HLD-105 (February 28, 2011) PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-4397
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JAMES MURRAY, a/k/a James Hines,
Appellant
v.
B.A. BLEDSOE; D. YOUNG, ASSOCIATE WARDEN;
MR. BREWER, UNIT MANAGER
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3:10-cv-02309)
District Judge: Honorable Richard P. Conaboy
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 28, 2011
Before: MCKEE, Chief Judge, ALDISERT
and WEIS Circuit Judges.
(Filed: June 10, 2011)
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OPINION
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PER CURIAM.
In November 2010, James Murray, a federal prisoner
currently housed in the Special Management Unit (“SMU”) at
the United States Penitentiary in Lewisburg, Pennsylvania,
filed in the District Court a pro se petition for judicial review
of a decision of the Federal Bureau of Prisons (“BOP”).
Murray‟s petition claimed that he has a constitutional right
under the Ninth Amendment to choose his SMU cellmate.
Before filing in the District Court, Murray had sought an
administrative remedy from the BOP, alleging a right to
choose his cellmate and requesting that the BOP allow him to
do so. The BOP found Murray had no such right and denied
his request. In his petition for judicial review, Murray
requested that the District Court set aside the BOP‟s
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decision.1 The District Court denied Murray‟s petition as
meritless. Murray now appeals from the District Court‟s
judgment; requests that we take judicial notice of certain case
law, pleadings, and other documents, and appoint counsel on
his behalf; and moves to amend deficient judicial statements.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and
may affirm the District Court‟s judgment on any basis
supported by the record. See Tourscher v. McCullough, 184
F.3d 236, 240 (3d Cir. 1999). Because this appeal does not
present a substantial question, we will summarily affirm the
1
Murray styled his petition as a challenge to the
BOP‟s decision under the Administrative Procedure Act
(“APA”). BOP decisions about where to house inmates,
however, are exempt from challenge under the APA. See 18
U.S.C. § 3625 (explaining that the APA‟s provisions for
judicial review of administrative agency decisions, at 5
U.S.C. §§ 701-06, do not apply to decisions made under 18
U.S.C. §§ 3621-26, including BOP decisions about where to
house inmates governed by 18 U.S.C. § 3621(b)). Perhaps
with this in mind, Murray‟s filing was docketed in the District
Court as a habeas petition. The filing was probably not a true
habeas petition because it did not challenge the “very fact or
duration” of Murray‟s imprisonment, see Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973), and would probably be
most accurately classified as an action under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971). How the petition is classified is not of great
importance, however, because the District Court properly
denied Murray‟s claim as lacking in merit.
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District Court‟s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir.
I.O.P. 10.6.
Murray argues that the Ninth Amendment “protects
rights that are „fundamental[,]‟” such as “rights to marry; to
raise a family; the right to an abortion[,]” and the right to
choose one‟s cellmate. Although there is some authority for
the proposition that the Ninth Amendment is a source of
fundamental rights, see Griswold v. Connecticut, 381 U.S.
479, 493 (1965) (Goldberg, J., concurring), no court of which
we are aware has held that the Ninth Amendment establishes
a right to choose one‟s cellmate. To the contrary, those courts
confronted with the question of whether inmates have a
constitutional right to choose a cellmate have held that no
such right exists. See Harris v. Greer, 750 F.2d 617, 618 (7th
Cir. 1984); see also Cole v. Benson, 760 F.2d 226, 227 (8th
Cir. 1985) (per curiam) (inmate has no Eighth Amendment
right to be placed in a particular cell). Accordingly, the
District Court properly denied this claim.
In his brief in opposition to summary action, Murray
advises that, since the time he filed his petition in the District
Court, he has been placed with a desirable cellmate. He still
wishes to proceed with the appeal, however, in order to
challenge the broader BOP policy disallowing prisoners to
choose their cellmates. Murray did not raise this broader
challenge in the District Court; therefore, it is waived on
appeal.
Because this appeal does not present a substantial
question, we will summarily affirm the District Court‟s
judgment. Murray‟s request for appointment of counsel,
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request to take judicial notice, and motion to amend deficient
judicial statements will be denied.
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