Friedman v. Anderson , 249 F. App'x 712 ( 2007 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
September 28, 2007
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
C HA RLES D . FR IED M A N ,
Petitioner-A ppellant,
v.
No. 07-4161
RANDY ANDERSON, U.S. M arshal, (D.C. No. 2:06-CV-1061-TC)
D istrict of U tah; and A A RO N D. (D. Utah)
KENNARD, Sheriff, Salt Lake
County,
Respondents-Appellees.
OR DER AND JUDGM ENT *
Before LUCERO , H ARTZ, and GORSUCH, Circuit Judges.
Charles Friedman filed a 28 U.S.C. § 2241 habeas corpus petition in the
District of Utah in December 2006, raising claims about inadequate medical care,
deprivation of legal papers and reference materials, and disciplinary segregation.
Compl. at 4, 6, 8. 1 On June 22, 2007, the district court denied M r. Friedman’s
*
After examining appellant’s brief 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order and judgment is not binding precedent except under the doctrines of law of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.
1
M r. Friedman is not an infrequent litigant before this court. His filings
(continued...)
petition because his challenges to the conditions of his confinement should have
been brought as a civil rights action under 42 U.S.C. § 1983 rather than in a
§ 2241 habeas action. D. Ct. Op. at 1. M r. Friedman timely appealed, arguing
that the district court erred by denying his petition without granting him leave to
amend.
Habeas corpus is not an appropriate vehicle to challenge conditions of
confinement. United States v. Sisneros, 599 F.2d 946, 947 (10th Cir. 1979) (per
curiam); M erritt v. Pugh, No. 00-1129, 2000 W L 770577, at *1 (10th Cir.
June 15, 2000); M urphy v. Brooks, No. 97-1175, 1997 W L 796485, at *1 (10th
Cir. Dec. 31, 1997). M r. Friedman’s complaints against Salt Lake County
Sheriff’s Office officials and the U.S. M arshals instead should be brought in a
civil rights action pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Furthermore, the district court did not err in denying the petition without first
granting M r. Friedman leave to amend, as the district court explicitly instructed
that “the Court Clerk shall mail to Petitioner a form prisoner civil rights
complaint— along with information on how to complete it— for Petitioner to file
1
(...continued)
here include 06-4226, an application to file a successive habeas petition which w e
denied; 07-4073, a mandamus petition we dismissed as moot; and 07-4116, a civil
rights action we also dismissed.
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in a new case if he w ishes.” D . Ct. Op. at 3. For the foregoing reasons, we
affirm the district court’s denial of M r. Friedman’s petition.
The district court did not address whether M r. Friedman could proceed in
forma pauperis on appeal, so we required him to file an application in this court,
which he has done. Although § 2241 proceedings are not “civil actions” for
purposes of 28 U.S.C. § 1915(a)(2)and (b), “[a] prisoner seeking to proceed in
forma pauperis with his or her § 2241 petition remains obligated to comply with,
and is subject to, all of the other provisions of 28 U.S.C. § 1915.” M cIntosh v.
U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). Because M r. Friedman
has not demonstrated “the existence of a reasoned, nonfrivolous argument on the
law and facts in support of the issues raised on appeal,” we deny his application
to proceed in form a pauperis. Id. (quoting DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991)).
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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