Tisthammer v. Walton

Filing 6

ORDER DISMISSING CASE WITHOUT PREJUDICE to petitioner bringing his claims in a properly filed Bivens action. The Clerk is DIRECTED to mail petitioner a blank civil rights complaint form and instructions, along with a blank form motion/affidavit to proceed without prepaying fees or costs. Signed by Chief Judge David R. Herndon on 1/7/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARL TISTHAMMER, No. 46827-112,
Petitioner,
vs.
J. S. WALTON,
Respondent.

Case No. 12-cv-1266-DRH
MEMORANDUM AND ORDER

HERNDON, Chief District Judge:
Petitioner, currently incarcerated in the USP-Marion, brings this habeas
corpus action pursuant to 28 U.S.C. § 2241 to challenge the execution of his
federal sentence. The petition, filed on December 14, 2012, claims that prison
officials have been deliberately indifferent to his serious medical needs. Petitioner
was convicted in March 2010 after a jury trial in the Central District of California,
and sentenced to 420 months imprisonment for production, receipt, and
possession of child pornography. United States v. Tisthammer, Case No. 08-cr0057 (C.D. Cal.).

His conviction was affirmed by the United States Court of

Appeals, Ninth Circuit, on June 20, 2012.

Petitioner does not seek to challenge

his sentence or conviction in the instant action.
Rule 4 of the Rules Governing § 2254 Cases in United States District Courts
provides that upon preliminary consideration by the district court judge, “[i]f it
plainly appears from the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court, the judge must dismiss the petition and
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direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives this Court
the authority to apply the rules to other habeas corpus cases.

After carefully

reviewing the petition in the present case, the Court concludes that petitioner is
not entitled to habeas relief, and the petition must be dismissed. However, the
dismissal shall be without prejudice to petitioner re-filing the action as a civil
rights claim. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
Petitioner asserts that he was prescribed several medications for acid reflux
and chronic pain, and had been provided with these medicines for over four years
while imprisoned at other facilities (Doc. 1, pp. 2, 4). However, the medical staff
at Marion cancelled his prescriptions and told him to purchase over the counter
medications from the commissary instead. Petitioner also takes issue with the
$2.00 co-payment that is assessed for all medical visits, even where an inmate has
a chronic condition, in violation of Bureau of Prisons policy (Doc. 1, p. 5). He
argues that these actions violate his Eighth Amendment right to proper medical
care.
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) (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
route “[i]f the prisoner is seeking what can fairly be described as a quantum

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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).
The federal habeas corpus statute cannot be used to challenge conditions of
confinement. See 28 U.S.C. § 2241(c)(3); Glaus v. Anderson, 408 F.3d 382, 38687 (7th Cir. 2005); Williams v. Wisconsin, 336 F.3d 576,579 (7th Cir. 2003);
DeWalt v. Carter, 224 F.3d 607,617 (7th Cir. 2000); Pischke, 178 F.3d at 500;
Graham, 922 F.2d at 381.

Without commenting on the merits of petitioner’s

claim, a complaint that prison medical staff were deliberately indifferent to an
inmate’s serious medical condition is, without a doubt, a challenge to the
conditions of confinement that falls squarely within the realm of a civil rights
action. Petitioner does not raise any issue that would affect the level or duration
of his imprisonment.
While, in the past, courts sometimes construed a mistakenly-labeled habeas
corpus petition as a civil rights complaint, see, e.g., Graham, 922 F.2d at 381-82
(7th Cir. 1991) (collecting cases), in more recent cases the Seventh Circuit has
held that district courts should not do this. Bunn v. Conley, 309 F.3d 1002,
1007 (7th Cir. 2002); Moore v. Pemberton, 110 F.3d 22, 24 (7th Cir. 1997). It
would be particularly inappropriate to recast petitioner’s action here, because

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petitioner would face obstacles under the Prison Litigation Reform Act, Title VIII
of Pub. L. No. 104-134, 110 Stat. 1321 (effective April 26, 1996). See generally
28 U.S.C. § 1915. Specifically, petitioner is responsible for paying a much higher
filing fee of $350.

Furthermore, petitioner might be assessed a “strike” if the

Court determined that petitioner’s action was frivolous, malicious, or failed to
state a claim upon which relief may be granted. 28 U.S.C. § 1915(g). Therefore,
the Court will not re-characterize the instant habeas petition as a complaint under
the civil rights act.
Pending Motion
Petitioner’s motion to appoint counsel (Doc. 4) is DENIED AS MOOT.
Disposition
Because petitioner’s claim is not cognizable under 28 U.S.C. §2241, this
action is DISMISSED.

However, the dismissal is WITHOUT PREJUDICE to

petitioner bringing his claims in a properly filed Bivens action.
The Clerk is DIRECTED to mail petitioner a blank civil rights complaint
form and instructions, along with a blank form motion/affidavit to proceed
without prepaying fees or costs.
The Clerk shall close this case.
IT IS SO ORDERED.
Signed this 6th day of January, 2013.

David R.
Herndon
2013.01.06
16:02:58 -06'00'

Chief Judge
United States District Court
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