FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 23, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
LEROY BUHL,
Petitioner - Appellant,
No. 14-1389
v.
(D. Colorado)
D. BERKEBILE, Warden, (D.C. No. 1:14-CV-01476-LTB)
Respondent - Appellee.
ORDER AND JUDGMENT*
Before HARTZ, McKAY, and MATHESON, Circuit Judges.
*
After examining the briefs and the 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)(2) and 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Leroy Buhl, a federal inmate proceeding pro se, appeals the dismissal without
prejudice of his application for relief under 28 U.S.C. § 2241. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
Mr. Buhl’s application under § 2241 alleged that in April 2014 he was placed in
the special housing unit of the United States Penitentiary, Administrative Maximum in
Florence, Colorado, based on an erroneous incident report and without a timely
disciplinary proceeding, in violation of a Bureau of Prison regulation. He claimed that
his equal-protection and due-process rights were violated and that he was deprived of
liberty interests. As relief, he requested release from the special housing unit or transfer
from the prison and expungement of the incident report. He also filed a motion for leave
to proceed in forma pauperis (ifp) on a form for use “in a habeas corpus action.” R. at 10
(full capitalization omitted).
On May 27, 2014, a magistrate judge for the United States District Court for the
District of Colorado ordered Mr. Buhl (1) to file his pleading on a court-approved
prisoner-complaint form because conditions-of-confinement claims cannot be raised in a
habeas corpus proceeding; and (2) to file a correct ifp form under 28 U.S.C. § 1915 and
include an authorization to calculate and disburse filing-fee payments from his inmate
account. The order warned that the action would be dismissed without further notice if
Mr. Buhl failed to cure the deficiencies within 30 days.
On June 24 Mr. Buhl filed a “Motion to Compel the Respondent to Cease/Desist
Delays in Delivering Legal Mails,” alleging that he did not receive a copy of the
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magistrate judge’s order until June 19. Id. at 22. He also filed an unsuccessful petition in
this court for a writ of mandamus to direct the district court to order the warden to
transfer him to another prison. On July 1 the magistrate judge granted Mr. Buhl an
extension of time until July 16 to cure the deficiencies in his pleadings. The next day, he
filed a motion asking the magistrate judge to recuse from further service in this case; and
on July 9 he filed a second motion for leave to proceed ifp that was not on the proper
form. On September 5, Mr. Buhl having failed to cure the deficiencies within the time
allowed, the district court dismissed the action without prejudice and denied him
permission to proceed ifp on appeal.
Mr. Buhl argues on appeal that he properly brought his claim under § 2241
because this court has previously heard similar challenges to prison disciplinary action.
He cites Gamble v. Calbone, 375 F.3d 1021 (10th Cir. 2004), in which we held that the
appellant prisoners were entitled to habeas relief because revocation of their earned
credits based on unsupported disciplinary convictions violated due process, see id. at
1023, 1026. And he contends that he should not have been required to submit his
pleadings on a form for prisoner complaints rather than a habeas form because we have
acknowledged “that § 2241 proceedings, and appeals of those proceedings, are not ‘civil
actions’ for purposes of 28 U.S.C. §§ 1915(a)(2) and (b).” McIntosh v. U.S. Parole
Comm’n, 115 F.3d 809, 812 (10th Cir. 1997); see In re Phillips, 133 F.3d 770, 771 (10th
Cir. 1998). “We review the district court’s dismissal of a § 2241 habeas petition de
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novo.” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation
marks omitted).
We are not persuaded. The district court correctly ruled that Mr. Buhl had failed
to state grounds for relief under § 2241. “In this circuit, a prisoner who challenges the
fact or duration of his confinement and seeks immediate release or a shortened period of
confinement, must do so through an application for habeas corpus. In contrast, a prisoner
who challenges the conditions of his confinement must do so through a civil rights
action.” Palma–Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (citation
omitted). Moreover, “a request by a federal prisoner for a change in the place of
confinement is properly construed as a challenge to the conditions of confinement and,
thus, must be brought pursuant to Bivens [v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971)].” Id. (brackets and internal quotation marks
omitted). Gamble is not to the contrary. The reason the prisoners in that case could seek
relief in habeas is that the loss of earned credits would delay their release from prison.
See Gamble, 375 F.3d at 1026; McIntosh, 115 F.3d at 811 (deprivation of good-time
credits may be challenged under § 2241). Unlike the prisoners in Gamble, Mr. Buhl does
not allege the deprivation of such credits or otherwise challenge the duration of his
confinement. Instead, he alleges that he was placed in a special housing unit and asks to
be released into the general prison population or transferred from the prison. Because
Mr. Buhl challenges only the conditions of his confinement, the district court did not err
in ruling that his claim could not proceed in habeas. This issue having been resolved, it
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follows that Mr. Buhl could not properly submit his claim on a form for habeas
proceedings.
We AFFIRM the judgment of the district court. And because Mr. Buhl has not
made a “reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal,” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991), we
DENY his motion to proceed ifp.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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