BLD-382                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3046
                                       ___________

                                 STEVEN A. JOHNSON,
                                                Appellant

                                             v.

                WARDEN LEWISBURG USP; ATTORNEY GENERAL
                 OF THE COMMONWEALTH OF PENNSYLVANIA
                     ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 1:16-cv-00305)
                          District Judge: Hon. John E. Jones III
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    August 18, 2016

              Before: KRAUSE, SCIRICA and FUENTES, Circuit Judges

                           (Opinion filed: September 12, 2016)
                                        _________

                                        OPINION *
                                        _________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Steven A. Johnson appeals from an order of the District Court dismissing his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. We will affirm.

                                             I.

       Johnson is a federal inmate currently incarcerated at USP-Lewisburg in

Pennsylvania. In February 2016, Johnson filed a habeas petition purporting to raise three

claims: (1) “Refused BP-8 and BP-9”; (2) “refused legal call”; and (3) “refused

grooming product (razor).” ECF 1, pp. 6-7. 1 He requested injunctive relief, and for the

District Court to “uphold [the] rights and policy of [the] inmate handbook.” ECF 1, p. 8.

The requested injunction was described by Johnson in a separate motion attached to his

habeas petition. See ECF 1, p. 14 (seeking transfer “to a prison willing [to] honor First

Amendment rights of accessing courts and policies of the inmate handbook”).

       The District Court screened Johnson’s petition pursuant to the Rules Governing

Section 2254 Cases in the United States District Courts, see 28 U.S.C. foll. § 2254

(1977), made applicable to § 2241 petitions by Rule 1(b). Bowers v. U.S. Parole

Comm’n, Warden, 760 F.3d 1177, 1183 n.8 (11th Cir. 2014). The District Court

summarily dismissed Johnson’s petition—and, by necessary implication, the motion for

injunctive relief—because his claims did not challenge “either the fact or duration of his

confinement.” ECF 5, p. 2. The District Court reasoned that habeas corpus is not an


1
 The first claim appears to implicate the grievance policy maintained by the U.S. Bureau
of Prisons. In an addendum to his petition, Johnson vaguely explained that he was
“denied a BP-8/BP-9”—presumably a reference to the forms for filing a grievance and an
administrative appeal—in order to address his phone and razor issues. See ECF 1, p. 10.
                                             2
appropriate vehicle for an inmate seeking to impose liability for constitutional violations

related to conditions of confinement. The District Court dismissed Johnson’s petition

“without prejudice to any right [he] may have to reassert his present claims in a properly

filed civil rights complaint.” ECF 5, p. 2; see also ECF 6. Johnson appealed.

                                             II.

       As noted above, the District Court dismissed Johnson’s habeas petition without

prejudice to his re-raising the claims in a separate civil rights action. Generally, an order

dismissing an action without prejudice is not immediately appealable. Borelli v. City of

Reading, 532 F.2d 950, 951 (3d Cir. 1976) (per curiam). Here, however, the District

Court’s use of the term “without prejudice” was simply meant to convey to Johnson that,

although his claims were not cognizable under § 2241, he could assert his claims anew in

a Bivens-style 2 action. A new lawsuit would be required (if desired) because the non-

cognizability of Johnson’s claims under § 2241 constituted a defect that could not be

remedied by amendment. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.

1995). The District Court’s order of dismissal thus terminated the litigation and was

immediately appealable. See id.

       Consequently, we exercise appellate jurisdiction under 28 U.S.C. § 1291. Our

review is plenary. Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per




2
  See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
                                       3
curiam). We may summarily affirm if there is no substantial question presented by the

appeal. See Third Circuit L.A.R. 27.4 and I.O.P. 10.6.

                                             III.

       Because Johnson’s habeas petition challenged only conditions of his confinement,

the District Court properly dismissed the action below. Section 2241 “confers habeas

jurisdiction to hear the petition of a federal prisoner who is challenging not the validity

but the execution of his sentence.” Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 241

(3d Cir. 2005). In Cardona v. Bledsoe, 681 F.3d 533 (3d Cir. 2012), we explained that, in

order for a prisoner to challenge the “execution” of his sentence under § 2241, he must

allege that the “[Federal Bureau of Prisons’] conduct was somehow inconsistent with a

command or recommendation in the sentencing judgment.” Id. at 537; see also Leamer

v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). The claims raised in Johnson’s § 2241

petition are unrelated to his sentence and are thus non-cognizable under Cardona.

Therefore, the District Court did not err in dismissing the case. 3



3
   Johnson’s reliance on Preiser v. Rodriguez, 411 U.S. 475 (1973), to avoid this result is
unavailing. In Preiser, the Supreme Court commented in passing that “[w]hen a prisoner
is put under additional and unconstitutional restraints during his lawful custody, it is
arguable that habeas corpus will lie to remove the restraints making the custody illegal.
Id. at 499; see also Bell v. Wolfish, 441 U.S. 520, 527 n.6 (1979) (leaving “to another day
the question of the propriety of using a writ of habeas corpus to obtain review of the
conditions of confinement.”). The Supreme Court, though, has “never followed [that]
speculation in [Preiser].” Muhammad v. Close, 540 U.S. 749, 751 n.1 (2004) (per
curiam). Instead, it has identified only two claim varieties that may be pursued with a
habeas petition: “[c]hallenges to the validity of any confinement or to particulars
affecting its duration.” Id. at 750. But even assuming, contra Muhammad and Cardona,
                                              4
                                           IV.

      For the foregoing reasons, the District Court’s order of dismissal will be

summarily affirmed.




that a habeas petition can in certain cases be used to challenge conditions of confinement
unrelated to an inmate’s conviction or sentence, we are skeptical that deprivation of a
shaving razor and a phone call amounts to the “additional and unconstitutional restraints”
hypothesized by the Supreme Court in Preiser.
                                              5
