Tito v. Northern Correctional Facility, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Albert Tito
v. 	Civil No. 18-cv-361-PB
Northern New Hampshire Correctional
Facility Warden
REPORT AND RECOMMENDATION
Before the court for preliminary review is pro se
petitioner Albert Tito’s petition for writ of habeas corpus
(Doc. No. 1) filed pursuant to 28 U.S.C. § 2241. 	The matter is
before the court to determine whether the petition is facially
valid and may proceed. 	See Rule 4 of the Rules Governing
Section 2254 Cases (“§ 2254 Rules”); see also § 2254 Rule 1(b)
(authorizing court to apply § 2254 Rules to § 2241 petitions).
Tito filed this petition while on a “phone restriction” at
the Northern New Hampshire Correctional Facility, imposed as
punishment for various disciplinary charges. 	Tito asserts that
the phone restriction violates his rights to maintain telephone
contact with his family and diminishes his access to
rehabilitation through family support.
Discussion
Tito’s petition is brought pursuant to 28 U.S.C. § 2241,
which authorizes this court to review whether a person is “in
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custody in violation of the Constitution or laws or treaties of
the United States.” 	Id. § 2241(c)(3). 	“Challenges to the
validity of any confinement or to particulars affecting its
duration are the province of habeas corpus,” Muhammad v. Close,
540 U.S. 749, 750 (2004), while requests for relief “turning on
circumstances of confinement,” like Tito’s claims here, are more
typically presented in civil rights actions. 	Id.
The First Circuit has taken the position that certain
prison conditions challenges may be reviewed under § 2241. 	See
United States v. DeLeon, 444 F.3d 41, 59 (1st Cir. 2006) (if
conditions of incarceration raise Eighth Amendment concerns,
habeas corpus is available (dictum)); Miller v. United States,
564 F.2d 103, 105 (1st Cir. 1977) (“Section 2241 provides a
remedy for a federal prisoner who contests the conditions of his
confinement.” (dictum)).
Tito’s First and Fourteenth Amendment claims are well
outside the core of a traditional petition for federal habeas
relief. 	This case is not analogous to any case where conditions
of confinement claims have been allowed to proceed under 28
U.S.C. § 2241. 	In addition, petitioner has not shown that he
has exhausted his state remedies on his claims, to the extent
such exhaustion may be required. 	See generally Hamm v. Saffle,
300 F.3d 1213, 1216 (10th Cir. 2002) (“A habeas petitioner is
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‘generally required to exhaust state remedies whether his action
is brought under § 2241 or § 2254.’” (citation omitted)). 	The
district judge should dismiss this action without prejudice to
Tito’s ability to refile it as a prisoner civil rights claim.
Conclusion
For the foregoing reasons, the district judge should
dismiss Tito’s § 2241 petition without prejudice to his ability
to refile it as a prisoner civil rights claim. 	Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. 	Failure to
file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 26, 2018
cc: 	Albert Tito, pro se
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