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

                                    TENTH CIRCUIT                             February 4, 2014

                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
JEREMY PINSON,

       Petitioner - Appellant,
                                                              No. 13-1505
v.
                                                     (D.C. No. 1:13-CV-02821-LTB)
                                                                (D. Colo.)
DAVID BERKEBILE,

       Respondent - Appellee.


                                 ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.



       Jeremy Pinson appeals from the district court’s denial of his habeas petition under

28 U.S.C. § 2241 and dismissal of his case. Mr. Pinson seeks to proceed in forma

pauperis (“ifp”).




        *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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
       Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

denial of Mr. Pinson’s petition and dismissal of his case. We deny Mr. Pinson’s motion

to proceed ifp.

                                   I. BACKGROUND

       Mr. Pinson is imprisoned at the United States Penitentiary Administrative

Maximum Prison (“ADMAX”) in Colorado based on his convictions for making false

statements, threatening a juror, and mailing threatening communications. Mr. Pinson is

subject to sanctions under the three strikes provision of the Prison Litigation Reform Act

(“PLRA”), which requires him to fully pre-pay any filing fees before filing a civil action

or appealing from a decision therein, unless he is in imminent danger of serious physical

injury. See 28 U.S.C. § 1915(g).

       Mr. Pinson recently filed a pro se1 habeas petition under § 2241 without prepaying

his filing fee. In his petition, Mr. Pinson challenged the prison’s use of Special

Administrative Measures (“SAMs”) that restrict his mail and telephone privileges,

including limits on whom he may contact and what he can communicate. See 28 C.F.R.

§§ 501.3, 540.18. He requested an injunction to prevent David Berkebile, ADMAX’s

warden, from imposing these SAMs.

       The district court denied the habeas petition and dismissed the case. The district

court interpreted Mr. Pinson’s § 2241 petition as a challenge to his conditions of

       1
        We therefore construe his petition liberally. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); Garza v. Davis, 596 F.3d 1198, 1201 n.2 (10th Cir. 2010).


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confinement, which is generally not cognizable in a federal habeas corpus action. See

Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012); Standifer v. Ledezma, 653

F.3d 1276, 1280 (10th Cir. 2011). The district court therefore held that Mr. Pinson’s

habeas challenge was improperly styled and should be construed as a civil suit seeking an

injunction against a federal official. Accordingly, the district court reasoned that Mr.

Pinson’s § 2241 petition was an “attempt[] to circumvent his filing restrictions” and

dismissed his case. ROA at 16.

       Mr. Pinson now appeals the district court’s order.

                                     II. DISCUSSION

       When reviewing the denial of a habeas petition under § 2241, we review the

district court’s legal conclusions de novo and its factual findings for clear error.

Standifer v. Ledezma, 653 F.3d 1276, 1278 (10th Cir. 2011).

       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 v. U.S. Parole Comm’n, 115

F.3d 809, 812 (10th Cir. 1997) (omission in original) (quoting Rhodes v. Hannigan, 12

F.3d 989, 991 (10th Cir. 1993)). Indeed, “‘[i]t is well-settled law that prisoners who wish




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

lawsuits . . . not through federal habeas proceedings.’” Palma-Salazar, 677 F.3d at 1035

(omissions in original) (quoting Standifer, 653 F.3d at 1280).

       Thus, to state a claim under § 2241, a petitioner must challenge the fact or

duration—and not the conditions—of confinement. Further, “[f]ederal courts sometimes

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.” Castro v. United States, 540 U.S. 375, 381-82 (2003) (citations

omitted).

       On appeal, Mr. Pinson contends the district court erred by recharacterizing his

case as a challenge to prison conditions, and not a challenge to the execution of his

sentence.2 He urges this court to vacate, remand, and appoint counsel to represent him in

the district court.3


       2
         He cites non-binding precedent allowing challenges to prison conditions under
§ 2241. See Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008) (stating that the
Second Circuit has interpreted § 2241 to allow challenges to various matters, including
“prison conditions” (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)); Yousef
v. United States, No. 1:12-cv-2585-RPM, 2013 U.S. Dist. LEXIS 73912, at *1-3 (D.
Colo. May 23, 2013) (allowing an ADMAX prisoner to use § 2241 to attack the same
SAMs challenged by Mr. Pinson). Mr. Pinson’s reliance on non-binding precedent is
unpersuasive in light of contrary prevailing Tenth Circuit authority. See Palma-Salazar,
677 F.3d at 1035; Standifer, 653 F.3d at 1280.
       Mr. Pinson also contends that other circuits have allowed prisoners to use one
action to assert both a claim for § 2241 habeas relief as well as a claim for injunctive


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       The district court correctly determined that Mr. Pinson’s claims challenged his

prison conditions. Mr. Pinson’s petition focuses on how the SAMs restrict his

communications. His petition does not allege that he should be immediately released or

that Warden Berkebile or any other prison official has impermissibly increased the

duration of his sentence. The petition asks only that Warden Berkebile be enjoined from

imposing the SAMs on Mr. Pinson. Thus, even liberally construing Mr. Pinson’s claims,

he has failed to allege a valid factual basis for a § 2241 petition because he complains

about prison conditions. Accordingly, we agree with the district court that Mr. Pinson’s

suit is properly characterized as a civil suit for an injunction against a federal official for

a constitutional violation.4 The district court correctly denied the petition and dismissed

the case.



relief against a federal official. See Lee v. Winston, 717 F.2d 888, 893 & n.4 (4th Cir.
1983). Mr. Pinson’s argument is unpersuasive. Not only is Lee not binding on this court,
but Mr. Pinson mischaracterizes the case. See id. at 892 (interpreting a pro se state
prisoner’s habeas petition as a claim for injunctive relief against a state official under 42
U.S.C. § 1983, and stating that the petition was “not . . . properly cognizable in the
alternative or in parallel under the habeas statute, 28 U.S.C. § 2254”).
       3
           Because we affirm the district court’s decision, we deny these requests.
       4
         Prisoners may sue federal officials in their individual capacity for damages
related to constitutional violations. See Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388, 395-97 (1971); Carlson v. Green, 446 U.S. 14, 18-19
(1980). Prisoners may also seek injunctive relief against federal officials in their official
capacity. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1231-34, 1236 (10th Cir.
2005). Jurisdiction would be based on 28 U.S.C. § 1331 and the court’s equity
jurisdiction. Id. at 1230-31.


                                               -5-
       Because Mr. Pinson is subject to the three strikes provision of the PLRA, and

because his underlying petition is properly characterized as a civil suit subject to the

PLRA, Mr. Pinson must pay the district court filing fee as well as the appellate filing fee,

effective immediately. We deny Mr. Pinson’s motion to proceed ifp because he is subject

to the three strikes provision and has not alleged he is at risk of suffering a serious

physical injury in the immediate future. See 28 U.S.C. § 1915(g).

                                   III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s denial of the petition and

dismissal of the case, and we deny Mr. Pinson’s request to proceed ifp.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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