NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 14-1403
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DARRELL JAMES PARKS,
Appellant
v.
A. JORDAN, Discipline Hearing Officer
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-13-cv-02912)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 1, 2014
Before: HARDIMAN, NYGAARD and ROTH, Circuit Judges
(Filed: August 4, 2014)
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OPINION
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PER CURIAM
Appellant Darrell Parks, a federal inmate, appeals the District Court’s denial of his
habeas petition filed pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will
modify the District Court’s judgment and affirm it as modified.
On October 25, 2012, a correctional officer (“CO”) reportedly discovered Parks
masturbating in his cell. The CO reportedly instructed him to stop, but Parks failed to do
so. That same day, Parks was charged with “Engaging in a Sexual Act” and “Refusing to
Obey a Direct Order.” After a subsequent hearing before the Unit Discipline Committee
(“UDC”), the charges were referred to a Disciplinary Hearing Officer (“DHO”). At a
hearing before the DHO, Parks denied engaging in a sexual act. He asserted that he may
have made “inappropriate or disrespectful comments” to the CO, and that he put up a
sheet to block her view; the disciplinary report, he maintained, was in retaliation for those
actions. The DHO determined that, based on the greater weight of the evidence, Parks
committed the violation of “Engaging in a Sexual Act.” Parks’ sanctions included, inter
alia, 30 days of disciplinary segregation.
Parks filed his § 2241 petition alleging that he was denied due process of law in
his disciplinary hearings and, as a result, faces potential collateral consequences,
including the denial of parole. Parks further alleged that the disciplinary proceedings
were held within hearing range of other prisoners and staff, thereby violating his right to
privacy. As relief, he sought expungement of his disciplinary records and an injunctive
order requiring the Bureau of Prisons (BOP) to record (by audio) all disciplinary
proceedings henceforth.
The DHO, the respondent below, argued that the § 2241 petition should be
dismissed for lack of jurisdiction because Parks did not lose any good time credits, and,
therefore, the petition did not directly implicate the fact or duration of his confinement,
2
which is the “essence of habeas.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
The District Court determined that, because Parks alleged he was innocent of the
disciplinary infraction, his due process claims arguably affected the duration of his
confinement to the extent they had merit. It thus retained jurisdiction with respect to
those claims, and ultimately denied them on the merits. The District Court dismissed the
claim concerning the violation of Parks’ right to privacy after determining that it could
not be raised in a § 2241 petition. This appeal ensued.1
We have jurisdiction pursuant to 28 U.S.C. § 1291. On appeal, the DHO argues
that the District Court erred in failing to dismiss the entire § 2241 petition for lack of
jurisdiction. We exercise plenary review in determining whether the District Court was
vested with subject matter jurisdiction. Bracken v. Matgouranis, 296 F.3d 160, 162 (3d
Cir. 2002).
Section 2241 authorizes a federal district court to exercise jurisdiction where the
federal prisoner is challenging the execution, rather than the validity, of his sentence. See
Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012). We have noted that “the precise
meaning of ‘execution of the sentence’ is hazy.” Woodall v. Fed. Bur. of Prisons, 432
F.3d 235, 242 (3d Cir. 2005). Nevertheless, it must involve a challenge to the manner in
which the sentence is being “put into effect” or “carr[ied] out.” Id. at 243.
1On appeal, Parks does not challenge the District Court’s dismissal of his right to privacy
claim. We therefore limit our review to the due process claims. See Kost v.
Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (failure to raise an issue in an opening brief
waives the issue on appeal).
3
Parks does not allege that the BOP is failing to “put into effect” or “carry out” his
sentence as imposed in the sentencing judgment. Rather, his claim is that he will be
denied parole as a consequence of his disciplinary infraction. Parks provided evidence
that he was twice denied parole, despite being eligible, because he continued to receive
disciplinary infractions. Specifically, the Parole Commission indicated that “[P]arole
should be granted at this time. . . . However, a departure from the guidelines at this
consideration is found warranted because . . . [y]ou are a more serious risk than shown by
your point score because you have failed to maintain clear conduct while incarcerated.”
Appellant’s Reply Br. at 16. Parks argues, therefore, that his due process claims directly
affect the duration of his confinement.
The fact that the disciplinary infraction may affect Parks’ chances at parole is
insufficient to bring his due process claims within the ambit of habeas. See Cardona, 681
F.3d at 537 (where a claim will not “necessarily result in a change to the duration of a
sentence,” it is not properly brought in habeas) (emphasis in original); see also Leamer v.
Fauver, 288 F.3d 532, 543 (3d Cir. 2002) (“[T]he fact that a prisoner’s success in the
litigation might increase the chance for early release does not, in itself, transform the
action into one for habeas corpus.”) (quoting Georgevich v. Strauss, 772 F.2d 1078,
1087 (3d Cir. 1985)). The Supreme Court made this clear in Wilkinson v. Dotson, 544
U.S. 74 (2005), in which the petitioners sought to attack their parole-eligibility and
parole-suitability proceedings. The Court held that such an action does not lie at “the
core of habeas corpus” where success “does not mean immediate release from
4
confinement or a shorter stay in prison” but rather, “at most [means] new eligibility
review, which at most will speed consideration of [parole].” Id. at 82 (emphasis in
original). Likewise, even if Parks is successful at expunging the disciplinary infraction at
issue, parole is not a certainty; there are other factors which could affect his chances for
parole, including other disciplinary infractions.2 Claims, such as Parks’, which if
successful “would not necessarily spell immediate or speedier release,” are not
cognizable in habeas, but may be brought in a civil rights action. Id. at 81 (emphasis in
original); see also Leamer, 288 F.3d at 542 (“[W]hen 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, [a civil rights action] is appropriate.”).
Based on the foregoing, we conclude that Parks’ due process claims were not
properly brought in a habeas petition under § 2241, and as such, the District Court lacked
subject matter jurisdiction over the petition. Dismissal should be without prejudice to
Parks’ ability to pursue his claims in a civil rights action pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971).3 Accordingly, we will modify the
District Court’s judgment to reflect a dismissal without prejudice for lack of jurisdiction,
and we will affirm the judgment as modified.
2Parks maintains that the disciplinary incident at issue is his only infraction since his last
parole hearing in 2012. The DHO has provided evidence, however, indicating that Parks
has received four additional disciplinary infractions since October 2012, including
another one for “Engaging in a Sexual Act.”
3 We express no opinion as to the merits of such an action.
5