                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-3460
                         ___________________________

                                  Addones Spencer

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

        Anthony Haynes, Disciplinary Hearing Officer, FCI - Forrest City

                        lllllllllllllllllllll Defendant - Appellee
                                       ____________

                    Appeal from United States District Court
                   for the Eastern District of Arkansas - Helena
                                  ____________

                           Submitted: September 10, 2014
                             Filed: December 17, 2014

                                    ____________

Before RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
                              ____________

SMITH, Circuit Judge.

       Addones Spencer appeals the district court's order dismissing his habeas corpus
petition alleging a conditions-of-confinement claim against his former custodian,
Anthony Haynes, the former Warden of the Federal Correctional Institution - Forrest
City. Our precedent precludes conditions-of-confinement claims using the vehicle of
a habeas petition. The district court applied our precedent and dismissed Spencer's
claim. However, the court dismissed the claim without prejudice. We hold that the
district court should have liberally construed Spencer's pro se habeas petition and
given Spencer the option to pursue the claim under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). We remand for further
proceedings consistent with this opinion.

                                   I. Background
       While an inmate in Federal Correctional Institution - Forrest City,1 Spencer was
assigned a cell for a medical assessment. Correctional Officer Lieutenant Mark A.
Sheldon entered the cell to assist staff with checking Spencer's restraints. Spencer
backed himself into a corner, was verbally abusive, and claimed he did not need a
medical assessment. Staff members told Spencer to sit down on the bunk, but Spencer
was uncooperative and aggressively resisted the staff. While Spencer was forcibly
being placed on the bed, he bit Sheldon's abdomen. Spencer was then placed in
"four-point" restraints around 9:10 a.m. and was not removed from those restraints
until 3:45 p.m. the following day according to Bureau of Prisons documents.2 After
a hearing, the Disciplinary Hearing Officer found that Spencer assaulted Sheldon and
disciplined Spencer with losses of privileges.3


      1
      Spencer has since been moved from this facility and he currently is in the
custody of United States Prison Beaumont in Beaumont, Texas.
      2
        Spencer alleges in his habeas petition that he was restrained for "3 to 4 days
without food or water," that he had to move his bowels while in the restraints, and
that he had to lay in his own body waste. These allegations were not consistent with
the district court's findings, so we do not address them here.
      3
       The loss of privileges included 45 days of disciplinary segregation, a loss of
365 days of commissary privileges, phone privileges, and visitation privileges, a
disallowance of 27 days of good conduct time, and a forfeiture of 27 days of non-
vested good conduct time. Good conduct time usually refers to a sentence reduction
given to prisoners who maintain good conduct. See McIntosh v. United States Parole
Comm'n, 115 F.3d 809, 812 (10th Cir. 1997) (stating "a § 2241 action challenging

                                         -2-
       Spencer brought a petition for habeas corpus alleging, among other things, a
Fifth Amendment due process violation for being put in four-point restraints without
being afforded a hearing. The district court never reached the merits of this claim, but
instead dismissed the habeas petition without prejudice because it concluded that
conditions-of-confinement claims cannot be raised in the context of habeas petitions.4

       On appeal, we appointed counsel for Spencer and requested briefing on (i)
whether this court has jurisdiction to consider habeas petitions under 28 U.S.C.
§ 2241 that combine unlawful custody claims with unrelated conditions-of-
confinement claims, and if not, (ii) whether the proper disposition is to dismiss the
latter without prejudice, or liberally construe the pro se petition and decide the
conditions-of-confinement claims under Bivens principles.

                                     II. Discussion
                                A. § 2241 Jurisdiction
       "We review the district court's dismissal of a § 2241 petition de novo." Flowers
v. Anderson, 661 F.3d 977, 980 (8th Cir. 2011) (emphasis in original) (citing Lopez-
Lopez v. Sanders, 590 F.3d 905, 907 (8th Cir. 2010)). As we stated in Kruger v.
Erickson, "[i]f the prisoner is not challenging the validity of his conviction or the
length of his detention, such as loss of good time, then a writ of habeas corpus is not
the proper remedy." 77 F.3d 1071, 1073 (8th Cir. 1996) (per curiam) (citing Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973)). Spencer does not challenge his conviction,

prison disciplinary proceedings, such as the deprivation of good-time credits, is not
challenging prison conditions, it is challenging an action affecting the fact or duration
of the petitioner's custody"). Spencer has not appealed the dismissal of his
lost-privileges claims nor challenged the validity of the disciplinary hearing.
      4
        A magistrate judge fully articulated this finding and made the recommendation
to the district court to dismiss the habeas petition, and the district court adopted the
magistrate's findings and recommendations in full.

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nor does he seek a remedy that would result in an earlier release from prison. Rather,
Spencer argues on appeal that being put in four-point restraints for such an extended
period of time violated his Eighth Amendment right against cruel and unusual
punishment.5 As such, Spencer's constitutional claim relates to the conditions of his
confinement. See, e.g., Key v. McKinney, 176 F.3d 1083, 1085–86 (8th Cir. 1999)
(finding that a prisoner's allegation of an unconstitutional use of handcuff restraints
and leg shackles for 24 hours was a conditions-of-confinement claim and alleged a
violation of the prisoner's Eighth Amendment rights). Consequently, a habeas petition
is not the proper claim to remedy his alleged injury.

       The Supreme Court's Preiser decision left open "the question of the propriety
of using a writ of habeas corpus to obtain review of the conditions of confinement,
as distinct from the fact or length of the confinement." Bell v. Wolfish, 441 U.S. 520,
526 n.6 (1979). As a result, a split has arisen amongst our sister circuits on this issue.6

      5
        Spencer's original habeas petition in the district court alleged a Fifth
Amendment due process violation for being put into the four-point restraints without
a hearing. On appeal, however, it appears that Spencer now asserts exclusively that
being put in the restraints for an extended period violated his Eighth Amendment
rights against cruel and unusual punishment.
      6
       As outlined extensively in Aamer v . Obama, 742 F.3d 1023 (D.C. Cir. 2014)
the courts of appeals are divided on whether habeas petitions are appropriate
procedural vehicles by which to remedy conditions-of-confinement claims. Id. at
1036–38 . The D.C. Circuit, the Second Circuit, the Third Circuit, the Fourth Circuit,
and the Sixth Circuit firmly stand in the camp of allowing conditions-of-confinement
claims to be brought in the habeas corpus context, with the First Circuit contributing
dictum to this view. See id., 742 F.3d at 1026, 1035–36 (finding that prisoners
bringing a conditions-of-confinement claim where they were force-fed while
attempting a hunger strike was appropriate under a habeas petition); Adams v.
Bradshaw, 644 F.3d 481, 482–83 (6th Cir. 2011) (per curiam) (holding that a state
prisoner's Eighth Amendment challenge to the state of Ohio's lethal injection
procedures was appropriate in the context of a habeas petition); Thompson v.
Choinski, 525 F.3d 205, 206, 209 (2d Cir. 2008) (holding that a prisoner's conditions-

                                           -4-
Notwithstanding, we are bound by our post-Preiser precedent. See Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011). We, therefore, apply our precedent in
Kruger, which is consistent with the holdings of the Fifth Circuit, the Seventh
Circuit,7 the Ninth Circuit,8 and the Tenth Circuit,9 with the Eleventh Circuit


of-confinement claim was appropriate under a habeas petition where he was denied
access to the prison library, denied kosher food, and contested prison discipline)
(citing Jiminian v. Nash, 245 F.3d 144, 146 (2d. Cir. 2001) ("A motion pursuant to
§ 2241 generally challenges the execution of a federal prisoner's sentence, including
such matters as the administration of parole, computation of a prisoner's sentence by
prison officials, prison disciplinary actions, prison transfers, type of detention and
prison conditions.") (emphasis in original)); Woodall v. Fed. Bureau of Prisons, 432
F.3d 235, 242 n.5, 243 (3d Cir. 2005) (holding that a prisoner's challenge to
regulations limiting the opportunity for placement in community confinement could
proceed by way of habeas corpus "even if what is at issue . . . is 'conditions of
confinement.'"); McNair v. McCune, 527 F.2d 874, 875 (4th Cir. 1975) (per curiam)
("We hold there is federal habeas corpus jurisdiction over the complaint of a federal
prisoner who is challenging not the validity of his original conviction, but the
imposition of segregated confinement without elementary procedural due process and
without just cause."); see also United States v. DeLeon, 444 F.3d 41, 59 (1st Cir.
2006) (stating in dictum "[i]f the conditions of incarceration raise Eighth Amendment
concerns, habeas corpus is available").
      7
        Glaus v. Anderson, 408 F.3d 382, 386–88 (7th Cir. 2005) (holding that a
prisoner's request to be transferred to a prison facility that could give him proper
medical treatment for Hepatitis C was inappropriate under a habeas petition because
it was a conditions-of-confinement claim).
      8
       The weight of Ninth Circuit precedent disapproves of using habeas petitions
for conditions-of-confinement claims. See Docken v. Chase, 393 F.3d 1024, 1031 (9th
Cir. 2004); Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 2003); Neal v. Shimoda,
131 F.3d 818, 824 (9th Cir. 1997); Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.
1997); Crawford v. Bell, 599 F.2d 890, 891–92 (9th Cir. 1979).
      9
       Montez v. McKinna, 208 F.3d 862, 864 (10th Cir. 2000) (holding that a
prisoner's allegation that being moved between several prison institutions violated his
Constitution rights was appropriate under a habeas petition because it was a hybrid

                                         -5-
contributing to this view in an unpublished decision. See, e.g., Cook v. Hanberry, 592
F.2d 248, 248 (5th Cir. 1979) (per curiam) (finding that a prisoner's request for
transfer back to a West Coast facility where he was previously incarcerated could not
be brought under a habeas petition because "[h]abeas corpus is not available to
prisoners complaining only of mistreatment" and "[t]he relief from [the petitioner's
injury], [i]f proved, is in the form of equitably-imposed restraint, not freedom from
otherwise lawful incarceration").

                   B. Liberal Treatment of Pro Se Habeas Petitions
        We construe Spencer's pro se petition liberally. Here, an appropriate
construction would be to recharacterize Spencer's claim into the correct procedural
vehicle for the claim asserted. In Papantony v. Hedrick, 215 F.3d 863 (8th Cir. 2000)
(per curiam), we upheld a district court's dismissal of a habeas petition challenging
forced medication; nevertheless, because "[w]e . . . recognize[d] [the petitioner] [was]
a pro se petitioner and, as such, should not unreasonably be subjected to stringent
procedural niceties," we construed the action as a Bivens claim. Id. at 865. Our
decision in Young v. Armontrout, 795 F.2d 55 (8th Cir. 1986), is also informative.
There, we remanded a habeas petition back to the district court to be considered as
a complaint under 42 U.S.C. § 1983 because after "reading Young's petition liberally,
as is required in this case, it is apparent that Young has also raised a potentially viable
[E]ighth [A]mendment claim." Id. at 56. Spencer's habeas petition similarly raised
potential Eighth Amendment violations. As in Young, the district court should have
treated this case as a Bivens action as opposed to dismissing the petition without
prejudice.

      Finally, we approve the Seventh Circuit's wisdom outlined in Robinson v.
Sherrod, 631 F.3d 839 (7th Cir. 2011). Thus, we think it appropriate to consider the


action that ultimately challenged "the fact or duration of [the petitioner's] confinement
in Colorado").

                                           -6-
potential detriment to habeas petitioners if district courts, sua sponte, transformed
their habeas petitions into Bivens or § 1983 claims, and vice versa. See id. at 841. As
a result, we think the better practice will be for district courts to first obtain the
consent of the pro se individual before converting their claims from a habeas
proceeding to a Bivens action.

                                     III. Conclusion
       We reverse the district court's dismissal of Spencer's habeas petition because
it seeks relief only for a conditions-of-confinement claim and we remand the case to
the district court to reopen the matter and give Spencer an opportunity to pursue his
claim as a Bivens suit if he so chooses.
                          ______________________________




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