Abdul-Hakeem v. Koehler

FRIEDMAN, Circuit Judge: This is an appeal from the judgment of the United States District Court for the Southern District of New York, dismissing a suit under 42 U.S.C. § 1983 (1982), in which the appellant, Adam Abdul-Hakeem, also known as Larry Davis, a prisoner then confined in the prison system of the city of New York, sought a transfer out of that system to another prison system. The district court dismissed the suit on the ground that a petition for habeas corpus was Hak-eem’s exclusive avenue for that relief, and that he could not obtain that relief because he had failed to exhaust his remedies in the State courts. We hold that Hakeem’s claim is cognizable under section 1983. We therefore reverse the judgment dismissing his suit and remand to the district court for further proceedings. I This case began in early May 1989 when Hakeem filed a petition in the New York Supreme Court, New York County, for a writ of habeas corpus seeking to compel New York City corrections officials to transfer him to the Metropolitan Correctional Center (“MCC”), a federal prison. He was being held in Rikers Island, a city detention facility, awaiting trial on homicide charges, following his 1988 conviction in Bronx County for weapons possession, for which he was sentenced to five-to-fifteen years in prison. In his State habeas application he complained that repeatedly he had been brutally beaten and threatened with death by guards and officers at Rik-ers Island. Hakeem then filed the present suit in the United States District Court for the Southern District of New York. Making substantially the same allegations respecting brutality at Rikers Island that he made in his State habeas petition, Hakeem sought relief under 42 U.S.C. § 1983 and 18 U.S.C. § 5003 (1988), and under the fifth, sixth, eighth, and fourteenth amendments of the U.S. Constitution. Hakeem’s complaint referred to the pending State habeas proceedings, but stated that the New York court had indicated that it had no power to transfer him to MCC, which had refused to accept him, and that there would be delay in the State court’s decision of the habeas application. The complaint named as defendants the city’s Correction Commissioner and the Warden at Rikers Island, a number of officers at Rikers Island, the Director of the U.S. Bureau of Prisons and the Warden at MCC. [68] The complaint alleged that while he was confined at Rikers Island, guards assaulted and attempted to assault him, “constantly curse at him, threaten him, and even tell him that he is going to be killed.” It also alleged that “several inmates have assaulted or attempted to assault plaintiff, one with a razor blade in the shower,” and that, on one occasion, correction officers who observed Hakeem’s being assaulted by inmates “refused to aid him, even when he was hit in the back of the head with a hard object, causing him to cough blood. He was again refused medical attention.” The complaint also asserted that Hakeem’s private doctors were not permitted to visit or examine him, that his attorneys were not permitted to see him, and that he “is often denied use of a telephone to call his attorneys.” The relief Hakeem sought was a preliminary and permanent injunction (1) transferring him from Rikers Island to the MCC, (2) enjoining the Rikers Island defendants “from further interference with plaintiff’s safety, well-being and legal rights,” (3) directing them “to take all necessary steps to ensure plaintiff’s safety, well-being and legal rights,” and “to allow plaintiff free and unimpeded access to his attorneys,” and (4) “allowing plaintiff to be examined by a physician [of] his choosing and to receive whatever medical care he requires.” Other relief sought included providing Hakeem with “a new and suitable pair of eyeglasses” (he alleged that while previously confined at Attica Prison of the New York State system he had lost his eyeglasses and had been unable to retrieve them) and directing the City Commissioner of Corrections and the Rikers Island Warden “to take all steps necessary to recover plaintiff’s property from Attica prison.... ” Shortly after the filing of the federal complaint, the State court denied Hakeem’s State habeas petition, holding that it had no authority to order Hakeem’s transfer to MCC. Hakeem did not appeal from that ruling. On the federal defendants’ motion, the district court dismissed the complaint as to them. Hakeem has not appealed from that action. The district court subsequently dismissed the remainder of the complaint against the city officials. Abdul-Hakeem v. Koehler, 718 F.Supp. 1211 (S.D.N.Y.1989). The court first held that the portion of the complaint seeking “transfer to a different place of confinement” was properly a petition for habeas corpus, and it rejected the petition because Hakeem had not exhausted his State remedies. Id. at 1212. The court ruled that “[ajlthough exhaustion of state remedies is not a jurisdictional prerequisite to considering a habeas corpus petition, none of the reasons that justify ignoring the exhaustion requirement are applicable to this matter.” Id. The court stated that in view of Hak-eem’s statement to the court that he “seeks no other relief from this court except transfer from the custody of [defendants],” Hakeem’s other claims “are deemed withdrawn.” Id. at 1212-13. The court then stated that even if those claims had not been withdrawn, it would abstain from deciding them under the principles announced in Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), and Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Id. at 1213. The court accordingly dismissed Hakeem’s “claims for non-habeas corpus relief” to the extent they had not been abandoned. At oral argument in this case, Hakeem’s counsel reiterated that the claims for relief other than transfer of custody were withdrawn. Counsel noted, however, that Hak-eem seeks transfer either to federal custody or to the custody of a State other than New York, even though his complaint mentioned only a transfer to MCC. II A. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court enunciated the touchstone for determining whether habeas corpus (28 U.S.C. § 2254) or 42 U.S.C. § 1983 is the proper procedure for a prison [69] er’s suit. The Court stated that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500, 93 S.Ct. at 1841. On the other hand, “a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody,” id. at 499, 93 S.Ct. at 1841, i.e., when he is “challenging] the conditions of [his] confinement.” Id. at 498, 93 S.Ct. at 1840. Following Preiser, this court, speaking through Judge Friendly, stated that “[a] petition protesting against prison conditions, but not seeking release, equally clearly falls within the latter [42 U.S.C. § 1983].” Williams v. Ward, 556 F.2d 1143, 1150 (2d Cir.), cert. dismissed, 434 U.S. 944, 98 S.Ct. 469, 54 L.Ed.2d 323 (1977). Under these standards, Hakeem’s complaint properly was laid under section 1983 because he challenges “the conditions of his confinement” and not “the very fact or duration of his physical imprisonment.” Although the only relief Hakeem now seeks is a transfer out of the New York prison system, he seeks the transfer because of past, and to prevent future, alleged brutalities by prison guards and police officers. The gravamen of his complaint is the alleged brutalities committed in that system. He moves for transfer out of that system solely as the remedy for what he asserts has been the intolerable beatings inflicted upon him in the prison. Hakeem is “seeking immediate release” from his present confinement only in the sense that he wishes to be confined elsewhere. He does not seek release from “confinement itself.” 411 U.S. at 498, 93 S.Ct. at 1840-41. Indeed, even if he obtained the transfer out of the New York prison system he seeks, the “duration of his physical imprisonment” would not be changed. He would continue to serve the same sentence, but in a different place. The fact that he seeks a termination of his confinement in the particular prison to rectify “the conditions of [his] confinement,” does not make his suit one “seeking immediate release from” “the very fact or duration of his physical imprisonment,” for which habeas is the proper remedy. The dissent argues that because the result of Hakeem’s federal suit, were it successful, would be to compel the warden at Rikers Island to cede custody of Hakeem, the relief Hakeem seeks is the immediate release from his imprisonment at Rikers Island, and that under Preiser that relief may be obtained only through habeas. The dissent states that the “proper focus” in determining whether the suit is for habeas or under section 1983 “is on the prison officials and the extent to which the district court, by granting relief, would be controlling their discretion,” i.e., “on the nature of the relief that would have been required of the prison officials had the prisoner’s claim been successful.” We do not read either Preiser or the Supreme Court cases following it, or the court of appeals cases the dissent cites, as establishing that standard as the basis for determining whether a particular prisoner’s suit is one for habeas. We think the language in Preiser means what it says — ha-beas is the required procedure only if the. prisoner makes a constitutional challenge to “the very fact or duration of his physical imprisonment,” and seeks “immediate release or a speedier release from that imprisonment.” Preiser, 411 U.S. at 500, 93 S.Ct. at 1841. Hakeem does not challenge the fact or the duration of his physical confinement, or seek immediate or early release therefrom. His suit seeks only to change the conditions of his confinement, i.e., its place. The relief he seeks — a change in the place, and therefore in the conditions, of confinement — is cognizable under section 1983. B. After drawing the distinction noted above, the Supreme Court stated in Preiser: This is not to say that habeas corpus may not also be available to challenge such prison conditions. When a prisoner [70] is put under additional and unconstitutional restraints during his lawful custody, it is arguable that habeas corpus will lie to remove the restraints making the custody illegal. 411 U.S. at 499, 93 S.Ct. at 1841 (citations omitted). This court applied that principle in Boudin v. Thomas, 732 F.2d 1107 (2d Cir.), reh’g en banc denied, 737 F.2d 261 (1984). That case was a government appeal from an award of attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (1982), to a federal prisoner confined in the MCC, who had successfully challenged her “administrative detention” in that prison. The court held that “habeas is the appropriate action to challenge conditions of confinement where the prisoner seeks to be moved in order to remedy past constitutional violations.” Id. at 1111. Preiser did not state that habeas was the sole remedy for challenging “additional and unconstitutional restraints during [a prisoner’s] lawful custody,” but only that habeas may “also be available to challenge such prison conditions,” 411 U.S. at 499, 93 S.Ct. at 1841, i.e., as a remedy in addition to section 1983. Although Boudin described habeas as “the” appropriate action for the prisoner to use there, the prisoner there could not have resorted to section 1983, since as a federal prisoner the actions of the prison officials she challenged were not taken under color of State law. See Boudin, 732 F.2d at 1112 n. 2. Thus, the statement in neither Preiser nor Boudin supports the district court’s ruling that this is exclusively a habeas case. Ill Both sides assert that an alternative ground of the district court’s dismissal of the portion of the complaint seeking a transfer out of the New York City prison system was the court’s application of the abstention doctrine. They vigorously contest the correctness of that alleged application of the doctrine. As indicated in part I of this opinion, however, the sole ground upon which the district court based its dismissal of the transfer request was that habeas, and not section 1983, was the proper method for litigating that issue, and that habeas would not lie because Hakeem had not exhausted his State remedies. The court’s abstention ruling was made as the ground for dismissing Hakeem’s other claims, if Hakeem had not waived them. The reasons the court gave for abstaining from deciding those claims also might be applicable to the transfer claim. Since, however, “the decision whether to defer to the state courts is necessarily left to the discretion of the district court in the first instance,” Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 19, 103 S.Ct. 927, 938, 74 L.Ed.2d 765 (1983), it would be inappropriate for us to consider whether the district court properly could abstain from deciding the section 1983 claim. Our reversal of the district court’s decision dismissing this suit requires a remand to the district court to consider the section 1983 issue. On the remand, if it deems it appropriate, the district court may consider whether it should abstain from deciding the section 1983 claim. The judgment of the district court is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.