BLD-035                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 10-2172
                                  ___________

                          LESLIE CHARLES COHEN,
                           also known as L.C. Cohen,
                                                     Appellant

                                        v.

       HARLEY G. LAPPIN, Director, Federal Bureau of Prisons (BOP);
     ATTORNEY GENERAL OF THE UNITED STATES; JOHN MORTON;
         DEBORAH H. HICKORY; MICHAEL JOSEPH GROWSE;
           MARIA FRANCISCA MARRERO; MARVIN S. PITT
              ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                          (D.C. Civil No. 10-cv-00035)
                   District Judge: Honorable Kim R. Gibson
                  ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                              November 12, 2010
      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                       (Opinion filed: November 22, 2010)
                                    _________

                                    OPINION
                                    _________

PER CURIAM

    Appellant Leslie Cohen appeals from the District Court’s order dismissing his
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petition for a writ of habeas corpus, and from the court’s subsequent orders denying his

motions for reconsideration and relief from judgment. We will affirm.

       Cohen is a federal prisoner currently housed in the Moshannon Valley

Correctional Center in Philipsburg, Pennsylvania. Cohen filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2241 in November 2009, which was eventually

transferred to the United States District Court for the Western District of Pennsylvania.

The details of Cohen’s claims are set forth in the Magistrate Judge’s Report and

Recommendation and the District Court’s Memorandum Orders, and need not be

discussed at length here. Briefly, Cohen alleged in his § 2241 petition that a detainer

lodged by the Bureau of Immigration and Customs Enforcement and a “false

INTERPOL” detainer were adversely impacting his custody level and security

designation. Cohen set forth additional claims in his petition and addendum challenging

certain conditions of his confinement. Cohen requested various forms of injunctive relief

as well as monetary damages.

       Having concluded that Cohen could not proceed under 28 U.S.C. § 2241, the

District Court summarily dismissed the petition. The District Court determined that

Cohen was not “in custody” pursuant to the challenged detainers as required for relief

pursuant to § 2241, and that the remainder of his claims must be brought in an action

filed pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 

(1971).

The District Court thereafter denied Cohen’s reconsideration motion filed under Fed. R.

Civ. P. 59(e). The District Court rejected Cohen’s contention that his petition should
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have been converted into a civil rights complaint. The District Court reasoned that the

substantial differences between a habeas petition and a civil rights complaint -- including

the applicability of the fee provisions of the Prison Litigation Reform Act (“PLRA”) and

the procedural requirements peculiar to each type of action -- counseled against such a

conversion. Cohen was advised that the dismissal of his § 2241 petition was without

prejudice to his right to pursue his claims in a civil action if he so desired.

       Undeterred, Cohen sought further recourse in the District Court by filing a motion

for relief pursuant to Fed. R. Civ. P. 60(b). Cohen primarily complained that the District

Court’s dismissal would have a res judicata effect on any civil rights action he pursued,

thus rendering the dismissal without prejudice meaningless. Cohen requested, once

again, that the District Court construe his petition as a Bivens complaint or transfer it

back to the United States District Court for the Eastern District of Kentucky. Cohen’s

motion for relief fared no better than did his request for reconsideration. The District

Court reiterated that Cohen’s civil rights claims were dismissed without prejudice to his

right to raise them in a civil rights complaint, and noted that his other arguments had been

adequately addressed in its prior order. Accordingly, the District Court denied Cohen’s

Rule 60(b) motion, as well as his subsequent motion seeking reconsideration of that

decision. This timely appeal followed.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. Our

review of the District Court’s decision to dismiss Cohen’s § 2241 petition is plenary, see

Cradle v. U.S. ex rel. Miner, 

, 538 (3d Cir. 2002), and we review the District
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Court’s orders denying his motions filed under Rules 59(e) and 60(b) for an abuse of

discretion. See Max’s Seafood Café v. Quinteros, 

, 673 (3d Cir. 1999);

Brown v. Phila. Hous. Auth., 

, 342 (3d Cir. 2003).

       To the extent that Cohen seeks to challenge the detainers he claims have been

lodged against him, we agree with the District Court that Cohen is not “in custody”

pursuant to those detainers so as to seek relief pursuant to § 2241. See, e.g., Zolicoffer v.

United States Dep’t of Justice, 

, 540-41 (5th Cir. 2003) (citing cases). We

likewise agree that the remainder of the claims presented in Cohen’s petition do not

challenge the basic fact or duration of his imprisonment, which is the “essence of

habeas.” See Preiser v. Rodriguez, 

, 484 (1973). This includes Cohen’s

challenge to his security designation and custody classification. In the absence of the

type of change in custody level at issue in Woodall v. Federal Bureau of Prisons, 

(3d Cir. 2005), such an objection is simply not a proper challenge to the

“execution” of a sentence cognizable in a § 2241 proceeding. Thus, the District Court

correctly determined that Cohen’s remaining claims should be brought in a Bivens action.

See Leamer v. Fauver, 

, 542 (3d Cir. 2002) (“[W]hen the challenge is to a

condition of confinement such that a finding in plaintiff's favor would not alter his

sentence or undo his conviction, [a civil rights action] is appropriate.”).

       Finally, given the significant differences between the rules applicable to a

prisoner’s general civil litigation case and a request for habeas relief, we cannot conclude

that the District Court abused its discretion in denying Cohen’s post-judgment requests
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under Rules 59(e) and 60(b) to have his § 2241 petition re-characterized as a Bivens

complaint and transferred back to the District Court in Kentucky. As noted previously,

the District Court provided that its dismissal was without prejudice to Cohen’s ability to

pursue his claims in a Bivens action.

       For the foregoing reasons and because the appeal presents no substantial question,

we will summarily affirm the order of dismissal and the District Court’s subsequent

orders denying post-judgment relief. See Third Circuit LAR 27.4 and I.O.P. 10.6.




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