United States District Court, S.D. West Virginia, Beckley
RAYMOND E. HAWK, Petitioner,
JOE COAKLEY, Warden, FCI Beckley, Respondent.
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge
before the court is the petitioner's Application for Writ
of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 1).
This matter is assigned to the Honorable Irene C. Berger,
United States District Judge, and, by Standing Order, it is
referred to the undersigned United States Magistrate Judge
for submission of proposed findings and a recommendation for
disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).
BACKGROUND AND PROCEDURAL HISTORY
time he filed his petition, the petitioner was incarcerated
at the Federal Correctional Institution at Beckley, West
Virginia, serving a 108-month term of imprisonment imposed by
the United States District Court for the Eastern District of
Tennessee, following his conviction, pursuant to a guilty
plea, on one count of conducting a racketeering enterprise,
in violation of 18 U.S.C. § 1962. United States of
America v. Hawk, No. 2:09-cr-54-001, ECF No. 669 (E.D.
Tenn., Oct. 12, 2010). However, according to the Federal
Bureau of Prisons (BOP) inmate locator on its website,
www.bop.gov, the petitioner was released from
custody on January 20, 2017.
petitioner's section 2241 petition indicates that, on
January 24, 2013, he was diagnosed by a BOP contracted
optometrist with age-related, dry macular degeneration (AMD).
The petitioner asserts that the National Eye Institute (NEI)
and the National Institutes of Health (NIH) commissioned two
studies, Age-Related Eye Disease Study 1 and 2 (AREDS and
AREDS-2), that revealed that, while there is no cure for AMD,
treating the condition with supplements containing vitamins C
and E, beta-carotene, zinc, copper, lutein and zeaxanthin,
can slow the progression of the disease. (ECF No. 1 at 4).
petitioner contends that prison officials withheld “the
AREDS-2 medications” from him for 210 days, placing his
vision at risk, before advising him that he would be required
to purchase the requested supplements himself through the
commissary at his own expense. (Id. at 5). The
petitioner contends that this action violated his rights
under the Eighth Amendment to the United States Constitution.
The petitioner seeks an Order directing the respondent to
furnish the petitioner with the recommended treatment for AMD
at BOP cost and to order reimbursement to the petitioner for
any out of pocket expenses in acquiring the suggested
are a number of reasons for summarily dismissing the
The petition does not allege a cognizable claim for habeas
a section 2241 petition is generally used to attack the
manner in which a federal sentence is being executed.
See 28 U.S.C. § 2241. In a 2241 petition, a
prisoner may seek relief concerning issues such as parole
denial, sentence computation, loss of good conduct time, the
Inmate Financial Responsibility Program, placement in
residential reentry centers, or residential drug treatment
programs. “[T]he Supreme Court [has] held that the writ
of habeas corpus was the exclusive civil remedy for prisoners
seeking release from custody.” Glaus v.
Anderson, 408 F.3d 382, 386 (7th Cir. 2005).
at bottom, a habeas corpus petition is designed to challenge
to “the fact or duration of [a prisoner's] physical
confinement, ” or “seek immediate release or a
speedier release from active confinement.” Preiser
v. Rodriguez, 411 U.S. 475, 498 (1973). Here, the
petitioner does not seek immediate or speedier release from
active confinement. Thus, his request for relief is not
appropriate under 28 U.S.C. § 2241.
The petition does not allege a cognizable Eighth Amendment
petitioner's filing can also be liberally construed to be
asserting a claim of deliberate indifference to a serious
medical need, which would be addressable under the Eighth
Amendment to the United States Constitution in a civil rights
action. Where, as here, such a claim is brought against a
federal official, such as the Warden of a BOP facility, the
claim is addressed under Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
Bivens, the Supreme Court created a counterpart to
42 U.S.C. § 1983 so that individuals may bring suit
against a federal actor for violating a right guaranteed by
the United States Constitution or other federal law. Because
petitioner is a federal prisoner, he must pursue relief under
Bivens, as opposed to under section 1983. A
Bivens action is used to hold federal officers