BLD-350                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1981
                                       ___________

                                 STEVEN A. JOHNSON,
                                              Appellant

                                             v.

                              WARDEN CANAAN USP
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                         (D.C. Civil Action No. 1-17-cv-00261)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   September 7, 2017

          Before: AMBRO, GREENAWAY, JR. and SCIRICA, Circuit Judges

                            (Opinion filed: October 19, 2017)
                                       _________

                                        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 summarily

affirm.

    Johnson filed his habeas petition challenging the mail procedures at the United States

Penitentiary − Canaan, where he is a federal inmate. Specifically, he alleged that he was

not receiving his magazine subscriptions, and that his legal mail was processed through

“regular mail channels” and opened outside his presence. The District Court summarily

dismissed the § 2241 petition after determining that Johnson did not attack the validity of

his detention and that the relief he sought was not available through a petition for writ of

habeas corpus. The order dismissing the petition was without prejudice to Johnson’s

right to pursue his claims in a properly filed civil rights action. This appeal ensued.

    We have jurisdiction under 28 U.S.C. § 1291.1 We exercise plenary review over the

District Court’s order dismissing the § 2241 petition. See Okereke v. United States, 307

F.3d 117, 119 (3d Cir. 2002). 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.




1
  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).
“Only if the plaintiff cannot amend or declares his intention to stand on his complaint
does the order become final and appealable.” Id. at 951–52. As discussed infra, Johnson
cannot amend his § 2241 petition to remedy the defect to his complaint; he would have to
file a different type of action. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1995). The District Court’s order thus terminated the action and was immediately
appealable. See id.
                                              2
       The District Court’s dismissal of Johnson’s § 2241 petition without prejudice was

proper. 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). The Court correctly

reasoned that Johnson was challenging the conditions of his confinement rather than the

execution of his sentence, and thus that habeas corpus was not an available remedy. See

Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002).2 The proper means for seeking

relief for these conditions of confinement claims is a civil rights action against the Bureau

of Prisons under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), after available administrative remedies have been exhausted, 42

U.S.C. 1997e(a). See Jones v. Block, 549 U.S. 199, 211 (2007).

       Accordingly, because this appeal does not raise a substantial question, we will

summarily affirm the judgment of the District Court.




2
 Johnson cites to Lopez v. Davis, 531 U.S. 230 (2001), as authority that his claims are
cognizable in a § 2241 proceeding. His reliance is misplaced, however, as the claim in
Lopez, which challenged a Bureau of Prison’s regulation under which the petitioner was
denied early release, clearly regarded the execution of the petitioner’s sentence.
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