Murray v. Bledsoe

HLD-105 (February 28, 2011) PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4397

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JAMES MURRAY, a/k/a James Hines,

Appellant

v.

B.A. BLEDSOE; D. YOUNG, ASSOCIATE WARDEN;

MR. BREWER, UNIT MANAGER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 3:10-cv-02309)

District Judge: Honorable Richard P. Conaboy

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Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

February 28, 2011

Before: MCKEE, Chief Judge, ALDISERT

and WEIS Circuit Judges.

(Filed: June 10, 2011)

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OPINION

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PER CURIAM.

In November 2010, James Murray, a federal prisoner

currently housed in the Special Management Unit (“SMU”) at

the United States Penitentiary in Lewisburg, Pennsylvania,

filed in the District Court a pro se petition for judicial review

of a decision of the Federal Bureau of Prisons (“BOP”).

Murray‟s petition claimed that he has a constitutional right

under the Ninth Amendment to choose his SMU cellmate.

Before filing in the District Court, Murray had sought an

administrative remedy from the BOP, alleging a right to

choose his cellmate and requesting that the BOP allow him to

do so. The BOP found Murray had no such right and denied

his request. In his petition for judicial review, Murray

requested that the District Court set aside the BOP‟s

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decision.1 The District Court denied Murray‟s petition as

meritless. Murray now appeals from the District Court‟s

judgment; requests that we take judicial notice of certain case

law, pleadings, and other documents, and appoint counsel on

his behalf; and moves to amend deficient judicial statements.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and

may affirm the District Court‟s judgment on any basis

supported by the record. See Tourscher v. McCullough, 184

F.3d 236, 240 (3d Cir. 1999). Because this appeal does not

present a substantial question, we will summarily affirm the

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Murray styled his petition as a challenge to the

BOP‟s decision under the Administrative Procedure Act

(“APA”). BOP decisions about where to house inmates,

however, are exempt from challenge under the APA. See 18

U.S.C. § 3625 (explaining that the APA‟s provisions for

judicial review of administrative agency decisions, at 5

U.S.C. §§ 701-06, do not apply to decisions made under 18

U.S.C. §§ 3621-26, including BOP decisions about where to

house inmates governed by 18 U.S.C. § 3621(b)). Perhaps

with this in mind, Murray‟s filing was docketed in the District

Court as a habeas petition. The filing was probably not a true

habeas petition because it did not challenge the “very fact or

duration” of Murray‟s imprisonment, see Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973), and would probably be

most accurately classified as an action under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971). How the petition is classified is not of great

importance, however, because the District Court properly

denied Murray‟s claim as lacking in merit.

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District Court‟s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

Murray argues that the Ninth Amendment “protects

rights that are „fundamental[,]‟” such as “rights to marry; to

raise a family; the right to an abortion[,]” and the right to

choose one‟s cellmate. Although there is some authority for

the proposition that the Ninth Amendment is a source of

fundamental rights, see Griswold v. Connecticut, 381 U.S.

479, 493 (1965) (Goldberg, J., concurring), no court of which

we are aware has held that the Ninth Amendment establishes

a right to choose one‟s cellmate. To the contrary, those courts

confronted with the question of whether inmates have a

constitutional right to choose a cellmate have held that no

such right exists. See Harris v. Greer, 750 F.2d 617, 618 (7th

Cir. 1984); see also Cole v. Benson, 760 F.2d 226, 227 (8th

Cir. 1985) (per curiam) (inmate has no Eighth Amendment

right to be placed in a particular cell). Accordingly, the

District Court properly denied this claim.

In his brief in opposition to summary action, Murray

advises that, since the time he filed his petition in the District

Court, he has been placed with a desirable cellmate. He still

wishes to proceed with the appeal, however, in order to

challenge the broader BOP policy disallowing prisoners to

choose their cellmates. Murray did not raise this broader

challenge in the District Court; therefore, it is waived on

appeal.

Because this appeal does not present a substantial

question, we will summarily affirm the District Court‟s

judgment. Murray‟s request for appointment of counsel,

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request to take judicial notice, and motion to amend deficient

judicial statements will be denied.

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