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Alan M. Berkun v. Duke Terrell

August 6, 2012


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Petitioner Alan M. Berkun, who is currently incarcerated at the Federal Correctional Institution in Miami, Florida ("FCI Miami"), files this pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Berkun claims that his First Amendment rights were violated when prison authorities denied his request to receive a jigsaw puzzle by mail from an online retailer. He also claims the regulations governing federal prisoners' possession of property are arbitrary and capricious. For the reasons set forth below, the petition is denied.


Berkun's petition relates to events that occurred while he was incarcerated at the Metropolitan Detention Center ("MDC") in Brooklyn, New York. Pet. 1, ECF No. 1. Berkun requested permission to receive a jigsaw puzzle, which his family intended to purchase and send to him by mail from an online retailer. The request was denied. Respondent Duke Terrell, then the MDC warden, explained in a letter to Berkun dated June 28, 2011, as follows:

[I]n accordance with institutional rules and regulations jigsaw puzzles are not approved as inmate personal property at MDC Brooklyn. However, jigsaw puzzles are hobby craft items that can be provided by the Recreation Department at MDC Brooklyn upon request and approval.

Specifically, Program Statement 5370.11, Recreation Programs, Inmate, indicates the art and hobby craft program enables inmates to make constructive use of their leisure hours and use their skills and creative abilities constructively. Moreover, Program Statement 5370.11 also indicates the use of hobby craft facilities is a privilege that may be granted or denied. Accordingly, you may submit a Request to Staff to the Recreation Department requesting access to a jigsaw puzzle.

See Pet., Ex. 3.

Berkun argues that the rejection of his request to receive a jigsaw puzzle violated his First Amendment rights. He asks the Court to "rule in favor of Petitioner and order the [Federal Bureau of Prisons] to allow Petitioner's family to order from a jigsaw puzzle for the benefit of petitioner's personal enjoyment and [e]nsure its delivery to him at his place of incarceration." Pet. 2.

In addition, for the first time at oral argument, Berkun sought to challenge the validity of regulations promulgated by the Federal Bureau of Prisons ("BOP") governing the possession of property by federal inmates. Berkun appears to argue that these regulations, 28 C.F.R. §§ 553.10 and 553.11, insofar as they resulted in the denial of his request to receive a jigsaw puzzle, are arbitrary and capricious.

DISCUSSION A. Availability of the Relief Sought

The government asserts that the type of relief sought here -- an order requiring Berkun's custodian to allow him to receive a jigsaw puzzle -- is not available in a habeas corpus action. The government further argues that this relief cannot be obtained in an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Administrative Procedure Act (the "APA"), 5 U.S.C. §§ 551--59, 701--06, or via a writ of mandamus.

I conclude that this action was properly brought as a habeas action. A federal prisoner challenging the manner of execution of his sentence may seek habeas relief pursuant to 28 U.S.C. § 2241. See Thompson v. Choinski, 525 F.3d 205, 209 (2d Cir. 2008); Levine v. Apker, 455 F.3d 71, 78 (2d Cir. 2006); Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). Challenges to the execution of a sentence typically include matters such as "prison transfers, type of detention and prison conditions." Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) (emphasis added); see also Thompson, 525 F.3d at 209 ("[T]o the extent Thompson was seeking injunctive relief from federally imposed conditions of confinement in the service of his federal sentence, we understand neither why the district court believed that the claim should have been styled a civil rights complaint rather than a petition under § 2241 for a writ of habeas corpus, nor what sort of civil rights claim the court envisioned."); Boudin v. Thomas, 732 F.2d 1107, 1111--12 (2d Cir. 1984).*fn1

Notwithstanding this Second Circuit case law, some lower court decisions hold that challenges to certain actions of prison authorities are not properly brought pursuant to § 2241. For example, "claims based upon the loss of commissary and visitation privileges," Hernandez v. Lindsay, No. 08-CV-1495 (SJF), 2011 WL 3163078, at *3 (E.D.N.Y. July 22, 2011), or challenges to the regulations governing what is treated as "legal mail," Pollard v. Terrell, No. 10-CV-4811 (ARR), 2011 WL 5117590, at *2--3 (E.D.N.Y. Oct. 24, 2011), have been rejected as unavailable in a habeas action.

But whatever the limits are to the type of challenges that may be brought under ยง 2241, I conclude this case falls comfortably within them. Prison conditions consist of "all conditions under which a prisoner is confined for his term of imprisonment" including "general conditions affecting a prisoner's quality of life." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (emphasis added). A prisoner's right to possess items to which he is entitled under the First Amendment is a general condition ...

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