Moreno v. Federal Bureau of Prisons

Background

Six federal prisoners and one non-prisoner originally filed a pro se civil-rights complaint against the Federal Bureau of Prisons (BOP). They alleged that, after communicating with a reporter from The Marshall Project for an article about prison rape, the BOP subjected the prisoners to severe retaliation. They sought declaratory and injunctive relief. The complaint also referred to Freedom of Information Act (FOIA) and Privacy Act requests, but did not request relief on those claims.

Chief Judge Laura Taylor Swain previously severed the plaintiffs’ claims and directed that separate civil actions be opened. Elmer Moreno, who the opinion states was incarcerated at USP Tucson in Arizona, became the sole plaintiff in this action.

FOIA and Privacy Act claims

The court dismissed Moreno’s FOIA and Privacy Act claims without prejudice. It explained that Moreno had not described the records he requested, alleged facts showing that the records were agency records, or alleged facts showing that the BOP improperly withheld them. The court therefore found the FOIA allegations insufficient at that stage and allowed Moreno to replead those claims in a separate action.

The court also found that the complaint did not explain how the alleged events implicated Moreno’s rights under the Privacy Act. It therefore held that he failed to state a Privacy Act claim and dismissed any such claims without prejudice to repleading them in a separate action.

Recharacterization under Section 2241

Although Moreno filed a civil-rights complaint, the court applied the rule requiring liberal construction of filings by people without lawyers. Because Moreno challenged conditions of confinement—including telephone and mail restrictions allegedly imposed in retaliation for exercising First Amendment rights—the court construed the action as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. The court stated that, in the Second Circuit, federal prisoners may use a Section 2241 petition to challenge the execution of their sentences, including conditions of confinement.

The court did not decide whether Moreno proved retaliation or whether the challenged restrictions were lawful. Instead, it directed the BOP to answer the Section 2241 petition. The U.S. Attorney’s Office had 60 days from the order’s date to file an answer or other response, and Moreno could file reply papers within 30 days after being served with the response.

Other ruling

By separate order, the court granted Moreno’s request to proceed without prepaying filing fees. In this order, however, the court certified that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.

Result

The FOIA and Privacy Act claims were dismissed without prejudice. The remaining complaint was construed as a Section 2241 petition, which remained pending for the BOP’s response.