United States District Court, W.D. Virginia, Roanoke Division
MICHAEL S. GORBEY, Petitioner,
K. Moon United States District Judge
S. Gorbey, a federal inmate proceeding pro se, filed
a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging his security level classification
and facility designation. Having reviewed his petition, I
conclude that Gorbey's claims are not properly raised in
a § 2241 petition and, therefore, dismiss the petition
without prejudice pursuant to Rules 1(b) and 4 of the Rules
Governing Section 2254 Cases.
alleges that an “unjust” 18-month Greater
Security Management Variable (“GSMV”) was applied
to his security level classification and resulted in his
transfer from the United States Penitentiary in Leavenworth,
Kansas (“USP Leavenworth”) to the United States
Penitentiary in Lee County, Virginia (“USP Lee”).
Gorbey states that the GSMV was applied to him in retaliation
for him 1) filing “valid claims” against USP
Leavenworth staff concerning medical and religious issues,
and 2) infringing on USP “Leavenworth staff's drug
ring.” Gorbey does not allege that the GSMV affected
the length of his sentence in any way. Gorbey also alleges
that he fears for his safety at USP Lee and he has been
denied grievance forms, hygiene products, paper, a pencil,
and envelopes. As relief, Gorbey seeks removal of the GSMV,
redesignation and transfer to a Federal Correctional
Institution closer to Washington, DC, access to the Bureau of
Prison's grievance process, “proper hygiene,
” a pen, paper, and envelopes.
habeas petition under § 2241 shall not issue to a
federal prisoner unless the court concludes that he is in
custody in violation of the Constitution or laws or treaties
of the United States. § 2241(c)(3). The core of a habeas
corpus action is a request to get out of jail immediately, or
sooner than currently scheduled. See Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973).
“[C]onstitutional claims that merely challenge the
conditions of a [federal] prisoner's confinement . . .
fall outside of that core” and must be raised in a
civil action, pursuant to Bivens v. Six Unknown Named
Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
See Nelson v. Campbell, 541 U.S. 637, 643 (2004);
see also Muhammad v. Close, 540 U.S. 749, 750 (2004)
(“Challenges to the validity of any confinement or to
particulars affecting its duration are the province of habeas
corpus, ” whereas “requests for relief turning on
circumstances of confinement may be presented” in a
civil rights action); Moore v. Driver, No.
1:07cv166, 2008 U.S. Dist. LEXIS 85896, at *7, 2008 WL
4661478, at *3 (N.D. W.Va. Oct. 21, 2008) (a claim regarding
custody classification cannot be raised in the context of a
§ 2241 petition).
§ 2241 petition, Gorbey does not allege any ground on
which he is entitled to a shorter term of confinement or
challenge the validity of the criminal judgment under which
he is being detained by the BOP. Because the core of his
complaint is clearly not concerning the fact or duration of
his incarceration, his claim is not properly before me as a
habeas claim under § 2241. Therefore, I will dismiss
Gorbey's habeas petition without prejudice for failing to
state a claim upon which the requested relief can be
 Gorbey also filed a “motion to
recuse Magistrate Judge Robert S. Ballou and possibly U.S.
Dist. Judge Norman K. Moon.” A judge must recuse
himself when “he has a personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(b)(1). To
disqualify a judge from continuing to preside, the
“bias or prejudice must, as a general matter, stem from
‘a source outside the judicial proceeding at
hand.'” Belue v. Leventhal, 640 F.3d 567,
572 (4th Cir. 2011) (quoting Liteky v. United
States, 510 U.S. 540, 545 (1994)). “[J]udicial
rulings and ‘opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings' almost
‘never constitute a valid basis for a bias or
partiality motion, '” id. at 573 (quoting
Liteky, 510 U.S. at 555), “‘unless they
display a deep-seated favoritism or antagonism that would
make fair judgment impossible, '” United States
v. Lentz, 524 F.3d 501, 530 (4th Cir. 2008) (quoting
Liteky, 510 U.S. at 555). “Likewise, judicial
remarks that are ‘critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily
do not support a bias or partiality challenge.'”
Belue, 640 F.3d at 573 (quoting Liteky, 510
U.S. at 555). I have no personal bias or prejudice against
Gorbey, and indeed, I have no personal knowledge of him
outside the cases he has filed in this court. Accordingly, I
will deny Gorbey's request that I recuse myself from
ruling on his petition and motions.
 I decline to construe Gorbey's
petition as a complaint pursuant to Bivens because
his allegations are insufficient to state a claim against any
defendant. See West v. Atkins,487 U.S. 42 (1988)
(to state a cause of action under § 1983, a plaintiff
must allege facts indicating that he has been deprived of
rights guaranteed by the Constitution or laws of the United
States and that this deprivation resulted from conduct
committed by a person acting under color of state law);
See, e.g., Bell Atl. Corp. v. Twombly,550 U.S. 544,
555 (2007) (noting a plaintiffs basis for relief
“requires more than labels and conclusions . . .
.”). Further, courts have long held that a prison
inmate has no interest of constitutional magnitude in either
his security classification or his place of confinement.
Olim v. Wakinekona,461 U.S. 238, 345-46 (1983);
Meachum v. Fano,427 U.S. 215, 225 (1976). I note,