FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 7, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
WILLIE L. DAVIS,
Petitioner - Appellant,
v. No. 17-1145
(D.C. No. 1:17-CV-00679-LTB)
JACK FOX, (D. Colo.)
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Proceeding pro se,1 federal prisoner Willie Davis appeals the dismissal of his
28 U.S.C. § 2241 habeas petition. Because the district court lacked jurisdiction to
consider the merits of the petition, we affirm.
In his petition, Davis alleged that prison officers violated his procedural due
process rights when they failed to follow prison policy in impounding his personal
property. According to Davis, the officers impounded his property to retaliate against
*
After examining the brief and appellate record, this panel unanimously
determines that oral argument wouldn’t materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
1
We liberally construe Davis’ pro se filings. But it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
him for filing grievances against the respondent, rather than for an appropriate
disciplinary reason. As relief, Davis requested a show-cause order, an evidentiary
hearing, and an order directing his conditional release.
The district court sua sponte dismissed Davis’ habeas petition for two reasons.
First, the district court noted that Davis improperly asserted his due process claim
under § 2241. Second, the district court stated that even if it construed the claim as
“challenging conditions of confinement,” Davis’ claim “lack[ed] merit.” R. 26.
We review the district court’s disposition of a habeas petition de novo. See
Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).
Davis argues that he properly brought his claim under § 2241 in light of
Johnson v. Avery, 393 U.S. 483 (1963), and Wilwording v. Swenson, 404 U.S. 249
(1971) (per curiam), superseded by statute, Prison Litigation Reform Act of 1995,
110 Stat. 1321-71 (codified as amended at 42 U.S.C. § 1997e), as recognized in
Woodford v. Ngo, 548 U.S. 81 (2006).
We disagree. The “purpose of a § 2241 habeas proceeding is to allow a person
in custody to attack the legality of that custody.” Palma-Salazar, 677 F.3d at 1035.
Prisoners challenging the fact or duration of their confinement and seeking
immediate release or a shortened period of confinement “must do so through an
application for habeas corpus.” Id. But a prisoner “who challenges the conditions of
his confinement must do so through a civil rights action.” Id.
Davis’ due process claim doesn’t challenge the fact or duration of his
confinement; rather, it challenges the conditions of his confinement. Accordingly, the
2
district court correctly dismissed Davis’ § 2241 habeas petition.2 And neither
Johnson nor Wilwording suggests otherwise. In Johnson, a state prisoner brought a
federal habeas action after he was transferred to the maximum security building for
violating a prison regulation that barred inmates from assisting other inmates with
legal matters, including habeas writs. 393 U.S. at 484. The Supreme Court held that
the prison regulation itself conflicted with the federal right of habeas corpus. Id. at
489-490. Johnson is inapposite because Davis doesn’t allege any interference with
his right to federal habeas relief.
Wilwording is likewise inapplicable. There, the Court noted in dicta that the
state prisoners’ claims challenging their “living conditions and disciplinary
measures” were “cognizable in federal habeas corpus.” 404 U.S. at 249, 251. But the
Court never identified the precise challenged living conditions and disciplinary
measures at issue. And it ultimately (1) construed the dismissed habeas claims as
arising under 42 U.S.C. § 1983 and (2) remanded for further proceedings under that
statute. 404 U.S. at 251. Thus, Wilwording doesn’t support Davis’ assertion that he
properly brought his conditions-of-confinement claim under § 2241.
In short, we agree with the district court that Davis’ claim doesn’t “challenge
the execution of his sentence” and, therefore, must be “filed in a civil rights
complaint,” not in a § 2241 habeas petition. R. 36; see Palma-Salazar, 677 F.3d at
1038 (noting that claim properly construed as a challenge to conditions of
2
Although Davis requested conditional release as a remedy, he cites no
authority indicating that conditional release is an appropriate remedy for his claim
that the prison has mishandled personal property.
3
confinement must be brought under Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971)). Thus, we affirm the district
court’s dismissal.3
As a final matter, we grant Davis’ motion to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
3
While we affirm the dismissal of Davis’ habeas petition, we remand for the
district court to modify the dismissal to be without prejudice. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of
jurisdiction should be without prejudice because the court, having determined that it
lacks jurisdiction over the action, is incapable of reaching a disposition on the merits
of the underlying claims.”); Palma-Salazar, 677 F.3d at 1038 (noting that district
court lacked jurisdiction under § 2241 to consider merits of claim asserting challenge
to conditions of confinement).
4