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

                            FOR THE TENTH CIRCUIT                               July 7, 2017
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
WILLIE L. DAVIS,

      Petitioner - Appellant,

v.                                                           No. 17-1145
                                                    (D.C. No. 1:17-CV-00679-LTB)
JACK FOX,                                                      (D. Colo.)

      Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Proceeding pro se,1 federal prisoner Willie Davis appeals the dismissal of his

28 U.S.C. § 2241 habeas petition. Because the district court lacked jurisdiction to

consider the merits of the petition, we affirm.

      In his petition, Davis alleged that prison officers violated his procedural due

process rights when they failed to follow prison policy in impounding his personal

property. According to Davis, the officers impounded his property to retaliate against

      *
         After examining the brief and appellate record, this panel unanimously
determines that oral argument wouldn’t materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment isn’t binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel.
But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R.
32.1.
       1
         We liberally construe Davis’ pro se filings. But it’s not our role to act as his
advocate. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
him for filing grievances against the respondent, rather than for an appropriate

disciplinary reason. As relief, Davis requested a show-cause order, an evidentiary

hearing, and an order directing his conditional release.

      The district court sua sponte dismissed Davis’ habeas petition for two reasons.

First, the district court noted that Davis improperly asserted his due process claim

under § 2241. Second, the district court stated that even if it construed the claim as

“challenging conditions of confinement,” Davis’ claim “lack[ed] merit.” R. 26.

      We review the district court’s disposition of a habeas petition de novo. See

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

      Davis argues that he properly brought his claim under § 2241 in light of

Johnson v. Avery, 393 U.S. 483 (1963), and Wilwording v. Swenson, 404 U.S. 249

(1971) (per curiam), superseded by statute, Prison Litigation Reform Act of 1995,

110 Stat. 1321-71 (codified as amended at 42 U.S.C. § 1997e), as recognized in

Woodford v. Ngo, 548 U.S. 81 (2006).

      We disagree. The “purpose of a § 2241 habeas proceeding is to allow a person

in custody to attack the legality of that custody.” Palma-Salazar, 677 F.3d at 1035.

Prisoners challenging the fact or duration of their confinement and seeking

immediate release or a shortened period of confinement “must do so through an

application for habeas corpus.” Id. But a prisoner “who challenges the conditions of

his confinement must do so through a civil rights action.” Id.

      Davis’ due process claim doesn’t challenge the fact or duration of his

confinement; rather, it challenges the conditions of his confinement. Accordingly, the

                                               2
district court correctly dismissed Davis’ § 2241 habeas petition.2 And neither

Johnson nor Wilwording suggests otherwise. In Johnson, a state prisoner brought a

federal habeas action after he was transferred to the maximum security building for

violating a prison regulation that barred inmates from assisting other inmates with

legal matters, including habeas writs. 393 U.S. at 484. The Supreme Court held that

the prison regulation itself conflicted with the federal right of habeas corpus. Id. at

489-490. Johnson is inapposite because Davis doesn’t allege any interference with

his right to federal habeas relief.

       Wilwording is likewise inapplicable. There, the Court noted in dicta that the

state prisoners’ claims challenging their “living conditions and disciplinary

measures” were “cognizable in federal habeas corpus.” 404 U.S. at 249, 251. But the

Court never identified the precise challenged living conditions and disciplinary

measures at issue. And it ultimately (1) construed the dismissed habeas claims as

arising under 42 U.S.C. § 1983 and (2) remanded for further proceedings under that

statute. 404 U.S. at 251. Thus, Wilwording doesn’t support Davis’ assertion that he

properly brought his conditions-of-confinement claim under § 2241.

       In short, we agree with the district court that Davis’ claim doesn’t “challenge

the execution of his sentence” and, therefore, must be “filed in a civil rights

complaint,” not in a § 2241 habeas petition. R. 36; see Palma-Salazar, 677 F.3d at

1038 (noting that claim properly construed as a challenge to conditions of

       2
         Although Davis requested conditional release as a remedy, he cites no
authority indicating that conditional release is an appropriate remedy for his claim
that the prison has mishandled personal property.
                                                3
confinement must be brought under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971)). Thus, we affirm the district

court’s dismissal.3

       As a final matter, we grant Davis’ motion to proceed in forma pauperis.




                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




      3
         While we affirm the dismissal of Davis’ habeas petition, we remand for the
district court to modify the dismissal to be without prejudice. See Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of
jurisdiction should be without prejudice because the court, having determined that it
lacks jurisdiction over the action, is incapable of reaching a disposition on the merits
of the underlying claims.”); Palma-Salazar, 677 F.3d at 1038 (noting that district
court lacked jurisdiction under § 2241 to consider merits of claim asserting challenge
to conditions of confinement).
                                               4
