He was sanctioned to 30 days loss of commissary

privileges. Petitioner unsuccessfully pursued his administrative

appeals. This Petition followed.

Here, Petitioner seeks an order directing the Warden to

vacate the sanction imposed as a result of the disciplinary

proceeding, to expunge the incident report, and to transfer

Petitioner to another federal prison.

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.

2

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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 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

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

3

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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 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).

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 sanctions

affecting 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

4

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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 credits,

but claims regarding sanctioned loss of phone and visitation

privileges not cognizable in habeas).

Here, the only sanction imposed, loss of commissary

privileges, is not the type of sanction cognizable in habeas. 

Instead, any challenge to such a disciplinary proceeding must be

pursued in a civil rights action or civil action for declaratory

and/or injunctive relief. Accordingly, this Court lacks

jurisdiction to hear the claims in this habeas Petition.

Because Petitioner has not prepaid the $350.00 filing fee

for a civil action, and he appears ineligible to proceed in forma

pauperis in such an action, this Court will not construe this

matter as a civil rights complaint.2

 Title 28 U.S.C. § 1915(g), the “three strikes rule,” 2

limits the ability of prisoners to proceed in forma pauperis if

they have had at least three civil actions dismissed as frivolous

or for failure to state a claim.

In no event shall a prisoner bring a civil action or

appeal a judgment in a civil action or proceeding under

this section if the prisoner has, on 3 or more prior

occasions, while incarcerated or detained in any

facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it

is frivolous, malicious, or fails to state a claim upon

which relief may be granted, unless the prisoner is

5

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Instead, this Petition will be dismissed without prejudice. 

Petitioner may file a separate civil complaint, prepaying the

$350.00 filing fee for a civil action, if he wishes to pursue

these claims. This Court expresses no opinion as to the merits

of Petitioner’s claims.

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

Chief Judge

United States District Court

Dated: July 31, 2012

under imminent danger of serious physical injury.

Petitioner has had numerous civil actions dismissed as frivolous

or for failure to state a claim. See Nixon v. Johnson, No. 02-

13828-B (11th Cir. Oct. 1, 2002); Nixon v. Connor, Civil No. 98-

0295 (E.D. Tex. April 15, 1998); Nixon v. Hawk-Sawyer, Civil No.

98-0295 (5th Cir. April 14, 2000); Nixon v. Hawk-Sawyer, Civil

No. 98-2212 (W.D. La. Aug. 19, 1999); Nixon v. Cesterline, Civil

No. 97-1461 (W.D. La. July 9, 1998). As the allegations of the

Petition do not suggest that Petitioner is in imminent danger of

serious physical injury, he is not eligible to proceed in forma

pauperis with respect to the claims asserted here.

6

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