                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                                    TENTH CIRCUIT                                 April 7, 2014

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 ADRIAN M. REQUENA,

        Petitioner - Appellant,

 v.                                                               No. 13-3312
                                                         (D.C. No. 5:13-CV-03186-SAC)
 RAY ROBERTS; DEREK SCHMIDT,                                        (D. Kan.)
 Kansas Attorney General,

        Respondents - Appellees.




                                          ORDER


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       This matter is before the court to clarify, sua sponte, the Order and Judgment

issued originally in this matter on March 31, 2014. The clerk is directed to withdraw the

original decision, and to file the revised Order & Judgment attached to this order in its

place. The filing shall be nunc pro tunc to the original filing date.


                                           Entered for the Court




                                           Elisabeth A. Shumaker, Clerk
                                                                                 FILED
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                                                                            March 31, 2014
                      UNITED STATES COURT OF APPEALS                     Elisabeth A. Shumaker
                                                                             Clerk of Court
                                    TENTH CIRCUIT




 ADRIAN M. REQUENA,

        Petitioner - Appellant,
                                                                 No. 13-3312
 v.                                                     (D.C. No. 5:13-CV-03186-SAC)
                                                                   (D. Kan.)
 RAY ROBERTS; DEREK SCHMIDT,
 Kansas Attorney General,

        Respondents - Appellees.


                              ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


       Adrian Requena, a state prisoner acting pro se, moved for habeas relief in federal

district court under 28 U.S.C. § 2254. The district court, construing his petition as a



        * After examining Appellant’s brief and the 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) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It may
be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
request for relief under 28 U.S.C. § 2241, dismissed for failure to exhaust state court

remedies. Mr. Requena has filed a brief combining a request for a Certificate of

Appealability (“COA”) and for relief on the merits.

       Because Mr. Requena’s petition challenges prison policy limiting his access to the

state courts and certain procedures affecting the conditions of his confinement rather than

the “fact or duration of [his] confinement,” McIntosh v. U.S. Parole Comm’n, 115 F.3d

809, 812 (10th Cir. 1997), it is properly characterized as a civil rights action and does not

require a COA. See 28 U.S.C. § 2253(c)(1)(A) (COA required to appeal a “final order in

a habeas corpus proceeding in which the detention complained of arises out of process

issued by a State court” (emphasis added)). We remand for the district court to determine

whether he has stated a claim under 42 U.S.C. § 1983.

                                   I. BACKGROUND

       While incarcerated in Kansas state prison, Mr. Requena submitted several poems

to the prison librarian for proofreading. Because the librarian believed some of these

poems were inappropriately directed at her, she reported Mr. Requena to her supervisors.

After a hearing at which Mr. Requena alleges he was unable to present documentary

evidence in his favor, the Kansas Department of Corrections (“KDOC”) disciplined him

for developing an undue familiarity with a correctional staff member in violation of Kan.




                                                -2-
Admin. Regs. § 44-12-328.1 He received a sentence of 30 days “disciplinary

segregation,” 60 days “restriction,” a 20-dollar fine, and a “loss of level II property.”

ROA at 3, 31-32.

       Mr. Requena sought relief in Kansas state court, but because prison policy

prevented access to his forced savings account to pay for photocopying, he failed to

submit the requisite number of briefs to either the Kansas Court of Appeals (“KCOA”) or

the Kansas Supreme Court. Accordingly, both state courts refused to consider his appeal.

Mr. Requena next filed a federal habeas petition under 28 U.S.C. § 2254 in the United

States District Court for the District of Kansas, alleging the prison restrictions on

photocopying hindered his access to the state courts and the disciplinary proceeding

violated his due process rights under the Fourteenth Amendment because he was not

permitted to present documentary evidence.2 The district court recast Mr. Requena’s

petition under 28 U.S.C. § 2241 “[b]ecause [it] challenges an administrative disciplinary

proceeding.” ROA at 113. The district court then dismissed for failure to exhaust state

court remedies. Although the district court granted Mr. Requena’s motion to proceed in

forma pauperis (“ifp”) on appeal, it did not grant a COA. See ROA at 126-28, 137; 28


       1
         Under § 44-12-328(a), “[n]o inmate shall solicit, encourage, establish, or
participate in any type of personal relationship with any staff member . . . in charge of the
inmate.” The regulation defines a “personal relationship” as “any relationship involving
unnecessary familiarity by the inmate toward any such individual.” Id.
       2
        Mr. Requena’s petition included two other grounds for relief, but he has not
addressed them in his brief to this court.

                                                 -3-
U.S.C. § 2253(c)(1)(A). Mr. Requena now requests a COA and relief on the merits.

                                     II. DISCUSSION

       A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than

its validity. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). A proper

§ 2241 petition challenges “‘the fact or duration of a 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, 115 F.3d at 812 (omission in

original) (quoting Rhodes v. Hannigan, 12 F.3d 989, 991 (10th Cir. 1993)).

       Mr. Requena’s claim regarding photocopying and access to the Kansas state courts

is not cognizable under § 2241 because it does not challenge the fact or duration of his

confinement. In addition, although some challenges to prison disciplinary proceedings

are properly brought under § 2241, see McIntosh, 115 F.3d at 812, others are not. Under

prevailing Tenth Circuit law, “the types of claims cognizable under § 2241 are those in

which an individual seeks either immediate release from, or a shortened period of,

physical imprisonment, i.e., placement on parole or in a parole-like custodial setting, or

immediate release from, or a shortened period of, custody altogether.” Palma-Salazar v.

Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012); see also Boyce v. Ashcroft, 251 F.3d

911, 914 (“Generally, because they contest the fact or duration of custody, prisoners who

want to challenge their convictions, sentences or administrative actions which revoke

good-time credits, or who want to invoke other sentence-shortening procedures, must
                                                 -4-
petition for a writ of habeas corpus.”), vacated as moot, 268 F.3d 953 (10th Cir. 2001);

United States v. Garcia, 470 F.3d 1001, 1003 (10th Cir. 2006) (“Although Boyce was

vacated as moot on rehearing, we are persuaded by its reasoning.”). At the same time,

“[p]risoners who raise constitutional challenges to other prison decisions—including

transfers to administrative segregation, exclusion from prison programs, or suspension of

privileges, e.g. conditions of confinement, must proceed under Section 1983 or Bivens.”

Boyce, 251 F.3d at 914.

       Mr. Requena’s petition falls into the latter category. The disciplinary proceeding,

which imposed a sentence of 30 days “disciplinary segregation,” 60 days “restriction,” a

20-dollar fine, and a “loss of level II property,” ROA at 3, 31-32, did not reduce Mr.

Requena’s good-time credits or otherwise change the duration of his sentence. His

petition, which alleges the denial of an opportunity to submit documentary evidence at

the hearing that led to his discipline, challenges the process affecting only the conditions

of his confinement. It is therefore properly characterized as a 42 U.S.C. § 1983 claim.

See Palma-Salazar, 677 F.3d at 1035 (“‘It is well-settled law that prisoners who wish to

challenge only the conditions of their confinement . . . must do so through civil rights

lawsuits . . . not through federal habeas proceedings.’” (omissions in original) (quoting

Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011))); Wolff v. McDonnell, 418

U.S. 539, 563-67 (1974) (considering, in § 1983 suit, the minimum procedural due

process standards that prisons must satisfy before imposing disciplinary sanctions); see

also Castro v. United States, 540 U.S. 375, 381-82 (2003) (“Federal courts sometimes
                                                -5-
will ignore the legal label that a pro se litigant attaches to a motion and recharacterize the

motion in order to place it within a different legal category. They may do so . . . to create

a better correspondence between the substance of a pro se motion’s claim and its

underlying legal basis.” (citations omitted)).

                                    III. CONCLUSION

       The district court mistakenly relied upon Mr. Requena’s failure to exhaust state

court remedies in dismissing his petition sua sponte. See Wilkinson v. Dotson, 544 U.S.

74, 79 (2005) (“[H]abeas corpus actions require a petitioner fully to exhaust state

remedies, which § 1983 does not.”).3 We remand to the district court to determine

whether Mr. Requena has adequately alleged any § 1983 claims and, if he has not,




       3
         We recognize the Prison Litigation Reform Act (“PLRA”) requires that prisoners
properly exhaust “administrative remedies” before challenging their “prison conditions
under section 1983.” 42 U.S.C. § 1997e(a) (emphasis added); see also Woodford v. Ngo,
548 U.S. 81, 93 (2006). But because “failure to exhaust [administrative remedies] is an
affirmative defense under the PLRA,” Jones v. Bock, 549 U.S. 199, 216 (2007), “inmates
are not required to specially plead or demonstrate exhaustion in their complaints,” id.
Given the current posture of this case and the lack of a response from the State, we
express no opinion as to whether Mr. Requena has properly exhausted administrative
remedies.

                                                 -6-
whether he should be granted leave to amend.4

                                           ENTERED FOR THE COURT




                                           Scott M. Matheson, Jr.
                                           Circuit Judge




       4
          In doing so, we are not unmindful of Heck v. Humphrey, 512 U.S. 477, 486-87
(1994), and Edwards v. Balisok, 520 U.S. 641, 646 (1997), which bar civil rights actions
that, if successful, would necessarily imply the invalidity of an underlying conviction or
the deprivation of good-time credits. But neither case appears to bar relief under § 1983
where, as here, a prisoner challenges the procedures used to assess certain disciplinary
sanctions (other than a loss of good-time credits) that have no effect on the duration of his
confinement. See Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (“Heck’s
requirement to resort to state litigation and federal habeas before § 1983 is not, however,
implicated by a prisoner’s challenge that threatens no consequence for his conviction or
the duration of his sentence.”); see also id. at 751 n.1 (“The assumption is that the
incarceration that matters under Heck is the incarceration ordered by the original
judgment of conviction, not special disciplinary confinement for infraction of prison
rules.”); Wilkinson v. Dotson, 544 U.S. 74, 81-84 (2005).
         Moreover, as we have previously stated, “Muhammad left open the possibility that
Heck might not apply when a habeas remedy is unavailable.” Harrison v. Morton, 490 F.
App’x 988, 992 (10th Cir. 2012) (unpublished); see also Muhammad, 540 U.S. at 752 n.2
(observing that “[m]embers of the Court have expressed the view that unavailability of
habeas for other reasons may also dispense with the Heck requirement,” but declining to
“settle the issue”). In any event, we leave these matters for the district court to resolve in
the first instance.

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