Taylor v. Hawkins et al

Filing 6

ORDER DISMISSING CASE without prejudice, a certificate of appealability shall NOT be issued. The Clerk of Court shall send petitioner a copy of the Pro Se Litigant Guide and a Section 1983 complaint form. Signed by Chief Judge David R. Herndon on 4/30/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
FRANCHOT B. TAYLOR,
#K-02324,
Petitioner,
vs.

Case No. 13-cv-00350-DRH

LT. HAWKINS,
RANDY DAVIS,
BEAU HARTLINE,
BRENT CAMPBELL,
GINA ALLEN, and
Jackie miller,
Respondents.
MEMORANDUM AND ORDER
HERNDON, Chief District Judge:
Petitioner Franchot B. Taylor, currently incarcerated in the Big Muddy
River Correctional Center (“Big Muddy”), brings this habeas corpus action
pursuant to 28 U.S.C. § 2254, after paying the required $5.00 filing fee.
Petitioner was placed in segregation for a day in February 2013, after which
he discovered that his personal property had vanished. According to petitioner
Taylor, there is a conspiracy and theft ring among guards and administrators at
Big Muddy that deprives inmates of their property without due process of law, in
violation of the Fourteenth Amendment. In addition, petitioner complains that he
was again denied due process when he told one of the respondents, Major
Campbell, that he could not return to general population from segregation due to

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threats from another inmate, Campbell warned Petitioner that refusing housing
would result in placement in segregation, loss of good time credits and a
demotion in grade. After petitioner complained about the aforementioned issues,
he claims that his family has faced unspecified retaliation in violation of the First
Amendment—apparently by individuals outside of prison who are affiliated with
the inmate who threatened petitioner. Petitioner seeks compensatory damages,
and the criminal prosecution of those involved in the conspiracy and theft ring.
Rule 4 of the Rules Governing Section 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 direct the clerk to notify the petitioner.”
Without commenting on the merits of petitioner’s claims, it is wellestablished that a habeas corpus petition is used to challenge the fact or duration
of a prisoner’s confinement, and challenges to the prisoner’s conditions of
confinement must be brought in an action under 42 U.S.C. § 1983 or other
federal statute, not a petition for habeas corpus. See Cochran v. Buss, 381 F.3d
637, 639 (7th Cir. 2004); Bunn v. Conley, 309 F.3d 1002, 1007 (7th Cir. 2002);
Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000). Therefore, Taylor may
not use this Section 2254 petition to redress his grievances.
Insofar as Petitioner Taylor contends Major Campbell warned him that
refusing housing would result in placement in segregation, loss of good time

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credits and a demotion in grade, that warning does not mean that those penalties
were actually imposed; therefore Section 2254 is not implicated.
IT IS THEREFORE ORDERED that petitioner Franchot B. Taylor’s
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED
without prejudice. All pending motions shall be deemed moot.
Should petitioner desire to appeal this Court’s ruling dismissing his
petition for a writ of habeas corpus, he must first secure a certificate of
appealability, either from this Court or from the court of appeals. See FED. R.
APP. P. 22(b); 28 U.S.C. § 2253(c)(1). Pursuant to 28 U.S.C. § 2253, a certificate
of appealability may issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.”
This requirement has been interpreted by the Supreme Court to mean that
an applicant must show that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). Petitioner need not show that his appeal will succeed,
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), but petitioner must show
“something more than the absence of frivolity” or the existence of mere “good
faith” on his part. Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893
(1983)). If the district court denies the request, a petitioner may request that a
circuit judge issue the certificate. FED. R. APP. P. 22(b)(1)-(3).
For the reasons detailed above, the Court has determined that petitioner
has not stated any grounds for relief pursuant to 28 U.S.C. § 2254. Furthermore,

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the Court finds no basis for a determination that its decision is debatable or
incorrect. Thus, petitioner has not made “a substantial showing of the denial of a
constitutional right.”
IT IS THEREFORE ORDERED that a certificate of appealability shall NOT
be issued.
Petitioner is ADVISED that if he elects to file a civil rights action pursuant
to 42 U.S.C. § 1983, he should first exhaust available administrative remedies,
and the Court’s form complaint should be used. A $400.00 filing fee (effective
May 1, 2013) will also be applicable.

The Clerk of Court shall send petitioner a

copy of the Pro Se Litigant Guide and a Section 1983 complaint form.
IT IS SO ORDERED.

Digitally signed by
David R. Herndon
Date: 2013.04.30
09:46:03 -05'00'

DATED: April 30, 2013

Chief Judge
United States District Court

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