Gross v. Rios
ORDER & OPINION entered by Judge Joe Billy McDade on 4/16/2013. Except for the claim for reduction in good time credits, all claims are DISMISSED without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 cases in the United States District Courts. Petitioner shall filed a brief within twenty-one (21) days of this Order stating further facts related to the claim for reduction of good time credits. See full Order & Opinion attached. (cc: Pro Se Pet)(RK, ilcd)
Tuesday, 16 April, 2013 01:11:20 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ANDREW GROSS, III,
RICARDO RIOS, Warden,
Case No. 13-cv-1160
ORDER & OPINION
This matter is before the Court on Petitioner‟s Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 22411 (Doc. 1). Petitioner filed his Petition on April 8, 2013, and
paid the filing fee the same day. (Doc. 1). For the reasons stated below, Petitioner‟s
Petition is dismissed without prejudice as to all claims except for his claim of reduction of
good time credits.
Petitioner was convicted of one count of Negotiating and Manufacturing a
Counterfeit Security in the Eastern District of Michigan. (Doc. 1 at 1). He is currently
incarcerated in federal prison in Pekin, Illinois. (Doc. 1 at 1). From what the Court can
discern, Petitioner‟s challenges stem from two incident reports he received for remaining
in the prison law library rather than returning to his housing unit.
(Doc. 1 at 1).
In his Petition, Petitioner seeks the Court “to grant Petitioner‟s Writ of Habeas Corpus,
and requests for a restraining order against the Respondents.” (Doc. 1 at 1). Petitioner‟s
request for a restraining order does not refer to a jurisdictional basis, and the Court
believes that the remedy he seeks is the same as that which he seeks under the Writ of
Habeas Corpus. Thus, the Court will construe both motions as a single petition for a Writ
of Habeas Corpus under 28 U.S.C. § 2241.
Petitioner alleges that because of these two incident reports, the Disciplinary Hearing
Officer (the “DHO”) violated his rights by punishing him in the following ways: 1) The
DHO deducted over three and a half months of good time credits and took away his
phone and commissary privileges for over ninety days; 2) the DHO sanctioned him to 75
days of disciplinary segregation; 3) Petitioner was removed from protected custody in
administrative detention to the general population; 4) Petitioner‟s custody level points
were increased such that he was not able to transfer from a medium security facility to a
low security facility; and 5) Petitioner was denied access to the prison law library before
(Doc. 1 at 2-3).
Petitioner further alleges that the disproportionate
punishment he believes he received is in retaliation for exercising his rights by filing
lawsuits with the courts. (Doc. 1 at 5). He requests that “Respondents are ordered to
correct his custody points . . . reclassify him to a low [Federal Correctional Institution] ...
place the Petitioner back into protected custody status, administrative detention . . . lift
all sanctions, and transfer the Petitioner in a timly[sic] manner to another [Federal
Correctional Institution.]” (Doc. 1 at 5-6).
The Court, in its discretion, applies the Rules Governing Section 2254 Cases in the
United States District Courts to this case. See Rules Governing Section 2254 Cases in
the United States District Courts, R 1(b).2 This includes Rule 4, which requires that the
Court “promptly examine” the Petition, and dismiss it if it “plainly appears . . . that the
petitioner is not entitled to relief.” Pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, the Court has examined the Petition
See also Poe v. United States, 468 F.3d 473, 477 n.6 (7th Cir. 2006); Hudson v. Helman,
948 F. Supp. 810, 811 (C.D. Ill. 1996) (holding Rule 4 takes precedence over 28 U.S.C.
§ 2243‟s deadlines and gives court discretion to set deadlines).
and determined Petitioner cannot pursue habeas corpus relief for any of his claims
except for his claim for reduction of good time credits.
Section 2241 extends habeas corpus relief to prisoners “in custody in violation of
the Constitution or laws or treaties of the United States,” who “challenge the fact or
duration of confinement.” 28 U.S.C. § 2241; Hill v. Werlinger, 695 F.3d 644, 645 (7th Cir.
2012) (citing Walker v. O’Brien, 216 F.3d 626, 629 (7th Cir. 2000)). Thus, habeas corpus
exists as the avenue through which a prisoner may assert that he is unlawfully confined.
Habeas corpus is generally not, however, the appropriate avenue for a prisoner to
challenge the conditions of his confinement. Robinson v. Sherrod, 631 F.3d 839, 840 (7th
Cir. 2011) (holding that § 2241 petition cannot be used to challenge conditions of
confinement); see also Graham v. Broglin, 922 F.2d 379, 380-81 (7th Cir. 1991) (“If a
prisoner . . . is challenging merely the conditions of his confinement his proper remedy is
under civil rights law . . .”) (citing Preiser v. Rodriguez, 411 U.S. 475 (1973); Miller v.
McCollum, 695 F.2d 1044, 1046 (7th Cir. 1983)).
Here, all of Petitioner‟s grievances, except for the claim for reduction in good time
credits, challenge the loss of privileges and his placement in disciplinary segregation and
less desirable custody than that to which he believes he is entitled.
segregation and challenges to more restrictive custody, however, relate to the severity of
the custody, and not the fact or duration of custody. See Sandin v. Conner, 515 U.S. 472,
487 (1995) (finding that segregated confinement did not affect the duration of a prisoner‟s
sentence); see also Graham, 922 F.2d at 381 (If a prisoner “is seeking a different program
or location or environment, then he is challenging the conditions rather than the fact of
his confinement and his remedy is under civil rights law, even if, as will usually be the
case, the program or location or environment that he is challenging is more restrictive
than the alternative that he seeks.”). Accordingly, in cases where a prisoner “is not
challenging the fact of his confinement, but instead the conditions under which he is
being held, [the Seventh Circuit] has held that she must use a § 1983 or Bivens theory.”
Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir. 2005).
Here, because petitioner is a
federal prisoner, if a civil rights challenge can be made at all, it must be challenged
under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.
388 (1971). See Glaus, 408 F.3d at 382 (explaining that Bivens is the federal equivalent
of § 1983).
On the other hand, courts have repeatedly found that challenges to the deduction
of good time credits must be sought under habeas corpus relief, because those credits
directly impact the duration of the confinement. See Skinner v. Switzer, 131 S. Ct. 1289,
1301-02 (2011) (citing numerous cases in which courts refused to allow a § 1983 suit for
restoration of good-time credits because “„immediate release from [physical] confinement
or the shortening of its duration‟  cannot be sought under § 1983). Thus, Petitioner can
appropriately challenge the deduction of good time credits in his § 2241 petition.
Petitioner‟s claim, however, needs further information for Respondent to effectively
respond to this allegation. Petitioner simply states that he received incident reports for
interfering with the taking of count and for being in an unauthorized area when he
remained in the prison law library instead of returning to his housing unit, and
consequently lost over three and a half months of good time credits. (Doc. 1 at 1-2).
These allegations do not sufficiently explain the facts or basis for which Petitioner
believes that the deductions are unlawful. Thus, Petitioner must file a supplemental
brief within twenty-one days providing more information to support his claim that the
DHO unlawfully deducted his good time credits. If he does not, the Court will dismiss
As to Petitioner‟s civil rights claims, although district courts may exercise their
discretion to recharacterize a habeas corpus petition as a civil rights complaint, the
Court agrees with the Seventh Circuit‟s urging not to do so because of the numerous
disadvantages it could present to Petitioner.
See Robinson, 631 F.3d at 841
(recommending that district courts not recharacterize a habeas corpus petition as a civil
rights complaint because the suits differ in so many respects that it would disadvantage
Accordingly, the Court dismisses without prejudice all of Petitioner‟s
claims except for his claim for deduction of good time credits. Petitioner is free to file a
Bivens claim raising these challenges, if he wishes. Petitioner should note, however, that
a Bivens claim may or may not be viable, and if Petitioner chooses to pursue a Bivens
claim or an action challenging the prison‟s policy, an adverse decision might count
toward the three free civil rights claims he can make if eligible to proceed in forma
pauperis under 28 U.S.C. § 1915(g). See Glaus, 408 F.3d at 390 (advising district courts
to inform pro se prisoners that refiling under the proper label will probably have certain
IT IS THEREFORE ORDERED:
1. Except for the claim for reduction in good time credits, all claims are DISMISSED
without prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts.
2. The Clerk SHALL serve a copy of the Petition (Doc. 1) by certified mail upon
Respondent pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts.
3. Petitioner SHALL file a brief with this Court within twenty-one days of the date of
this Order stating further facts related to the claim for reduction of good time
credits, as described in this Order. Failure to do so will result in dismissal of this
claim for failure to prosecute.
4. Respondent SHALL file an answer, motion, or other responsive pleading within
fifty-six days after service of this Order. Respondent should address any facts
which would establish whether Petitioner‟s remaining claim is untimely or
Additionally, Respondent should address the merits of
Petitioner‟s claim and otherwise fully comply with Rule 5 of the Rules Governing
Section 2254 Cases in the United States District Courts.
5. Petitioner MAY file a reply to Respondent‟s response within twenty-eight days of
being served with the response.
6. Petitioner SHALL serve upon Respondent a copy of every further pleading or other
document submitted for consideration by the Court.
Entered this 16th day of April, 2013.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
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