                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           APR 1 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 HERMAN RIOS, JR.,

               Petitioner-Appellant,                    No. 03-3233
                                                        (D. Kansas)
 BRETT WRIGHT,                                   (D.C. No. 0-CV-3446-RDR)

               Petitioner,

          v.

 COMMANDANT, UNITED STATES
 DISCIPLINARY BARRACKS,

               Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges. **


      Herman Rios, Jr., appeals the district court’s order dismissing his pro se 28

U.S.C. § 2241 petition without prejudice to his filing of a civil rights complaint.


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10 TH C IR . R. 36.3.

      **
           After examining the briefs and appellate record, this panel has
determined unanimously to decide this case on the briefs without oral argument.
See F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1 (G).
We agree with the district court’s decision for substantially the same reasons set

forth in its June 6, 2003, order and therefore affirm its decision.



                                  I. BACKGROUND

         The record indicates that in 1995, while on active duty in the United States

Air Force, Mr. Rios was convicted by general court martial of the following

offenses: (1) rape of a child under the age of sixteen; (2) sodomy of a child under

the age of sixteen by force and without her consent; and (3) unlawfully striking

and grabbing a child under the age of sixteen on two occasions. He was

sentenced to eighteen years’ imprisonment.

         When Mr. Rios began serving his sentence at the United States Disciplinary

Barracks in Fort Leavenworth, Kansas, prison officials classified him as a

maximum custody inmate. Within a month, prison officials reclassified him as a

medium custody inmate, and Mr. Rios retained that classification for the next four

years.

         While incarcerated, Mr. Rios has been found guilty of several institutional

offenses, including aggravated assault and maiming, as well as damaging and

destroying property. These offenses resulted in his reclassification as a maximum

custody inmate. While in maximum custody, Mr. Rios was charged and convicted

of four additional offenses, the last of which occurred on December 13, 2000.


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Subsequently, it appears that Mr. Rios’s behavior improved, and on July 9, 2001,

prison officials reclassified him as a medium custody inmate.

      In his § 2241 petition, Mr. Rios asserts that prison officials violated his due

process rights by (1) classifying him as a maximum custody inmate without a

hearing; (2) allowing him to remain a maximum custody inmate without regularly

reviewing that classification; and (3) removing him from his prison job without a

hearing. Mr. Rios also alleges that (4) prison officials violated his Eighth

Amendment right to be free from cruel and unusual punishment by denying him

outdoor exercise and “adequate living space” while he was in maximum custody.

Rec. doc. 1, at 7 (Petition, filed Nov. 22, 2000). Although Mr. Rios

acknowledges that he was afforded a hearing on his disciplinary offenses, he

contends that prison officials improperly employed the maximum custody

classification as a substitute for disciplinary segregation. See id. at 6 (alleging

that “respondent has subjected petitioner[] to atypical and significant hardships

indefinitely under the guise of a custody classification” and that “petitioner[][has]

been held in disciplinary segregation for 11 . . . months”) (internal quotation

marks omitted).

      In his prayer for relief, Mr. Rios seeks “a declaration that the never ending

punishment is unlawful, an injunction to be removed from the unlawful (atypical

and significant) conditions, and administrative sentence credit of 10 days for each



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day held unlawfully in segregation.” Id. at 7A. In addition, Mr . Rios seeks

“credit for work abatement lost while in ‘max custody’/ segregation.” Id.

      The district court concluded that Mr. Rios’s allegations should be raised in

a civil rights complaint rather than a § 2241 petition:

                    The crux of Rios’ factual allegations is a challenge
             to his prolonged administrative segregation and its severe
             conditions. His requests for relief in the form of sentence
             credit for time spent in segregated confinement and
             without prison employment are . . . not supported by any
             legal authority. Such claims of entitlement to relief not
             warranted by the allegations in a pro se pleading do not
             transform the matter into a habeas corpus action.
             Furthermore, Rios’ argument that he was held indefinitely
             in disciplinary segregation without due process under the
             guise of maximum custody does not indicate the loss of
             previously earned good time credit or other challenges to
             disciplinary proceedings which may be reviewed in a
             petition for a writ of habeas corpus.

Rec. doc. 16, at 7-8 (Order, filed June 6, 2003). The court therefore dismissed

Mr. Rios’s petition without prejudice to the filing of a civil rights complaint

challenging the condition of his confinement.



                                 II. DISCUSSION

      In his appellate brief, Mr Rios argues that the district court erred in failing

to conduct a “Sandin analysis.” Aplt’s Br. at 3. He maintains that the conditions

to which he was subjected in maximum custody affected a liberty interest because

they constituted an “atypical and significant hardship [upon him] in relation to the

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ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

As a result, Mr. Rios maintains, he could not be placed in maximum custody

without some procedural protections. Mr. Rios also argues that prison officials

violated his due process rights by reviewing his placement in maximum custody

only once a year. Finally, Mr. Rios asserts that “administrative sentence credit”

constitutes an appropriate request for relief in this § 2241 proceeding because he

is barred from seeking monetary relief under the Feres doctrine. See generally

Feres v. United States, 340 U.S. 135, 146 (1950) (holding that the United States is

immune from monetary damages for “injuries to servicemen where the injuries

arise out of or are in the course of activity incident to service”); Walden v.

Bartlett, 840 F.2d 771, 774 (10th Cir. 1988) (holding that the Feres doctrine bars

a military prisoner’s claims for monetary damages).

      Mr. Rios’s arguments raise legal issues that we examine de novo. See

Khan v. Hart, 943 F.2d 1261, 1262 (10th Cir. 1991). Upon review of the record,

we agree with the district court’s analysis.

             As the district court noted:

             Petitions under § 2241 are used to attack the execution of
             a sentence . . . . [A]lthough a § 2241 attack on the
             execution of a sentence may challenge some matters that
             occur at prison, such as deprivation of good-time credits
             and other prison disciplinary matters, this does not make
             § 2241 actions like condition of confinement lawsuits,
             which are brought under civil rights laws. A habeas
             corpus proceeding attacks the fact or duration of a

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             prisoner’s confinement and seeks the remedy of immediate
             release or a shortened period of confinement. In contrast,
             a civil rights action . . . attacks the conditions of the
             prisoner’s confinement and requests monetary
             compensation for such conditions.

McIntosh v. United States Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)

(internal citations and quotation marks omitted).

      Here, Mr. Rios’s allegations address the conditions of his confinement and

thus should be raised in a civil rights action. Although in his prayer for relief Mr.

Rios seeks a ten-day sentence credit for each day he has allegedly served

improperly in maximum custody, he provides no support for his contention that he

would be entitled to such relief if he prevailed on his substantive claims. Instead,

the requested sentence credit appears to be an attempt to avoid the strictures of

the Feres doctrine. 1 In our view, a prisoner may not transform a civil rights

action involving the conditions of his confinement into a § 2241 petition merely

by seeking sentencing relief in a manner not connected to his substantive claims.

Cf. Hadley v. Holmes, 341 F.3d 661, 665 (7th Cir. 2003) (holding that the

possibility that a prisoner’s claim had the potential to affect the duration of his

confinement was “too attenuated from this proceeding to state a claim under §

2254”).



      1
         Moreover, the Feres doctrine is not as broad as Mr. Rios suggests: this
court has held that “[a military prisoner’s] claims for injunctive and declaratory
relief [were] not barred by the Feres doctrine.” Walden, 840 F.2d at 775.

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                                III. CONCLUSION

      Accordingly, we AFFIRM the district court’s dismissal of Mr. Rios’s 28

U.S.C. § 2241 petition without prejudice to the filing of a civil rights complaint.



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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