Lindsay v. Mitchell, 71-3213 Summary Calendar.
| Citation | 455 F.2d 917 |
| Decision Date | 25 February 1972 |
| Docket Number | No. 71-3213 Summary Calendar.,71-3213 Summary Calendar. |
| Parties | Melvin LINDSAY, Petitioner-Appellant, v. John N. MITCHELL, United States Attorney General, et al., Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Melvin Lindsay, pro se.
John N. Mitchell, Atty. Gen., Dept. of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Charles A. Pannell, Jr., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Lindsay, a federal prisoner, appeals from the denial of his pro se petition for writ of habeas corpus against the AttorneyGeneral of the United States and the warden of the United States Penitentiary at Atlanta, Georgia. The District Court treated the petition as one for writ of mandamus.
Appellant alleges that his transfer to the federal penitentiary at Atlanta, Georgia, from the Lewisburg, Pennsylvania, penitentiary is cruel and unusual punishment inasmuch as it deprives him of seeing his family who reside in Pennsylvania and are unable to travel to Atlanta because of indigency. The District Court properly dismissed this claim. 18 U.S.C. § 4082; Mullican v. United States, 5 Cir., 1958, 252 F.2d 398. Appellant further alleges that he is being deprived of good-time credit, which issue the District Court failed to consider, necessitating our remanding for an evidentiary hearing and appropriate findings and conclusions.
Although the petition is inarticulately drawn, it is apparent therefrom that appellant is protesting the arbitrary failure of prison authorities to restore forfeiture of credit for the alleged earned good time. It is immaterial that the remedy sought will not result in his immediate release. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). See also Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Glazier v. Hackel, 9 Cir., 1971, 440 F.2d 592. While forfeiture of good-time credit is a function which addresses itself to prison administration, subject to supervision by the Attorney General of the United States, 18 U.S.C. §§ 4165, 4166; Gilchrist v. United States, 5 Cir., 1970, 427 F.2d 1132, an alleged abuse of that function constitutes proper grounds for federal judicial review. Sexton v. United States, 5 Cir., 1970, 429 F.2d 1300. In the absence of findings by the District Court, we have no way of determining whether such abuse exists. Exhibits attached to appellant's ...
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...have found that this type of incidental separation does not amount to a violation of the Eighth Amendment. See Lindsay v. Mitchell , 455 F.2d 917, 918 (5th Cir. 1972) (concluding that transfer of an inmate to another prison where his family cannot visit does not constitute cruel and unusual......
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