Kone v. Brown et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TIDIANE KONE,
Plaintiff,
vs.
FOLTZ et al.,
Defendants.
Case No. 3:19-cv-00307-RRB
ORDER
DENYING PLAINTIFF’S
MOTION FOR INJUNCTION
PENDING APPEAL
(Docket No. 115)
Plaintiff, a self-represented prisoner, sought relief pursuant to 42 U.S.C.
§ 1983 for violation of his civil rights, claiming violations of the First, Eighth, and
Fourteenth Amendments.1 	This Court granted summary judgment to Defendants and
dismissed the matter with prejudice.2 Plaintiff filed a Notice of Appeal.3 Plaintiff now has
filed a “Motion for Injunction Pending Appeal.”4 	He complains that he is being held in
segregation rather than in “open mod under protective custody,” and that the Department
is retaliating against him by requiring him to either “face violen[ce] goin[g] to general
population or stay in seg[regation].”5
1 See Dockets 19, 21, 25.
2 Docket 105. See also Judgment at Docket 106.
3 Docket 107.
4 Docket 115.
5 Docket 115 at 2.
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Kone v. Brown, et. al 	Case No.3:19-cv-00307 RRB
Order Denying Injunction Pending Appeal 	Page 2
This Court lacks jurisdiction to act on this matter in light of the pending appeal
before the Ninth Circuit. Moreover, the relief Plaintiff seeks in the form of removal from
segregation is not a remedy available under § 1983. Rather, a writ of habeas corpus under
28 U.S.C. § 2241 allows an individual to test the legality of being detained or held in
custody by the government.6 The writ provides a statutory mechanism for a state prisoner
to raise claims, and for a district court to grant relief, if the prisoner is “in custody in
violation of the Constitution or laws or treaties of the United States.”7 	A writ of habeas
corpus may only grant relief that if successful would “necessarily lead to his immediate or
earlier release from confinement” or a “quantum change in the level of custody.”8 	This
habeas statute provides federal district courts with general habeas corpus jurisdiction.9
However, a prisoner cannot seek relief under § 2241, if he may seek relief under 28 U.S.C.
§ 2254 (for prisoner in custody due to a state conviction) or 28 U.S.C. § 2255 (for prisoners
in custody due to a federal conviction), unless those avenues render an ineffective or
inadequate remedy.10 	Proper examples of § 2241 petitions include challenges to pretrial
detention,11 parole decisions for federal prisoners,12 federal sentencing credits,13 or
administrative disciplinary proceedings.14
6 Rasul v. Bush, 542 U.S. 466, 474 (2004).
7 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a).
8 Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016) (en banc); Nettles v. Grounds (“Santos”),
788 F.3d 992, 1005 (9th Cir. 2015) (holding that a federal district court had habeas jurisdiction over a
petitioner’s claim asking for a disciplinary record to be expunged, because the expungement would lead to
a speedier release from punitive segregation.)
9 See Magana-Pizano v. INS, 200 F.3d 603, 608 & n.4 (9th Cir. 1999).
10 See Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999) (per curium).
11 McNeely v. Blanas, 336 F.3d 822, 824 n.1 (9th Cir. 2003).
12 See Tyler v. United States, 929 F.2d 451, 453 n.5 (9th Cir. 1991).
13 United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984).
14 Nettles v. Grounds (“Santos”), 788 F.3d at 1005.
Case 3:19-cv-00307-RRB Document 116 Filed 03/27/23 Page 2 of 3

Kone v. Brown, et. al 	Case No.3:19-cv-00307 RRB
Order Denying Injunction Pending Appeal 	Page 3
In light of the foregoing, Plaintiff’s Motion for Injunction Pending Appeal at
Docket 115 is DENIED. 	The Clerk is directed to send Plaintiff a copy of form AO 242
with a copy of this Order.
IT IS SO ORDERED this 27th day of March, 2023, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
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