Opinion
5:22cv243-TKW-HTC
10-31-2022
SHAWN D. GIBSON, Petitioner, v. KENIN D. PISTRO, KENDES ARCHER, Respondents.
REPORT AND RECOMMENDATION
HOPE THAI CANNON, MAGISTRATE JUDGE
Petitioner, Shawn Gibson, proceeding pro se, initiated this matter by filing a petition under 28 U.S.C. § 2241, ECF Doc. 1, and paying the filing fee, ECF Doc. 2. The Court has screened the petition under Rule 4 of the Rules Governing § 2254 Cases,and finds Petitioner has not stated a claim under § 2241. Therefore, the undersigned recommends the action be DISMISSED pursuant to Rule 4.
The Rules Governing § 2254 Cases apply to cases under 28 U.S.C. § 2241 as well. N.D. Fla. Loc. R. 5.7(C).
Gibson is a prisoner at FCI Marianna challenging the prison's refusal to treat his opioid use disorder with methadone rather than vivitrol and its refusal to start treatment earlier than a year before his release. Such a claim, however, which arises out of the conditions of confinement, is not cognizable in habeas because such a claim does not entitle petitioner to be released from prison. See Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“constitutional claims that merely challenge the conditions of a prisoner's confinement, whether the inmate seeks monetary or injunctive relief, fall outside [the] core” of habeas corpus). The sole function of habeas corpus “is to provide relief from unlawful imprisonment or custody, and it cannot be used for any other purpose.” Cook v. Hanberry, 592 F.2d 248, 249 (5th Cir. 1979), revised by 596 F.2d 658 (5th Cir.1979).Thus, “[h]abeas corpus is not available to prisoners complaining only of mistreatment during their legal incarceration.” Id.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the Fifth Circuit before the close of business on September 30, 1981.
Instead, such allegations by a federal prisoner may be appropriate in a civil rights complaint filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See Helbig v. United States, No. 4:18-CV-449-WS/MJF, 2019 WL 3976571, at *2 (N.D. Fla. July 31, 2019), report and recommendation adopted, No. 4:18CV449-WS/MJF, 2019 WL 3976314 (N.D. Fla. Aug. 22, 2019) (finding claim of improper dental care is not cognizable under § 2241, and should be brought under Bivens because even if petitioner were to prevail she would not be entitled to a reduction in her sentence); Rodriguez v. Wells, 2009 WL 1024575, at *2-3 (S.D. Ga. Apr. 14, 2009) (holding that a Bivens action, rather than a 2241 petition, is the proper vehicle for a federal inmate to challenge his ineligibility to participate in drug treatment programs); Muhummad v. William-Humble, 380 Fed.Appx. 925, 926-27 (11th Cir. 2010) (Bivens permits “injured plaintiffs [to] bring a cause of action for damages against federal officers based on violations of their constitutional rights,” much like a 1983 suit permits claims against state officials) (citing Behrens v. Regier, 422 F.3d 1255, 1263 & n.15 (11th Cir. 2005)).
Petitioner may file a new action under Bivens by filing a complaint on the right Court form and paying the $402.00 filing fee or filing a motion to proceed in forma pauperis. The Court, however, is not making any determination as to whether such a claim would survive screening under the Prison Litigation Reform Act, 28 U.S.C. § 1915 , et seq.
Accordingly, it is RECOMMENDED, that:
1. This action be DISMISSED pursuant to Rule 4 of the Rules Governing § 2254 Cases.
2. The clerk of court be directed to close the file.
NOTICE TO THE PARTIES
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on the unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1.