NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

DAVID L. FLOYD, :

:

Petitioner, :

:

v. :

:

DONNA ZICKEFOOSE, :

:

Respondent. :

 :

Civil No. 11-3593 (JBS)

 OPINION

APPEARANCES:

DAVID L. FLOYD, Petitioner pro se

# 27522-038

FCI Fort Dix

P.O. Box 2000

Fort Dix, New Jersey 08640

JOHN ANDREW RUYMANN, AUSA

OFFICE OF THE U.S. ATTORNEY

402 East State Street, Suite 430

Trenton, New Jersey 08608

Counsel for Respondent

SIMANDLE, Chief Judge

Petitioner, David L. Floyd (“Floyd”), confined at the FCI

Fort Dix in Fort Dix, New Jersey, at the time he filed this

action, brings this petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2241(c)(3), challenging his prison facility

designation at FCI Fort Dix. The named respondent is the Warden

at FCI Fort Dix, where Floyd was confined at the time he filed

his habeas petition. On August 25, 2011, respondent filed a

motion to dismiss the petition. (See Docket entry no. 12). For

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 1 of 20 PageID: 89
the reasons stated below, finds that the petition should be

dismissed without prejudice for Petitioner’s failure to exhaust

his administrative remedies, or alternatively, for lack of

subject matter jurisdiction.

I. BACKGROUND

A. Factual and Procedural Background

Floyd filed the instant habeas petition on or about June 23,

2011, challenging his prison designation at FCI Fort Dix, and

seeking a transfer to a Federal Medical Center (“FMC”), namely, 

the FMC Devens. In his petition, Floyd alleges that he was

sentenced to 70 months imprisonment for his federal court

conviction on charges of possession/receiving child pornography. 

Floyd further alleges that he has an extensive mental health

history that was outlined in his federal presentence

investigation report. Based on his mental health history, the

sentencing judge recommended that Floyd be committed to the Fort

Devens medical treatment facility. (Petition at pg. 2). 

However, Floyd was designated to serve his sentence at the FCI

Fort Dix. Floyd alleges that on August 25, 2010 and again on May

10, 2011, he was physically attacked by other inmates at FCI Fort

Dix. For his safety, Floyd was placed in a Special Housing Unit

(“SHU”). On May 26, 2011, Floyd was placed in the SHU at FCI

Fort Dix indefinitely based on threats of another inmate attack

2

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 2 of 20 PageID: 90
on Petitioner. Floyd also was informed that a transfer to

another prison facility was being contemplated. (Pet., pg. 3). 

Floyd alleges that he receives Social Security Disability

payments for his mental illness and that he was hospitalized on

three separate occasions from 1980 through 2010, with diagnoses

of post-traumatic syndrome disorder (“PTSD”), manic bi-polar

disorder (rapid cycle), clinical depression and anxiety disorder. 

Petitioner also has been prescribed medications for treatment of

his mental disorders. (Pet., pg. 4). In particular, Floyd

relates that he had been hospitalized at the Arbour Fuller

Hospital in Attleboro, Massachusetts for psychiatric care before

he voluntarily self-surrendered to the U.S. Marshals to serve his

federal sentence. (Pet., pg. 4). Floyd asserts that the

decision of the Federal Bureau of Prisons (“BOP”) not to transfer

him to the FMC Devens violates his Eighth Amendment right against

cruel and unusual punishment and his Fifth Amendment right to

equal protection. He also claims that 5 U.S.C. § 552a requires 1

the BOP to correct its system of records to reflect that

Petitioner is mentally ill and not suitable for housing in a

general population federal prison facility. (Petition, pp. 4-6). 

On August 25, 2011, Respondent responded to the habeas

 Floyd asserts his right to equal protection under the 1

laws pursuant to the Fourteenth Amendment. However, because he

is a federal prisoner, his claim is more appropriately construed

under the Fifth Amendment.

3

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 3 of 20 PageID: 91
petition by filing a motion to dismiss for failure to exhaust

administrative remedies, or alternatively, for lack of subject

matter jurisdiction. (Docket entry no. 12). Respondent provided

the relevant record in this matter, which was appended to the

Declarations of Kevin Bullock and Tara Moran. (Docket entry nos.

12-2 and 12-3, respectively). The record provided by the

Respondent shows the following facts.

Floyd was sentenced on April 29, 2010, in the United States

District Court for the District of Massachusetts, to a prison

term of 70 months with a 15-year term of supervised release to

follow, for Receipt of Child Pornography and Possession of Child

Pornography in violation of 18 U.S.C. § 2252(A)(2). Petitioner’s

projected release date is December 4, 2014, assuming he receives

all good conduct time (“GCT”) available to him. (Moran Decl.,

Exhibit 1).

At sentencing, the sentencing judge recommended the FMC

Devens for service of Petitioner’s sentence. On July 13, 2010,

the BOP’s Designation and Sentence Computation Center (“DSCC”)

instead designated Floyd to the FCI Fort Dix. The designation

noted that the judicial recommendation for service of sentence at

FMC Devens was not followed based on population management

issues. It was further noted that Floyd would be reviewed for

the Residential Drug Abuse program (“RDAP”) and the Sex Offender

Treatment Program (“SOTP”)if/when he became eligible. It was

4

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 4 of 20 PageID: 92
finally noted that the Office of Medical Designations and

Transfers (“OMDT”) had reviewed Floyd’s medical records and

cleared him for the DSCC to designate Floyd at a non-medical

center. (Bullock Decl., ¶ 5 and Ex. 1 [Security/Designation

Data]).

On or about August 22, 2011, Floyd was designated to FCI

Allenwood in Allenwood, Pennsylvania. This re-designation was

based upon an investigation conducted by the FCI Fort Dix Special

Investigative Services (“SIS”) Department, in which the SIS

determined that Floyd required protective custody and could not

return to the general prison population at FCI Fort Dix. The redesignation was not based on any mental health issues that could

not be properly treated at FCI Fort Dix. (Bullock Decl., ¶ 6 and

Ex. 2 [Inmate Profile]).

Respondent alleges that Floyd has failed to exhaust his

administrative remedies concerning his request to be transferred

to FMC Devens, or his allegations that the BOP is maintaining

inaccurate medical records regarding Floyd’s psychological

condition. Respondent specifically shows that Floyd filed only a

BP-9 administrative remedy with the Warden at FCI Fort Dix, on or

about June 24, 2011, requesting a transfer to FMC Devens and

alleging that the BOP has inaccurate or incomplete medical

documentation for him. Floyd has failed to complete the

5

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 5 of 20 PageID: 93
remaining steps of the administrative remedy process. (Moran

Decl., ¶¶ 4-5 and Ex. 2).

On July 8, 2011, the Warden at FCI Fort Dix filed a response

to Floyd’s BP-9 administrative remedy. In denying the relief

requested, the Warden stated:

A review of this matter indicates you are serving a 70-month

sentence for Receipt/Possession of Child Pornography. You

were designated to FCI Fort Dix, NJ, on July 27, 2010. The

Bureau of Prisons attempts to designate inmates within 500

miles of their release residence. According to your release

residence of Franklin, Massachusetts, you are currently 221

miles from this location.

A review of your Judgment and Commitment indicates your

sentencing judge recommended you be designated to Fort

Devens. However, this is solely a recommendation, and

factors such as institution population levels, inmate

security and supervision needs, and available programs

occasionally result in placement other than the judicially

recommended facility. You are currently a Care Level 1

inmate which can be appropriately cared for at FCI Fort Dix. 

You have not indicated what information compiled by the BOP

is incomplete or inaccurate, therefore this issue cannot be

addressed. Accordingly, your request is denied.

If you are dissatisfied with this response, you may appeal

to the Northeast Regional Director, Federal Bureau of

Prisons. Your appeal must be received in the Northeast

Regional Office, U.S. Customs House, 2 and Chestnut nd

Streets, Philadelphia, PA 19106, within 20 calendar days of

the date of this response.

(Moran Decl., Ex. 2).

Respondent contends that the habeas petition should be

dismissed for failure to exhaust administrative remedies. 

Respondent also argues that this Court lacks subject matter

jurisdiction over Petitioner’s designation and record maintenance

6

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 6 of 20 PageID: 94
allegations because a judgment in his favor would not affect the

fact or duration of Petitioner’s confinement.

B. BOP Policy Regarding Designations and Transfers

Congress has delegated to the Attorney General, and the BOP,

the authority to determine an inmate’s appropriate classification

and place of confinement. See e.g., 18 U.S.C. § 3621; 28 C.F.R.

§ 0.96; BOP Program Statement 5100.08, Inmate Security

Designation and Custody Classification. Specifically, Section

3621 provides:

(b) Place of imprisonment.-The Bureau of Prisons shall

designate the place of the prisoners’s imprisonment. The

Bureau may designate any available penal or correctional

facility that meets minimum standards of health and

habitability established by the Bureau, whether maintained

by the Federal Government or otherwise and whether within or

without the judicial district in which the person was

convicted, that the Bureau determines to be appropriate and

suitable, considering-

(1) the resources of the facility contemplated;

(2) the nature and circumstances of the offense;

(3) the history and characteristics of the prisoner;

(4) any statement by the court that imposed the sentence-

(A) concerning the purposes for which the sentence to

imprisonment was determined to be warranted; or

(B) recommending a type of penal or correctional facility as

appropriate; and

(5) any pertinent policy statement issued by the Sentencing

Commission pursuant to section 994(a)(2) of Title 28.

In designating the place of imprisonment or making transfers

under this subsection, there shall be no favoritism given to

prisoners of high social or economic status. The Bureau may

at any time, having regard for the same matters, direct the

transfer of a prisoner from one penal or correctional

facility to another.

18 U.S.C. § 3621(b). 

7

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 7 of 20 PageID: 95
Generally, BOP institutions are classified into five

security levels: minimum, low, medium, high, and administrative. 

These classifications are based on the level of security the

institution is able to provide. Before an inmate’s designation

is made, the inmate’s particular security and program needs, and

certain administrative factors, are assessed to determine the

appropriate level institution. The BOP designates a prisoner to

a given institution based on the level of security and

supervision the inmate requires, the level of security and

supervision the institution is able to afford, and the inmate’s

program needs. BOP Program Statement 5100.08, Security

Designation and Custody Classification Manual, Chapter 1, pg. 1.2

Respondent relates that the BOP’s Designation and Sentence

Computation Center (“DSCC”) is responsible for designating new

commitments to the appropriate facility. BOP Program Statement

5100.08, Chapter 3, Security Designation Procedures for New

Commitments. In cases where an inmate’s medical or mental health

concerns raise issues for designation, the DSCC is responsible

for evaluating the information to ascertain whether the inmate

will need medical or mental health evaluations and treatment. 

Id., Chapter 3, pg. 7. If medical or mental health concerns are

apparent, the DSCC will forward all necessary information to the

 BOP Program Statements are available on the Internet at 2

http://bop.gov/DataSource/execute/dsPolicyLoc.

8

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 8 of 20 PageID: 96
Central Office Medical Designator, which also is known as the

Office of Medical Designations and Transfers (“OMDT”). Id., pp.

7-8. If an inmate is referred to the OMDT for placement at a

medical facility, the OMDT will either designate a federal

medical center facility, or it will turn the designation back to

the DSCC if it has determined that no medical or mental health

concerns exist. Id., pg. 8. See also Bullock Decl., ¶ 4. 

C. BOP Administrative Remedy Procedures

The BOP Administrative Remedy Program is a multi-tier

process that is available to inmates confined in institutions

operated by the BOP for “review of an issue which relates to any

aspect of their confinement.” 28 C.F.R. § 542.10. An inmate

must initially attempt to informally resolve the issue with

institutional staff. See 28 C.F.R. § 542.13(a). If informal

resolution fails or is waived, an inmate may submit a BP-9

Request to “the institution staff member designated to receive

such Requests (ordinarily a correctional counsel)” within 20 days

of the date on which the basis for the Request occurred, or

within any extension permitted. See 28 C.F.R. § 542.14. An

inmate who is dissatisfied with the Warden’s response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response. 

See 28 C.F.R. § 542.15(a). The inmate may appeal to the BOP’s

General Counsel on a BP-11 form within 30 days of the day the

9

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 9 of 20 PageID: 97
Regional Director signed the response. See id. Appeal to the

General Counsel is the final administrative appeal. See id. If

responses are not received by the inmate within the time allotted

for reply, “the inmate may consider the absence of a response to

be a denial at that level.” 28 C.F.R. § 542.18.

II. ANALYSIS

A. Standards of Review 

Floyd brings his habeas petition as a pro se litigant. 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).

Section 2241 of Title 28 of the United States Code provides

in relevant part:

(c) The writ of habeas corpus shall not

extend to a prisoner unless– . . . He is in

custody in violation of the Constitution or

laws or treaties of the United States.

28 U.S.C. § 2241(a), (c)(3).

10

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 10 of 20 PageID: 98
B. Exhaustion of Administrative Remedies 

As an initial matter, Respondent argues that Petitioner did

not fully exhaust his administrative remedies before filing this

habeas petition. Although 28 U.S.C. § 2241 contains no statutory

exhaustion requirement, a federal prisoner ordinarily may not

bring a petition for writ of habeas corpus under 28 U.S.C. §

2241, challenging the execution of his sentence, until he has

exhausted all available administrative remedies. See, e.g.,

Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Arias v.

United States Parole Comm’n, 648 F.2d 196, 199 (3d Cir. 1981);

Soyka v. Alldredge, 481 F.2d 303, 306 (3d Cir. 1973). The

exhaustion doctrine promotes a number of goals:

(1) allowing the appropriate agency to develop a

factual record and apply its expertise facilitates

judicial review; (2) permitting agencies to grant the

relief requested conserves judicial resources; and (3)

providing agencies the opportunity to correct their own

errors fosters administrative autonomy.

Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999), aff’d,

248 F.3d 1130 (3d Cir. 2000). See also Moscato v. Federal Bureau

of Prisons, 98 F.3d 757, 761 (3d Cir. 1996). Nevertheless,

exhaustion of administrative remedies is not required where

exhaustion would not promote these goals. See, e.g., Gambino v.

Morris, 134 F.3d 156, 171 (3d Cir. 1998) (exhaustion not required

where petitioner demonstrates futility); Lyons v. U.S. Marshals,

840 F.2d 202, 205 (3d Cir. 1988) (exhaustion may be excused where

it “would be futile, if the actions of the agency clearly and

11

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 11 of 20 PageID: 99
unambiguously violate statutory or constitutional rights, or if

the administrative procedure is clearly shown to be inadequate to

prevent irreparable harm”); Carling v. Peters, 2000 WL 1022959,

*2 (E.D. Pa. 2000) (exhaustion not required where delay would

subject petitioner to “irreparable injury”).

In Snisky v. Pugh, the petitioner did not deny his failure

to exhaust; however, the Court excused exhaustion because the

petitioner was scheduled to be released, and his claim was

clearly without merit. See 974 F. Supp. 817, 819 (M.D. Pa.

1997), rev’d on other grounds, 159 F.3d 1353 (3d Cir. 1998). The

court recognized that exhaustion could be excused where it would

be futile. See id. In Snisky, the court found that the BOP

“unequivocally” would deny the petitioner’s relief, and he would

return to the district court after the denial. Thus, the court

addressed the claims on the merits.

Likewise, in Ferrante v. Bureau of Prisons, the court found

that if the petitioner’s claim were meritorious, he would be

released to a halfway house relatively soon; therefore,

dismissing the petition for lack of exhaustion would be futile. 

See 990 F. Supp. 367, 370 (D.N.J. 1998)(citing Snisky, 974 F.

Supp. at 819-20). Further, the court held that the petitioner’s

claim was clearly without merit, so that the exhaustion issue

need not be reached. See id. See also Fraley v. Bureau of

Prisons, 1 F.3d 924, 925 (9th Cir. 1993)(stating that exhaustion

12

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 12 of 20 PageID: 100
was not required because it was futile, as Regional Director

would “almost certainly” have denied request, and term of

imprisonment was completed).

Here, this Court finds that, although Floyd had an

opportunity to exhaust his administrative remedies, he failed to

do so. Floyd filed a BP-9 administrative remedy with the Warden

at FCI Fort Dix on or about June 24, 2011, at about the same time

as he filed his habeas petition with this Court. His BP-9 asked

that he be transferred to FMC Devens and alleged that the BOP is

relying on inaccurate or incomplete records concerning his mental

health concerns. The Warden denied Floyd’s BP-9 administrative

remedy on July 8, 2011, noting that Floyd’s security level or

Care Level 1 can be addressed at FCI Fort Dix and that the

decision not to place Floyd at the judicially recommended

facility was based on such factors as institution population

levels, as well as his security and supervision needs. Floyd has

not exhausted his administrative appeal process as set forth

above. (Moran Decl., ¶ 5, Ex. 2).

Floyd also has failed to demonstrate that exhaustion would

have been futile. Indeed, the BOP is in a better position to

review Floyd’s claim concerning a medical transfer to FMC Devens

consistent with its policy concerning medical designations and

transfers under the appropriate factors and circumstances in

Floyd’s case. Moreover, at the time he filed his BP-9

13

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 13 of 20 PageID: 101
administrative remedy, Floyd did not indicate what information

was inaccurate or incomplete regarding his mental health issues.

Clearly, under the factual circumstances in this case, the goals

of the exhaustion doctrine likely would have been met had Floyd

employed the administrative remedy steps for the BOP to review

his situation.

Further, there is no imminent release date or other

immediate concerns that would implicate the futility of

administrative review in this case. Accordingly, Floyd’s habeas

petition will be denied without prejudice for failure to exhaust

his administrative remedies. See Lindsay v. Williamson, 271 Fed.

Appx. 158, 160 (3d Cir. 2008); Craig v. Zickefoose, Civil No.

09–6513, 2010 WL 234908 (D.N.J. Jan.15, 2010); Shoup v. Schultz,

Civil No. 09–0585, 2009 WL 1544664, at *4 (D.N.J. June 2, 2009);

Breazeale v. Shultz, Civil No. 09–2118, 2009 WL 1438236 (D.N.J.

May 19, 2009).

C. Lack of Subject Matter Jurisdiction

Notwithstanding Floyd’s failure to exhaust his

administrative remedies, this Court alternatively finds that his

habeas petition should be dismissed for lack of subject matter

jurisdiction.

A habeas petition is the proper mechanism for an inmate to

challenge the “fact or duration” of his confinement, Preiser v.

Rodriguez, 411 U.S. 475, 498-99 (1973), including challenges to

14

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 14 of 20 PageID: 102
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, 544 U.S. 74 (2005).

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); Barden v.

Keohane, 921 F.2d 476, 478-79 (3d Cir. 1990). 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 (3d Cir.2005)(involving community-based correctional

center transfers). 

In this case, however, Floyd’s challenge regarding his

transfer to FMC Devens does not affect the fact or the length of

his incarceration. Consequently, habeas relief is unavailable to

him. See Ganim v. Federal Bureau of Prisons, 235 Fed. Appx. 882,

884 (3d Cir. 2007)(holding that Ganim’s challenge to the BOP's

failure to transfer him from FCI Fort Dix to the Federal

Correctional Camp at Otisville, New York, was not cognizable

under § 2241 and that this Court erred by failing to dismiss

Ganim’s § 2241 petition for lack of jurisdiction); Bronson v.

15

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 15 of 20 PageID: 103
Demming, 56 Fed. Appx. 551, 553-54 (3d Cir. 2002)(unpubl.). See

also Casanova v. Schultz, Civil No. 09-3754, 2010 WL 760560 at

*3-*4 (D.N.J. Mar. 2, 2010)(habeas petition dismissed for lack of

jurisdiction because the inmate’s challenges to his transfer and

custody level classification di not affect the fact or duration

of his confinement); Forman v. Bureau of Prisons, Civil No. 10-

1260, 2010 WL 3881415 (D.N.J. Sept. 27, 2010)(same); Wilson v.

Zickefoose, Civil No. 10-2783, 2010 WL 5317333 (D.N.J. Dec. 20,

2010)(habeas petition dismissed for lack of jurisdiction where

inmate’s challenge to the BOP’s application of a Sex Offender PSF

regarding his security classification did not affect the fact or

duration of his confinement).

The Court of Appeals for the Third Circuit has explained

that:

whenever the challenge ultimately attacks the “core of

habeas” the validity of the continued conviction or the fact

or length of the sentence challenge, however denominated and

regardless of the relief sought, must be brought by way of a

habeas corpus petition. Conversely, when the challenge is

to a condition of confinement such that a finding in

plaintiff’s favor would not alter his sentence or undo his

conviction, an action under § 1983 is appropriate.

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). For example,

in Bronson, petitioner brought habeas petitions to challenge the

constitutionality of administrative decisions which placed him in

a prison restricted housing unit. See Bronson, 56 Fed. Appx. at

552. The court of appeals rejected petitioner’s argument that he

may challenge the conditions of confinement in a habeas petition,

16

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 16 of 20 PageID: 104
since no matter what the outcome of the habeas petition, the fact

or length of petitioner’s incarceration would not be affected.

See id. at 554.

Also, in Jamieson v. Robinson, the Third Circuit noted that

the relief requested by petitioner “would not serve to diminish

the length of his incarceration,” but rather sought “only to

alter the conditions of his confinement.” 641 F.2d 138, 141 (3d

Cir. 1981). The Third Circuit followed United States Supreme

Court precedent in Preiser, to note that the district court was

incorrect in finding that petitioner’s claims challenging the

availability of work release programs in prison sounded in

habeas. See Jamieson, 641 F.2d at 141. Nevertheless, the court

of appeals found that despite this error, petitioner’s claims

were subject to dismissal. See id. See also Cohen v. Lappin,

402 Fed. Appx. 674, 676 (3d Cir. 2010)(“... Cohen’s challenge to

his security designation and custody classification [do not

challenge the basic fact or duration of his imprisonment] ... In

the absence of the type of change in custody level at issue in

Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3d Cir.2005),

such an objection is simply not a proper challenge to the

‘execution’ of a sentence cognizable in a § 2241 proceeding.”).

In the present case, Floyd’s claim for a transfer to FMC

Devens due to his alleged preexisting mental health condition

plainly involves conditions of prison life, namely, the place of

17

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 17 of 20 PageID: 105
his confinement, not the fact or duration of his incarceration. 

Floyd’s designation to a federal correctional institution rather

than the FMC Devens does not translate into a necessarily more

restrictive custody level that would represent a “quantum change”

in the level of his custody. See Ganim, 235 Fed. Appx. at 884. 

Nor is Floyd’s requested designation or transfer similar to the

situation presented in Woodall v. Fed. Bureau of Prisons, 432

F.3d 235 (3d Cir. 2005), where the Third Circuit ruled that

petitioner’s challenge to the BOP’s decision regarding his

placement in a community-based correctional center (“CCC”) could

be raised in a habeas action because there were many distinctions

between a traditional correctional facility and a CCC that

impacted the execution of Woodall’s sentence. Namely, the court

noted that at CCCs, unlike in prison, inmates may be eligible for

short-term releases for daily work in the community, overnight or

weekend passes, and longer furloughs. See Woodall, 432 F.3d at

243. This Court does not discern such distinctions between

Floyd’s designation to FCI Fort Dix or FCI Allenwood (where he

presently is confined) from FMC Devens, because Floyd would be

confined at the same security level in each of those facilities. 

There is no “quantum change” in the level of his custody at FCI

Allenwood or FMC Devens. Consequently, Floyd’s claims are more

properly brought in an action under the Declaratory Judgments

Act, 28 U.S.C. §§ 2201-2202, or in a civil rights complaint under

18

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 18 of 20 PageID: 106
Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).3

Therefore, upon careful review of the petition as discussed

above, this Court concludes that Floyd does not seek speedier or

immediate release from custody, nor does he challenge the

legality of his present incarceration. Rather, Floyd simply

disputes his prison facility designation, which is more akin to a

challenge regarding the conditions of his confinement. 

 To the extent that Floyd argues that his classification 3

deprives him of liberty without due process in violation of the

Fifth Amendment, his claims would appear to be without merit. 

See, e.g., Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum

v. Fano, 427 U.S. 215, 224-25 (1976); Montanye v. Haymes, 427

U.S. 236, 242 (1976) (“As long as the conditions or degree of

confinement to which the prisoner is subjected is within the

sentence imposed upon him and is not otherwise violative of the

Constitution, the Due Process Clause does not in itself subject

an inmate’s treatment by prison authorities to judicial

oversight.”); Moody v. Daggett, 429 U.S. 78, 88 n. 9

(1976)(noting that prison classification and eligibility for

rehabilitative programs in the federal prison system are matters

delegated by Congress to the “full discretion” of federal prison

officials, see 18 U.S.C. § 4081, and thus implicate “no

legitimate statutory or constitutional entitlement sufficient to

invoke due process”); Wesson v. Atlantic County Jail Facility,

2008 WL 5062028, *6 (D.N.J. Nov. 26, 2008)(it is well established

that an inmate has no liberty interest in a particular custody

level or place of confinement). See also Sandin v. Connor, 515

U.S. 472, 484-86 (1995)(holding that a liberty interest is

implicated only where the action creates “atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life” or creates a “major disruption in his

environment”); Kentucky Dept. of Corrections v. Thompson, 490 U

.S. 454, 463 (1989)(holding that a liberty interest arises only

where a statute or regulation uses “explicitly mandatory

language” that instructs the decision-maker to reach a specific

result if certain criteria are met). Nevertheless, this Court

makes no ruling on the merits of Floyd’s due process claim in

this Opinion.

19

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 19 of 20 PageID: 107
Consequently, the petition may be alternatively dismissed for

lack of subject matter jurisdiction.

CONCLUSION

Based on the foregoing, Respondent’s motion to dismiss the

petition (Docket entry no. 12) will be granted, and this petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is

hereby dismissed without prejudice for Petitioner’s failure to

exhaust administrative remedies. Alternatively, the petition

should be dismissed for lack of subject matter jurisdiction. An

appropriate Order accompanies this Opinion.

 s/ Jerome B. Simandle 

JEROME B. SIMANDLE, Chief Judge

United States District Court

Dated: February 28, 2012

20

Case 1:11-cv-03593-JBS Document 14 Filed 02/29/12 Page 20 of 20 PageID: 108