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Springer v. Kiser

United States District Court, W.D. Virginia, Roanoke Division

August 31, 2017

WARDEN JEFFEREY KISER, et al., Defendants.

          Levi Springer, Pro Se Plaintiff.



         The plaintiff, Levi Springer, a state inmate proceeding pro se, has filed a pleading that he styles as a “federal petition for habeas corpus on conditions of confinement.” Compl. 1, ECF No. 1. The petition names numerous Virginia Department of Corrections (“VDOC”) officials as respondents and complains that they have violated Springer's constitutional rights by failing to place him in “protective custody housing.” Id. at 3. For reasons explained herein, I construed the submission as a civil rights action under 42 U.S.C. § 1983 and directed the clerk's office to docket it as such. Springer has not prepaid the necessary filing fee to proceed with a civil rights action. Therefore, I also construe his submission as seeking to proceed in forma pauperis status. After review of his pleadings, I conclude that he does not qualify to do so, in light of his current allegations and his prior frivolous filings in this court. See 28 U.S.C. § 1915(g). Accordingly, I will summarily dismiss this lawsuit under § 1915(g).


         Springer frames his submission as a habeas corpus petition under § 2254, based on past state court proceedings. According to state court records, in October 2009, Springer pleaded nolo contendere in Buchanan County Circuit Court to assault and battery of a law enforcement official in Case No. CR09000503-00.

         The court sentenced him to three years and seven months in prison, to run consecutively to another sentence he is serving. Springer claims that pursuant to a Plea Agreement in this case, the Sentencing Order directed that Springer would be placed in “protective custody.” Springer Aff. 1, ECF No. 1-1.

When the original court order took [e]ffect on November 18, 2009 it was clear from [discussion with counsel and the court] that [Springer] at that time was not eligible to be placed immediately in protetctive custody housing due to the fact that under Virginia law in conjunction with [VDOC] Operating Procedures [he] would face approximately the next two years in administrative segregation for being found guilty in a [VDOC] disciplinary hearing for assault/battery of a staff member. [Springer] had to show stable adjustment by not commiting any serious offenses that would keep his status level at (5) and at the appropriate time during annual reviews [he] would be afforded the right of a due process hearing on protective custody housing.

Id. at 1-2. Springer remains in administrative segregation, allegedly because VDOC officials did not follow VDOC procedures to provide him a timely due process hearing on protective custody. Id. at 2.

         The remainder of Springer's submissions allege numerous incidents of wrongdoing by officials at Red Onion State Prison (“Red Onion”). He claims the officials have violated VDOC classification policies in numerous respects by denying him certain classification hearings and other procedural protections; have prevented him from exhausting administrative remedies; have filed disciplinary charges against him in retaliation for his efforts to enter protective custody; and taken together, these actions have prevented him from earning good conduct time. Springer asserts that in segregation, with little human contact and no recreation, he has had to “constantly upgrade and downgrade various psychotropic mental health medications through the prison psychiatrist to maintain some type of functional stability.” Compl. 9, ECF No. 1. He contends that the sentencing court never contemplated that his sentence would include the additional punishment of long-term segregation.

         As relief in this action, Springer seeks an order from this court directing that VDOC officials comply with the circuit court's order and place Springer in protective custody. Springer states that such relief would not be burdensome for prison officials, because the protective custody unit is located at Red Onion.


         As an initial matter, Springer cannot proceed with his present claim under § 2254. He admits that he has not presented this claim to any state court as required under 28 U.S.C. § 2254(b) before this court could grant the relief he seeks, and he has not stated any viable excuse for his failure to do so. If he returned to state court now with the claim, it would likely be dismissed on procedural grounds, since Springer failed to present it to the state court within one year of learning the facts in support of the claim. See Va. Code Ann. § 8.01-654(A)(2) (“A petition for writ of habeas corpus ad subjiciendum, other than a petition challenging a criminal conviction or sentence, shall be brought within one year after the cause of action accrues.”). Moreover, the federal petition is untimely, because he failed to submit it within the one-year filing period mandated under 28 U.S.C. § 2244(d)(1)(D), based on when he first knew the necessary facts. Even if Springer could clear these substantial procedural hurdles, his claims are not cognizable in habeas.

         A district court is authorized to entertain petitions for habeas corpus relief for persons who demonstrate that they are in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a); Maleng v. Cook, 490 U.S. 488, 490 (1989).

“It is well settled that challenges to the fact or length of confinement are properly considered in the context of habeas corpus” while challenges to the conditions of one's confinement are properly brought as civil rights actions. See Plyler v. Moore, 129 F.3d 728, 733 (4th Cir. 1997) (citing Pr[e]iser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (holding that a challenge to the length of “actual confinement in prison” must be brought as a habeas corpus action)); Todd v. Baskerville, 712 F.2d 70, 72 (4th Cir. 1983). [If a] petition challenges the ...

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