Brown v. Roal

Filing 3

ORDER DISMISSING CASE without prejudice. Signed by Chief Judge David R. Herndon on 8/14/2012. (mtm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAMES J. BROWN, No. 62283-061,
Petitioner,
vs.

Case No. 12-cv-324-DRH

WENDY J. ROAL,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Chief Judge:
This case is before the Court on petitioner’s writ of habeas corpus.
Petitioner, an inmate in the Federal Correctional Institution in Marion, Illinois
(FCI-Marion), brings this habeas corpus action pursuant to 42 U.S.C. § 2241 to
challenge his inmate security classification and place of confinement. Petitioner
does not seek to challenge his conviction in this proceeding.
Rule 4 of the Rules Governing § 2254 Cases in the United States District
Courts provides that upon preliminary consideration by the district court judge,
“[i]f it plainly appears from the face of the petitioner and any exhibits annexed to
it that the petitioner is not entitled to relief in the district court, the judge shall
make an order for its summary dismissal and cause the petitioner to be notified.”
Rule 1(b) of those same Rules gives this Court the authority to apply the rules to
other habeas corpus cases. After carefully reviewing the petition in the present

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case, the Court concludes that petitioner is not entitled to relief, and the petition
must be dismissed.
Discussion
Petitioner pled guilty to the offense of Solicitation for Sex with a Person
under the Age of 18, by Use of a Computer pursuant to 18 U.S.C. § 2422(b) (Doc.
1 at p. 19). Petitioner was originally classified as a “low” security level at the pretrial stage but upon being sentenced in 2005 he was sent to a medium security
prison. In 2009, he was sent to FCI-Marion and labeled a “high” security level
(Doc. 1-1 at p. 1). Petitioner’s habeas petition now seeks a reclassification of his
security level. Petitioner argues that he is currently incorrectly labeled a “high”
security level and that he should be labeled a “moderate” security level, which
would allow him to be transferred to a prison near his home state of Florida.
Petitioner claims that the Bureau of Prisons (BOP) has refused to consider his
sentencing judge’s request to house petitioner in south Florida near his family and
that he believes that BOP and the warden of FCI-Marion is retaliating against him
for filing grievances.
At the outset, this Court must independently evaluate the substance of
Petitioner’s claim to determine if the correct statute- in this case 28 U.S.C. § 2241
– is being invoked. Bunn v. Conley, 309 F.3d 1002, 1006-07 (7th Cir. 2002);
Godoski v. United States, 304 F.3d 761, 763 (7th Cir. 2002) (the court must
evaluate independently the substance of the claim being brought, to see if correct
statute is being invoked). A petition for a writ of habeas corpus is the proper

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route “[i]f the prisoner is seeking what can fairly be described as a quantum
change in the level of custody – whether outright freedom, or freedom subject to
the limited reporting and financial constraints of bond or parole or probation.”
Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991). If, however, the prisoner
“is seeking a different program or location, or environment, then he is challenging
the conditions rather than the fact of confinement and his remedy is under civil
rights law.” Id.; see also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999).
Changes in a prisoner’s security level or changes in confinement from one prison
to another cannot be attacked using 28 U.S.C. § 2241. See Bunn, 309 F.3d at
1008; DeWalt v. Carter, 224 F.3d 607, 617 (7th Cir. 2000); Graham, 922 F.2d at
381; Pischke, 178 F.3d at 499. The change in classification and location, even if
granted, would not result in a “quantum change” in his level of custody.

As

petitioner is seeking a change in his security classification, he is not challenging
the fact of his confinement, but rather a condition of his confinement which is
more properly raised in a 42 U.S.C. § 1983 suit and not a habeas petition.
Petitioner has also raised a claim of retaliation against the warden at FCIMarion. Petitioner contends that the warden has retaliated against him by not
lowering his security classification in retaliation for petitioner’s filing of
grievances. Such a challenge also does not request a “quantum change in the level
of custody” but is more appropriately brought as a civil rights action.

While

courts sometimes construe a mistakenly labeled habeas corpus petition as a civil
rights complaint, the Seventh Circuit has held that district courts should not do

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this.

See Graham, 922 F.2d at 381-82 (collecting cases); Bunn, 309 F.3d at

1007; Moore v. Pemberton, 110 F.3d 22, 24, (7th Cir. 1997).

It would be

inappropriate to do so here, because petitioner would face a preliminary review
under the Prisoner Litigation Reform Act, Title VIII of Pub.L. No. 104-134, 110
Stat. 1321 (effective April 26, 1996). 28 U.S.C. § 1915. Petitioner would also be
responsible for paying a higher filing fee and could be assessed a “strike” if the
Court deemed the action frivolous, malicious, or failed to state a claim upon
which relief could be granted. 28 U.S.C. § 1915(g). Accordingly, the Court will not
construe petitioner’s petition as a civil rights claim under 42 U.S.C. § 1983.
Disposition
For the reasons stated above, Section 2241 cannot provide petitioner with
the desired relief, and this action is DISMISSED without prejudice.

IT IS SO ORDERED.
Signed this 14th day of August, 2012.

Digitally signed by
David R. Herndon
Date: 2012.08.14
13:22:38 -05'00'
Chief Judge
United States District Judge

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