     Case: 09-40744     Document: 00511135143          Page: 1    Date Filed: 06/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 8, 2010
                                     No. 09-40744
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

JED STEWART LINEBERRY,

                                                   Petitioner-Appellant

v.

UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS;
DIRECTOR OF BUREAU OF PRISONS, HARLEY LAPPIN; FEDERAL
CORRECTIONAL INSTITUTION TEXARKANA; WARDEN, FEDERAL
CORRECTIONAL INSTITUTION, KEITH ROY,

                                                   Respondents-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 5:08-CV-185


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jed Lineberry, federal prisoner # 10296-078, appeals the district court’s
dismissal without prejudice of his 28 U.S.C. § 2241 habeas petition challenging
the conditions of his confinement and procedures used at the Federal
Correctional Institutions at Seagoville and Texarkana. He argues that the
district court abused its discretion in failing to address his claims that his

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-40744

conditions of confinement subject him to cruel and unusual punishment that
entitles him to immediate release.
      Where “a prisoner challenges an unconstitutional condition of confinement
or prison procedure that affects the timing of his release from custody,” the
proper vehicle is a civil rights action if a determination in the prisoner’s favor
will not automatically result in his accelerated release. Carson v. Johnson, 112
F.3d 818, 820-21 (5th Cir. 1997). Lineberry has not provided any authority for
his argument that he is entitled to be released because he has allegedly been
subjected to cruel and unusual punishment. His challenges to the conditions of
confinement, even if proved to be true, will not result in his accelerated release.
See Gomez v. United States, 899 F.2d 1124, 1126 (11th Cir. 1990). The proper
remedy is to require the discontinuance of a practice or to require the correction
of an unconstitutional condition. Id. The district court correctly dismissed these
claims without prejudice based on a determination that Lineberry must seek
such remedies in a civil rights action. Carson, 112 F.3d at 820-21.
      Lineberry also argues that prison disciplinary proceedings and procedures
violate due process.     Lineberry has not challenged on appeal a specific
disciplinary proceeding resulted in penalties that would extend the duration of
his sentence. A broad attack on the prison’s alleged use of illegal administrative
procedures that will not result in the prisoner’s accelerated release must also be
made in a civil rights complaint.      Cook v. Texas Dept. of Criminal Justice
Transitional Planning Dept., 37 F.3d 166, 168 (5th Cir. 1994). Thus, the district
court’s dismissal without prejudice and its determination that Lineberry is
required to assert this claim in a civil rights action is affirmed.
      Lineberry contends that limiting access to a prison drug program to
substance abusers is arbitrary and discriminatory and deprives him of a means
to reduce his sentence by one year.          This court has determined that the
disqualification of a prisoner such as Lineberry, who has been convicted of being
a felon in possession of a firearm, does not violate the Equal Protection or Due

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                                  No. 09-40744

Process Clauses. Handley v. Chapman, 587 F.3d 273, 280-81 (5th Cir. 2009).
Thus, this claim is not properly brought in a habeas petition. See Thomas v.
Torres, 717 F.2d 248, 249 (5th Cir. 1983)(habeas relief available only for federal
constitutional violations). The denial of this claim is affirmed, but the judgment
of the district court is modified to reflect that the denial of this claim is with
prejudice. See Marts v. Hines, 117 F.3d 1504, 1505-06 (5th Cir.1997)(en banc).
Lineberry also has filed this same claim as a civil rights violation in a separate
proceeding in which the district court dismissed the claim with prejudice as
frivolous; that proceeding is before this court under Case No. 09-40262 and will
be addressed separately in the order on that appeal.
      Lineberry has been barred from proceeding in civil actions in forma pauper
pursuant to 28 U.S.C. § 1915(g). See Lineberry v. Stover, No. 09-40522 (5th Cir.
Nov. 17, 2009). Lineberry is additionally warned that the further filing of any
frivolous, repetitive, or otherwise abusive pleadings will result in the imposition
of sanctions, including monetary penalties and restrictions on his ability to seek
relief in this court or in a district court.
      AFFIRMED AS MODIFIED; SANCTION WARNING ISSUED.




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