F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 31 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
ANDY RAEL,
Plaintiff - Appellant,
vs. No. 00-2145
JOE WILLIAMS, Warden, Lea County
Correctional Facility; GARY
JOHNSON, Governor, State of New
Mexico; ROBERT PERRY, Secretary
of Corrections; NEW MEXICO
CORRECTIONS DEPARTMENT,
State of New Mexico; WACKENHUT
CORRECTIONS CORPORATION, a
Florida Corporation; LEA COUNTY,
New Mexico; ATTORNEY GENERAL
FOR THE STATE OF NEW MEXICO,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV-00-0299-LH/WWD)
Submitted on the briefs: *
Andy Rael, pro se.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause therefore
is ordered submitted without oral argument.
Before BRORBY, KELLY, and MURPHY, Circuit Judges.
KELLY, Circuit Judge.
Plaintiff-Appellant, Andy Rael, appeals the dismissal, without prejudice, of
his habeas corpus action brought pursuant to 28 U.S.C. §2241 for failure to
exhaust state court remedies. We grant a certificate of appealability and affirm
the judgment as modified.
Mr. Rael challenges his incarceration in a privately-run prison facility in
Lea County, New Mexico (LCCF), on the grounds that it violates his
constitutional rights. Specifically, Mr. Rael alleges violations of his rights to due
process, equal protection, and the right to be free from cruel and unusual
punishment pursuant to Article II, §18 of the New Mexico Constitution and the
First, Eighth, and Fourteenth Amendments to the United States Constitution.
Mr. Rael claims that he is a third-party beneficiary of the contract between
the New Mexico Corrections Department (NMCD) and Lea County, as well as the
contract between Lea County and Wackenhut Corrections Corporation
(“Wackenhut”). He claims that his constitutional rights have been violated
because Lea County and Wackenhut have breached these contracts by failing to
ensure the proper classification of inmates and failing to provide a sufficient
number of properly trained and adequately experienced staff. Mr. Rael alleges
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that, as a result of these breaches, he has suffered serious and irreparable harm
and is therefore entitled to relief on the grounds that the Defendants, Governor
Gary Johnson, Secretary of Corrections Robert Perry, and the NMCD, violated the
terms of N.M. Stat. Ann. § 31-20-2(G) (Michie 1994 Repl. Pamp.) by failing to
adequately comply with NMCD standards for housing inmates at LCCF. Finally,
Mr. Rael claims that Lea County is not “in the business of providing correctional
or jail services to government entities.” Thus, he believes that the Lea County
contract to provide such services violates N.M. Stat. Ann. §33-1-17(B) (Michie
1998 Repl. Pamp.) and also infringes upon his rights under the First, Eighth, and
Fourteenth Amendments of the United States Constitution.
In Montez v McKinna , 208 F.3d 862, 864-65 (10th Cir. 2000), the court
held that a habeas petition challenging a transfer to a privately run prison may be
cognizable under § 2241, but rejected such a challenge on the merits without
allowing exhaustion, relying upon 28 U.S.C. § 2254(b)(2) as analogous authority.
Not at issue in Montez were the conditions of confinement in the private prisons.
See id. at 866 n.4 . The court further held that a certificate of appealability was
required for a § 2241 appeal. See Montez , 208 F.3d at 866-69.
We believe the same result is indicated here. Petitioner has raised a variety
of state law claims that are not cognizable in habeas. See Montez , 208 F.3d at
865. Though the Supreme Court has not set the precise boundaries of habeas
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actions, it has distinguished between habeas actions and those challenging
conditions of confinement under 42 U.S.C. § 1983. See Preiser v. Rodriguez , 411
U.S. 475, 499-500 (1973). We have endorsed this distinction and have
recognized that federal claims challenging the conditions of his confinement
generally do not arise under § 2241. See McIntosh v. United States Parole
Comm’n , 115 F.3d 809, 811-12 (10th Cir. 1997) (distinguishing between § 2241
actions and conditions of confinement suits); Carson v. Johnson , 112 F.3d 818,
820-21 (5th Cir. 1997) (same); Merritt v. Pugh , No. 00-1129, 2000 WL 770577, at
* 1 (10th Cir. June 15, 2000) (unpublished) (conditions of confinement claim not
properly brought under § 2241); Thompson v. True , No. 97-3275, 1998 WL
536383, at *1 (10th Cir. Aug. 18, 1998) (unpublished) (same); Murphy v. Brooks ,
No. 97-1175, 1997 WL 796485, at *1 (10th Cir. Dec. 31, 1997) (unpublished)
(same); United States v. Sisneros , 599 F.2d 946, 947 (10th Cir. 1979) (same as to
§ 2255).
Under Montez , the fact that an inmate is transferred to, or must reside in, a
private prison, simply does not raise a federal constitutional claim, though it may
be raised procedurally under § 2241. See Montez , 208 F.3d at 866 n.4; Pischke v.
Litscher , 178 F.3d 497, 500 (7th Cir. 1999). Thus, this claim should be dismissed
with prejudice; exhaustion of state court remedies is not required. See Montez ,
208 F.3d at 866 (relying on policy of § 2254(b)(2)).
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In view of the foregoing, we GRANT a certificate of appealability, and
AFFIRM the judgment of the district court as modified to dismiss the claim
cognizable under § 2241 with prejudice; all other claims contained in the petition
are dismissed without prejudice.
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