                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           August 8, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk

    WENDELL ELLIOT RICCO,

               Petitioner-Appellant,
                                                         No. 04-3261
     v.                                           (D.C. No. 02-CV-3335-RDR)
                                                            (D. Kan.)
    N. L. CONNER, Warden,

               Respondent-Appellee.


                              ORDER AND JUDGMENT           *




Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.



          After examining the briefs and 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); 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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Mr. Ricco is a federal prisoner incarcerated at the United States

Penitentiary in Leavenworth, Kansas. Mr. Ricco filed a habeas petition in the

district court under 28 U.S.C. § 2241, alleging that the prison officials violated

his Eighth Amendment right to be free from cruel and unusual punishment by

punishing him too severely for a disciplinary conviction. The district court

dismissed Mr. Ricco’s habeas petition, finding that there was “no basis to

conclude petitioner has been subjected to excessive punishment.” R., Doc. 10 at

3.

      We conclude that the district court erred by failing to recognize that a

habeas action under § 2241 is an improper vehicle for Mr. Ricco’s challenges to

the prison disciplinary sanctions that are at issue in this case. Although

respondent did not bring this error to the district court’s attention, the court had

an independent duty to properly characterize Mr. Ricco’s pro se claims. As a

result, the court should have treated this case as a civil rights action or dismissed

the case without prejudice. That said, this case ultimately presents a very discrete

legal issue under the Eighth Amendment, and, because there are no material

factual disputes, we see no reason for a remand at this point. Accordingly, we

affirm the district court’s denial of relief in this matter.




                                           -2-
                                     I. Background

       At a disciplinary hearing held on March 16, 2000, Mr. Ricco was convicted

by a discipline hearing officer (DHO) of stealing $46.40 worth of food and other

items from the prison’s food service.      See R., Doc. 8, Ex. F. This was

Mr. Ricco’s third stealing offense in a three-month period, as he had previously

been convicted of stealing at disciplinary hearings held on March 3, 2000 (for a

stealing offense committed on January 28, 2000) and on January 21, 2000 (for a

stealing offense committed on December 15, 1999).          Id. , Doc. 7, Ex. E at 11, 13.

       As sanctions for Mr. Ricco’s third stealing offense, the DHO revoked

Mr. Ricco’s visitation, commissary, and telephone privileges for the remaining

twenty-five years of his sentence.      Id. , Doc. 8, Ex. F at 2. The DHO also imposed

sixty days of disciplinary segregation and disallowed forty-one days of good

conduct time.      Id.

       Mr. Ricco appealed the DHO’s decision, and, on July 13, 2000, the warden

affirmed the DHO’s decision due to “the repetitive nature of [Mr. Ricco’s]

behavior coupled with the fact the prior sanctions did not serve as a deterrent of

[his] behavior.”     Id. , Ex. A. Mr. Ricco subsequently appealed to the Bureau of

Prison’s Administrator of National Inmate Appeals, and, on November 7, 2000,

the latter affirmed the DHO’s decision, finding that “the sanctions were

appropriate for the offense committed.”      Id., Ex. B.


                                            -3-
       In the meantime, on July 26, 2000, the DHO issued a modified decision in

which she reduced the loss of visitation, commissary, and telephone privileges to

five years. Id. , Doc. 7, Ex. C at 2. Subsequently, in July 2001, the warden fully

restored Mr. Ricco’s commissary and telephone privileges.          Id. , Ex. D.

                           II. Mr. Ricco’s Habeas Petition

       In October 2002, Mr. Ricco filed a petition for a writ of habeas corpus in

the district court, and he named the warden of Leavenworth as the sole

respondent.   Id. , Doc. 1 at 1. In his habeas petition, Mr. Ricco stated that he was

appealing the disciplinary sanctions imposed by the DHO, and he referred to the

sanctions as “loss of visitation, telephone privileges, [commissary] privileges

(disciplinary segregation and monetary restitution), all for 25-years.”           Id. , Att. A.

Mr. Ricco also alleged that he was “placed in [disciplinary] segregation for 100

days, and let out after approximately 2½ months only because somebody felt sorry

for [him].”   Id. In a supplement to his habeas petition, Mr. Ricco alleged that the

disciplinary sanctions imposed by the DHO were excessive and in violation of the

BOP’s policies and the Code of Federal Regulations.          Id. , Doc. 4 at 11-B.

       In his habeas petition and the supplement thereto, Mr. Ricco did not assert

any specific constitutional claims, and he did not ask for any particular relief.

However, in the response that he filed to respondent’s answer to his habeas

petition, Mr. Ricco asserted that the sanctions imposed by the DHO were “[a]


                                             -4-
violation of his 8th Amendment, etc., etc., etc.,” and he requested that the district

court “restore all his rights.”   Id. , Doc. 8 at 2 (original in upper case letters).

       In July 2004, the district court entered an order dismissing Mr. Ricco’s

habeas petition. Although the district court did not specifically characterize

Mr. Ricco’s claims as being based on the Eighth Amendment, the court noted that

“[p]etitioner does not allege he was denied due process in the conduct of

administrative disciplinary proceedings. He alleges the sanctions imposed are

excessive.” Id. , Doc. 10 at 2. The court also noted that “[t]his matter is before

the court on a petition for habeas corpus filed pursuant to 28 U.S.C. 2241 by a

prisoner in federal custody.”     Id. at 1. The court then addressed the merits of

Mr. Ricco’s claims, concluding as follows:

              The lengthy sanctions imposed arise from the repetitive nature
       of petitioner’s institutional misconduct. Under federal regulations,
       stealing is a High Category prohibited act. 28 C.F.R. Table 3,
       Prohibited Acts and Disciplinary Severity Scale, No. 219. The
       misconduct at issue on this matter is the third such offense by
       petitioner within three months, and the permitted sanctions for such
       misconduct include any sanctions in the High Category. 28 C.F.R.
       541.13, Table 5, Sanctions for Repetition of Prohibited Acts Within
       Same Category. The available sanctions in the High Category
       include the loss of privileges.  See id. , Table 3.

              The regulations do not prescribe the length of this sanction.
       The federal courts generally review the decisions of prison
       authorities with deference. See Sandin v. Conner , 515 U.S. 472, 482
       (199[5]) (“federal courts ought to afford appropriate deference and
       flexibility to . . . officials trying to manage a volatile environment”).
       In this case, the sanctions were imposed in compliance with the
       federal regulations, and the decision furthers a legitimate goal of

                                             -5-
       deterring institutional misconduct by withholding privileges. In
       addition, the sanctions were reviewed by prison authorities at
       intervals and modified. Viewing the record under a deferential
       standard, the court finds no basis to conclude petitioner has been
       subjected to excessive punishment.

Id. at 2-3.

               III. Proper Characterization of Mr. Ricco’s Claims

       It is well established in this circuit that § 2241 is an improper vehicle for

challenges to the conditions of a prisoner’s confinement.       See McIntosh v. United

States Parole Comm’n , 115 F.3d 809, 811-12 (10th Cir. 1997). Instead,

“[p]etitions under § 2241 are used to attack the execution of a sentence,”      id.

at 811, and they “attack[] the fact or duration of a prisoner’s confinement and

seek[] the remedy of immediate release or a shortened period of confinement,”         id.

at 812. Consequently, while “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,”    id. at 811, this is only permitted in

cases where the challenged action “affect[ed] the fact or duration of the

[prisoner’s] custody,”   id. at 812.

       In this case, the cover page of Mr. Ricco’s habeas petition expressly states

that he is “attacting (sic) prison condictions (sic) and procedures,” R., Doc. 1 at 1

(original in upper case letters), and he has not asserted any claims that could




                                             -6-
affect the fact or duration of his confinement.    1
                                                       Thus, the district court erred by

failing to recognize that § 2241 is an improper vehicle for Mr. Ricco’s claims.

       As recognized by respondent in his response brief,        see Aplee. Br. at 11, one

proper vehicle for Mr. Ricco’s challenge to the disciplinary sanctions was a civil

rights action under   Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics , 403 U.S. 388 (1971). As presently postured, however, this is not a

Bivens action. As another panel of this court recently recognized, while         Bivens

provides a remedy against individual federal officials who act in an

unconstitutional manner,    Bivens is best understood as providing only a cause of

action for damages.    See Simmat v. United States Bureau of Prisons        , No. 03-3361,

__ F.3d __, 2005 WL 1541070, at *3-*4 (10th Cir. July 1, 2005). In this case,

Mr. Ricco did not assert a claim for damages in the district court proceedings.

Moreover, although Mr. Ricco asserted in his opening brief that he “want[s] to be

compensated for all [the alleged] mistreatment,” Aplt. Opening Br. at 4 (original

in upper case letters), Mr. Ricco affirmatively stated in his reply brief that he is

not seeking to recover damages in this case,       see Aplt. Reply Br. at ii and 2. We

therefore conclude that it would be improper for this court to now treat this case

as a Bivens action.



1
      In particular, Mr. Ricco is not pursuing any claims related to the portion of
the DHO’s decision disallowing forty-one days of good conduct time.

                                             -7-
       The question that remains is whether Mr. Ricco has any viable claims for

injunctive relief that need to be treated as non-habeas claims.         See Simmat ,

2005 WL 1541070, at *3-*4 (noting, in civil rights action involving Eighth

Amendment claim against federal prison dentists in their official capacities, that

the prisoner could seek “an injunction, based on the federal courts’ equity

jurisdiction, to enforce the dictates of the Eighth Amendment,” and distinguishing

such an equitable claim from a claim for damages under            Bivens ). As a starting

point, because Mr. Ricco is no longer in administrative segregation and his

telephone and commissary privileges have been restored, we conclude that Mr.

Ricco does not have any viable claims for injunctive relief pertaining to the

administrative segregation sanction or the revocation of his telephone and

commissary privileges.     Cf. Green v. Branson , 108 F.3d 1296, 1300 (10th Cir.

1997) (holding that a prisoner’s claims for declaratory and injunctive relief were

moot in light of his release from prison).

       By contrast, Mr. Ricco’s visitation privileges have not been restored, and

he has steadfastly pursued the restoration of his visitation privileges, both in the

district court and in this court. As a result, construing his pro se allegations

liberally, we hold that Mr. Ricco has adequately pled an equitable claim for

injunctive and/or mandamus relief against the warden of Leavenworth in his

official capacity, and the relief being sought is the restoration of Mr. Ricco’s


                                             -8-
visitation privileges.   See Simmat , 2005 WL 1541070, at *8 (holding that “federal

district courts . . . have jurisdiction over claims by federal prisoners against

federal prison officials seeking vindication of their constitutional rights under

either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the nature

of either injunction or mandamus”). For the reasons set forth below, however, we

hold that Mr. Ricco’s disciplinary punishment, as modified by the prison officials,

does not violate the Eighth Amendment, and he is therefore not entitled to

equitable relief.

        IV. Eighth Amendment Claim Regarding Visitation Restriction

       In Overton v. Bazzetta , 539 U.S. 126, 136-37 (2003), a prisoner class action

brought under 42 U.S.C. § 1983, the Supreme Court held that a Michigan prison

regulation which subjected inmates with two substance-abuse violations to a ban

of at least two-years on future visitation did not violate the Eighth Amendment.

The Court explained the rationale for its holding as follows:

              Respondents also claim that the [minimum two-year]
       restriction on visitation for inmates with two substance-abuse
       violations is a cruel and unusual condition of confinement in
       violation of the Eighth Amendment. The restriction undoubtedly
       makes the prisoner’s confinement more difficult to bear. But it does
       not, in the circumstances of this case, fall below the standards
       mandated by the Eighth Amendment. . . . Michigan, like many other
       States, uses withdrawal of visitation privileges for a limited period as
       a regular means of effecting prison discipline. This is not a dramatic
       departure from accepted standards for conditions of confinement.     Cf.
       Sandlin v. Conner , 515 U.S. 472, 485 . . . (1995). Nor does the
       regulation create inhumane prison conditions, deprive inmates of

                                          -9-
      basic necessities or fail to protect their health or safety. Nor does it
      involve the infliction of pain or injury, or deliberate indifference to
      the risk that it might occur. See, e.g., Estelle v. Gamble , 429 U.S. 97
      . . . (1976); Rhodes v. Chapman , 452 U.S. 337 . . . (1981).

Id. The Court also noted, however, that “[i]f the withdrawal of all visitation

privileges were permanent or for a much longer period, or if it were applied in an

arbitrary manner to a particular inmate, the case would present different

considerations.”   Id. at 137.

      Unfortunately, Overton does not provide any clear guidance for purposes of

this case, as the Supreme Court held only that the minimum two-year revocation

period for two substance-abuse violations did not violate the Eighth Amendment,

and the court gave no specific indication as to what would constitute “a much

longer period.” In addition, while this court and other federal courts have applied

Overton in subsequent cases, the cases are not particularly helpful for purposes of

this case. See, e.g., Wirsching v. Colorado   , 360 F.3d 1191, 1198-1201, 1205

(10th Cir. 2004) (applying   Overton and holding: (1) that prison officials did not

violate a convicted sex offender’s familial association and due process rights by

refusing to allow prison visits by his daughter due to his refusal to comply with

requirements of prison’s treatment program for sex offenders; and (2) “that

visitation with a particular person does not constitute basic necessity, the denial

of which would violate the Eighth Amendment”);      Hernandez v. McGinnis , 272



                                          -10-
F. Supp. 2d 223, 228 (W.D.N.Y. 2003) (holding that a three-year revocation of a

prisoner’s visitation privileges did not violate the Eighth Amendment where the

revocation was punishment for the prisoner’s conduct in attempting to smuggle a

six-inch plexiglass shank into the prison’s visitation area).

       Nonetheless, having carefully considered both the circumstances of this

case and the Supreme Court’s Eighth Amendment analysis in              Overton , we

conclude that the five-year visitation restriction imposed in this case does not

violate the Eighth Amendment. First, this was Mr. Ricco’s third stealing offense

during a three-month period, and there is no indication that the prison officials

acted in an arbitrary manner. To the contrary, the record shows that Mr. Ricco

received graduated punishment for a series of disciplinary infractions, and, as set

forth above, the punishment was justified given the “repetitive nature of [Mr.

Ricco’s] behavior coupled with the fact the prior sanctions did not serve as a

deterrent of [his] behavior.” R., Doc. 8, Ex. A. Second, Mr. Ricco’s mail

privileges were not revoked and his telephone privileges were fully restored in

July 2001, see R., Doc. 7, Ex. D, and he has therefore had multiple avenues

available for contacting his family and others. Additionally, the prison officials

have shown some flexibility in terms of the visitation restriction, as Mr. Ricco has

been afforded at least one special visit with his mother and sister.        See Aplee. Br.,

Att. B.


                                            -11-
       In short, as recognized by the district court, “[t]he lengthy sanctions

imposed [in this case] arise from the repetitive nature of [Mr. Ricco’s]

institutional misconduct,” R., Doc. 10 at 2, and the visitation restriction “furthers

a legitimate goal of deterring institutional misconduct by withholding privileges,”

id. at 3. Accordingly, because we must “afford appropriate deference and

flexibility to [prison] officials trying to manage a volatile environment,”      Sandin ,

515 U.S. at 482, we hold that there is an insufficient legal basis to support Mr.

Ricco’s Eighth Amendment claim for equitable relief.

       The judgment of the district court is AFFIRMED.


                                                         Entered for the Court


                                                         Stephen H. Anderson
                                                         Circuit Judge




                                            -12-
