UNITED STATES COURT OF APPEALS TENTH CIRCUIT

TROY LAWRENCE, SR., Petitioner - Appellant,

v. JOHN C. OLIVER, Respondent - Appellee. No. 14-1353 (D.C. No. 1:14- CV-01648-LTB) (D. Colo.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY, and MATHESON , Circuit Judges.

Troy Lawrence, Sr., a federa l inmate appearing pro se, 1 appeals the district court’s denial of his habeas petition under 28 U.S.C. § 22 41 and his motion to alter or amend the

* After examining Mr. Lawrence’s brief a nd the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1 Because Mr. Lawrence is proceeding pro se, we construe his filings liberally. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis , 596 F.3d 1198, 1201 n.2 (10th Cir. 2010). FILED United States Court of Appeals Tenth Circuit 

### February 3, 2015
Elisabeth A. Shumaker Clerk of Court-2- judgment under Federal Rule of Civil Procedure 59(e). 2 Mr. Lawrence seeks to proceed in forma pauperis (“ ifp ”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court and dismiss Mr. Lawrence’s petition. Because M r. Lawrence’s petition should be dismissed on jurisdictional grounds and the district cour t dismissed it with prejudice, we remand to the district court to enter di smissal without prejudice. We grant Mr. Lawrence’s motion to proceed ifp

. I. BACKGROUND Mr. Lawrence is serving a life sentence without the possibility of parole at the United States Penitentiary Administrativ e Maximum Prison (“ADMAX”) in Florence,

2 Mr. Oliver claims we lack jurisdiction to review the district court’s denial of Mr. Lawrence’s Rule 59(e) motion because (1) M r. Lawrence’s notice of appeal was filed before he filed his Rule 59(e) motion, and (2) Mr. Lawrence did not file a second notice of appeal after the district court denied the motion on September 23, 2014. Aplee. Br. at 2, 6. But on November 7, 2014, within 60 days of the district court’s order denying his Rule 59(e) motion, Mr. Lawrence filed his open ing brief in this appeal and specifically challenged the denial of his Rule 59(e) motion. See Fed. R. App. P. 4(a)(1)(B)(iii) (providing a 60-day time period for filing a notic e of appeal if the United States, a United States agency, or a United States officer or employee is a party to the lawsuit); Aplt. Br. at 2-4. Mr. Lawrence’s opening brief can be considered the “functional equivalent” of a notice of appeal from the or der denying his Rule 59(e) mo tion because it provides the notice required by Federal Rule of Appellate Procedure 3(c)(1). See Smith v. Barry , 502 U.S. 244, 248-49 (1992) (“If a document file d within the time specified by Rule 4 gives the notice required by Rule 3, it is effective as a notice of appeal.”). Under Rule 3(c)(1), a notice of appeal must “specify the party or parties taking the appeal . . . ; designate the judgment, order, or part thereof being appeal ed; and . . . name the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1 ). Mr. Lawrence’s brief meets all of these requirements. We therefore have jurisdic tion to review the Rule 59(e) motion.-3- Colorado. Mr. Lawrence was prev iously incarcerated at the Un ited States Penitentiary in Pollock, Louisiana (“ USP-Pollock”). On March 25, 2013, guards found a cellpho ne in Mr. Lawrence’s locker at USPPollock. After a disciplinary hearing on May 1, 2013, which Mr. Lawrence did not attend, the disciplinary hearing officer (“DHO”) found Mr. Lawrence committed the prohibited act of “Possession, Manufacture, Intr oduction, or Loss of a Hazardous Tool.” ROA, Vol. I at 18. Mr. Lawrence’s sancti on was 30 days of discip linary segregation and loss of 180 days of email and telephone privileges. On June 26, 2013, the Bureau of Prisons (“BOP”) held a hearing on whether Mr. Lawrence should be transf erred to the Special Management Unit (“SMU”). Mr. Lawrence appeared by videocon ference. The hearing admi nistrator found Mr. Lawrence qualified for placement in the SMU because hi s possession of a cellphone “threatened the security and safety of staff and inmates at USP Pollock.” Id. at 22. Mr. Lawrence was transferred to the SMU. Based on these disciplinary actions, M r. Lawrence filed a habeas petition under § 2241 in the Western District of Louisian a. The Western District of Louisiana transferred the petition to the District of Colorado because Mr. Lawrence was incarcerated at ADMAX when he filed his petition. See Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996) (“A petition under 28 U.S.C. § 2241 . . . must be filed in the district where the prisoner is confined.”). In his petition, Mr. Lawrence claimed the di sciplinary measures taken against him,-4- including placement in the SMU, violated his due process ri ghts because he was denied the opportunity to attend the in itial disciplinary hearing. He requested the court to order the BOP to expunge his record of the incident report and return him to the general population. The district court denied Mr. Lawrence’s petition, concluding Mr. Lawrence’s claims are not cognizable in a § 2241 petiti on because the punishme nt imposed did “not inevitably affect the duration of [Mr. Lawrence’s] sentence.” Id. at 102. Rather, the court concluded Mr. Lawrence’s petition merely challenged his conditions of confinement and therefore should be brought in a civil rights action. 3 The court dismissed his case with prejudice. Mr. Lawrence timely filed a motion for re consideration under Federal Rule of Civil Procedure 59(e), arguing the district c ourt “overlooked important aspects” of his claim and failed to construe his petition liberally . ROA, Vol. II at 124. Specifically, he argued the court denied him the opportunity before the district court to show his placement in the SMU is an “atypical and si gnificant hardship,” the DHO abused his

3 The court also concluded, even if it c onstrued Mr. Lawrence’s petition as a civil rights action challenging his conditions of confinement, Mr. Lawrence’s loss of privileges, placement in disciplinary segreg ation, and placement in the SMU did not implicate a valid liberty interest. ROA, Vo l. I at 103-04. Because we hold a federal court lacks jurisdiction to consider Mr. Lawren ce’s § 2241 petition, we do not address the merits of his civil rights action.-5- discretion in not sanctioning him with loss of good conduct time, 4 and the disciplinary actions affected his sentence because they preclude his eligibility for the Presidential Clemency Program. ROA, Vol. II at 124- 30. He further argued, because of the disciplinary actions against him, he will be su bject to a harsher punishment if he commits another violation. The district court de nied the motion, concluding Mr. Lawrence’s arguments either were adequately addresse d in the court’s order denying his habeas petition, were legally frivolous or too speculative, or were new arguments inappropriately raised in a motion for reconsideration. Mr. Lawrence now appeals the district c ourt’s denial of his habeas petition and Rule 59(e) motion. He contends the district court erred in concl uding he was challenging only the conditions of his conf inement and not the duration of his sentence. He argues the court did not give him an adequate opp ortunity to show cause why the court has jurisdiction. Specifically, he asserts the disciplinary actions prevent him from obtaining a shorter sentence through the Presidential Clemency Program and cause collateral consequences, such as harsher punishments fo r future disciplinary violations. He urges this court to vacate the judgment and remand to the district court.
II. DISCUSSION When a district court has denied a ha beas petition under 28 U.S.C. § 2241, we

4 On appeal, Mr. Lawrence does not assert the DHO abused its discretion in failing to sanction him with loss of good time credit. This argument is therefore forfeited and will not be considered. See Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007).-6- review the court’s legal conclusions de no vo and its factual findings for clear error. Standifer v. Ledezma , 653 F.3d 1276, 1278 (10th Cir. 2011). A § 2241 petition “attacks the execution of a sentence ra ther than its validity.” Brace v. United States , 634 F.3d 1167, 1169 (10th Cir. 2011) (quotations omitted). A proper § 2241 petition c oncerns “‘the fact or duration of a prisoner’s confinement and seeks the remedy of immediate release or a shor tened period of confinem ent. In contrast, a civil rights action . . . attacks the conditions of the prisoner’s confinement and requests monetary compensation fo r such conditions.’” McIntosh v. U.S. Parole Comm’n , 115 F.3d 809, 812 (10th Cir. 1997) (o mission in original) (quoting Rhodes v. Hannigan , 12 F.3d 989, 991 (10th Cir. 1993))

. “‘It is well-settled law that prisoners who wish to challenge only the conditions of their confinement . . . mu st do so through civil rights lawsuits . . . not through fede ral habeas proceedings.’” Palma-Salazar v. Davis , 677 F.3d 1031, 1035 (10th Cir. 2012) (omi ssions in original) (quoting Standifer , 653 F.3d at 1280). Thus, to state a claim under § 2241, a petitione r must challenge the fact or duration—and not the conditions—of confinement. The district court correctly determin ed Mr. Lawrence challenged his prison conditions. Mr. Lawrence’s petition addresse s his placement in the SMU and loss of phone and email privileges. He does not allege he should be immediately released or that any prison official has imperm issibly increased the duration of his sentence. His petition seeks only the expungement of the incident from his record and a return to general population. Even under a liber al construction of Mr. Lawrence ’s claims, he has failed to-7- allege a valid basis for a § 2241 petition. We therefore agree with the district court that Mr. Lawrence’s recourse should be a civil rights suit. 5
The district court also did not abuse its discretion in denying Mr. Lawrence’s Rule 59(e) motion. See Ysais v. Richardson , 603 F.3d 1175, 1180 (10th Cir. 2010) (“We review a district court’s denial of a Fed. R. Civ. P. 59(e) motion fo r reconsideration under an abuse of discretion standard.”). “A Rule 59(e) motion . . . should be granted only to correct manifest errors of law or to present newly discovered evidence.” Phelps v. Hamilton , 122 F.3d 1309, 13 24 (10th Cir. 1997) ( quotations omitted). The district court correctly determined Mr. Lawrence’s argument s in his Rule 59(e) motion were either adequately addressed in its order denying his petition or were ne w arguments improperly raised for the first time in a Rule 59(e) motion. Even if we could address Mr. Lawrence’ s new arguments, they fail to support a § 2241 petition. First, Mr. Lawrence’s argument that the disciplinary actions affect his ability to apply for clemency is far too sp eculative for habeas re lief. Clemency is discretionary, and Mr. Lawrence does not assert he should receive such relief. Second, Mr. Lawrence does not explain how the poten tial for future punish ment will affect the fact or duration of his sentence as oppose d to his conditions of confinement.

5 Prisoners may sue federal officers in their individual capacity for damages related to a constitutional violation. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics , 403 U.S. 338, 395-97 (1971). Prisoners may also seek injunctive relief against federal offici als in their official capacity. See Ex Parte Young , 209 U.S. 123, 151-56 (1908); Simmat v. U.S. Bureau of Prisons , 413 F.3d 1225, 1231-33 (10th Cir. 2005).-8- The district court correc tly denied Mr. Lawrence’s pe tition and dismis sed for lack of jurisdiction. The district court dismisse d the petition with prejudice, but dismissals based on lack of jurisdiction should be entered without prejudice. See Brereton v. Bountiful City Corp. , 434 F.3d 1213, 1218 (10th Cir. 2006) (“[O]ur prior, long-standing line of cases require[s] that a dismissal for l ack of jurisdiction be without prejudice.”). Accordingly, we remand to the district cour t to amend the judgment and enter dismissal without prejudice. We grant Mr. Lawrence’s request to proceed ifp

. III. CONCLUSION We affirm the district court’s dismi ssal of Mr. Lawrence’s petition for lack of jurisdiction. We remand to th e district court to enter a ju dgment of dismissal without prejudice. Mr. Lawrence’s request to proceed ifp is granted.
ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge