CLD-282                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-2548
                                    ____________

                         PHILIP ANTHONY BONADONNA,
                                             Appellant,

                                           v.

             UNITED STATES OF AMERICA; DONNA ZICKEFOOSE,
                  WARDEN AT FORT DIX FEDERAL PRISON
                    __________________________________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                             (D.C. Civ. No. 1-11-cv-01763)
                    District Judge: Honorable Jerome B. Simandle
                     __________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  September 8, 2011

             Before: RENDELL, FUENTES and SMITH, Circuit Judges

                         (Opinion filed: September 28, 2011)
                                   ____________

                                      OPINION
                                    ____________


PER CURIAM

      Appellant Philip Bonadonna, a federal prisoner, filed a petition for writ of habeas

corpus, 28 U.S.C. § 2241, in the United States District Court for the District of New


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Jersey, in which he stated that he is 78 years old. On or about March 15, 2011, prisoners

were advised that one Dr. Lopez would be re-evaluating all prisoners at FCI-Fort Dix

who currently have a soft shoe “pass.”        On March 18, 2011, Dr. Lopez examined

Bonadonna and determined that he did not need soft shoes, despite having worn them for

the past 27 years. She determined that Bonadonna should be issued regular boots. In his

habeas corpus petition, Bonadonna asked the District Court to allow him to keep his soft

shoes, which he regards as a medical necessity. Bonadonna did not file an in forma

pauperis application, see 28 U.S.C. § 1915.

       In an order entered on May 31, 2011, the District Court dismissed the habeas

corpus petition without prejudice for lack of jurisdiction, granting Bonadonna leave to

pursue his claim in a civil rights action under 42 U.S.C. § 1983. The court explained that

Bonadonna’s challenge to the revocation of his soft shoes pass was a challenge to the

conditions of his confinement that must be brought by way of a civil rights action, or

action for declaratory and injunctive relief, if at all. Because Bonadonna had not paid the

filing fee, and because of the consequences that flow from a grant of leave to proceed in

forma pauperis or from the dismissal of a civil rights action, see 28 U.S.C. § 1915(g), the

court declined to construe the petition as a civil rights complaint. Bonadonna was given

30 days to indicate whether he wanted to proceed with his claims in a newly-opened civil

action by submitting an amended complaint and either paying the filing fee or completing

an in forma pauperis application.

       Bonadonna timely moved for reconsideration, but the District Court denied the

motion in an order entered on August 18, 2011, concluding that its original decision was

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correct: whether or not Bonadonna is permitted to wear special footwear is an issue

relating to his conditions of confinement, and not to the fact or duration of his

confinement.

       Bonadonna appeals. We have jurisdiction under 28 U.S.C. § 1291. 1 Our Clerk

granted Bonadonna leave to appeal in forma pauperis and advised him that the appeal

was subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6.          He was invited to submit

argument in writing, and he has done so. We have considered his written submission.

       We will dismiss the appeal as frivolous. An appellant may prosecute his appeal

without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute

provides that the Court shall dismiss the appeal at any time if the Court determines that it

is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The

District Court correctly decided the issues raised by Bonadonna’s habeas corpus petition.

       Federal habeas corpus relief is available only “where the deprivation of rights is

such that it necessarily impacts the fact or length of detention.” Leamer v. Fauver, 288

F.3d 532, 540 (3d Cir. 2002). Bonadonna’s allegation of deficient medical care does not

“spell speedier release,” and thus does not lie at the “‘the core of habeas corpus.’”


1
  We conclude that this case is distinguishable from Borelli v. City of Reading, 532 F.2d
950 (3d Cir. 1976) (per curiam). Although the District Court’s dismissal was without
prejudice, Bonadonna can do nothing to cure his petition, making the order final and
appealable, cf. Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d
1454, 1461 n.6. (3d Cir. 1994) (where District Court dismisses case based on
justiciability, plaintiffs can do nothing to cure their complaint).
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Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (quoting Preiser v. Rodriguez, 411 U.S.

475, 489 (1973)). See also Leamer, 288 F.3d at 542-44. In seeking restoration of his soft

shoes pass, he does not seek a speedier release, only different medical care, and he thus

must proceed through a civil rights action after exhausting his administrative remedies,

and either paying the civil action filing fee or completing an in forma pauperis

application.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).




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