Fagan v. Walton

Filing 4

ORDER DISMISSING CASE without prejudice to the claim being re-filed as a civil rights action. Signed by Chief Judge David R. Herndon on 6/28/2013. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MELVIN FAGAN, # 08072-027,
Petitioner,
vs.

Case No. 13-cv-556-DRH

J.S. WALTON,
Respondent.

MEMORANDUM AND ORDER
HERNDON, Chief Judge:
Petitioner, currently incarcerated in the United States Penitentiary at
Marion, brings this habeas corpus action pursuant to 28 U.S.C. § 2241.

The

petition was filed on June 13, 2013, and claims that petitioner suffered a taking
of his property without being afforded due process. Specifically, he was found
guilty of a disciplinary infraction (code 328 – receiving money without
authorization, from another inmate) in October 2012 (Doc. 1, pp. 1, 5). As a
result, the respondent warden made a “discretionary decision” to encumber
petitioner’s inmate trust fund account in the amount of $1,377.11, as an
“additional sanction” for the disciplinary violation (Doc. 1, pp. 12). He was told
that the funds would be returned to him upon his release from incarceration,
projected to be in 2019, but he would not have access to the money in the
meantime. This encumbrance of the funds was done without any due process
hearing.

Respondent explained that no hearing was necessary because his
Page 1 of 5

property was not being confiscated (Doc. 1, pp. 2, 5, 14). Petitioner brings this
action seeking release of the funds, claiming his constitutional rights to
procedural due process have been violated by respondent’s 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
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 relief, and the petition must be dismissed.
This Court is obligated to 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 only “[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).
Clearly, the instant pleading makes no claim that petitioner is entitled to

Page 2 of 5

any change in his custody level. Instead, he seeks redress for what he perceives is
a violation of his constitutional rights by a person acting under the color of federal
authority. Such a challenge lies squarely within the realm of an action pursuant
to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

See also

Graham, 922 F.2d at 381(if prisoner is challenging the conditions rather than the
fact of confinement, his remedy is under civil rights law); Pischke v. Litscher, 178
F.3d 497, 500 (7th Cir. 1999).
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
(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 he 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 would be responsible for paying a much higher filing fee of
$350.00 ($400.00 if he is denied leave to proceed in forma pauperis or “IFP”).1
Therefore, the Court will not re-characterize the instant habeas petition as a civil
rights complaint.
The Court also notes that cases found on the electronic docket of the
1

As of May 1, 2013, the Judicial Conference of the United States added a new $50.00
administrative fee to all civil actions (excluding habeas actions) filed on or after that date. This fee
does not apply to persons granted IFP status, thus the filing fee remains $350.00 when a motion
to proceed IFP is approved. However, if IFP status is denied, the plaintiff will be assessed the full
$400.00 filing fee.
Page 3 of 5

Northern District of Indiana, where petitioner was convicted, reflect that he has
accumulated more than three “strikes” for bringing civil cases that have been
dismissed as frivolous. See Doc. 4 in Fagan v. Reynolds, Case No. 06-cv-777
(N.D. Ind., Order of Dec. 11, 2006). Therefore, he cannot bring a new civil rights
action in forma pauperis while he remains a prisoner, unless he can show that he
is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Based on
the contents of petitioner’s pleadings in this case, he can make no such showing
as to this claim. Thus, if he were to re-file the instant claim as a Bivens action, he
would be required to pre-pay the filing fee of $400.00 in full. Further, the claim
would be subject to a merits review under 28 U.S.C. § 1915A, and would be
subject to dismissal if it fails to state a constitutional claim upon which relief may
be granted.
IT IS HEREBY ORDERED that this action is DISMISSED without
prejudice to the claim being re-filed as a civil rights action.
The Clerk is DIRECTED to close this case and enter judgment accordingly.
If petitioner wishes to appeal this dismissal, he may file a notice of appeal
with this court within thirty days of the entry of judgment. FED. R. APP. P. 4(a)(4).
A motion for leave to appeal in forma pauperis should set forth the issues
petitioner plans to present on appeal.

See FED. R. APP. P. 24(a)(1)(C).

If

petitioner does choose to appeal and is allowed to proceed IFP, 2 he will be
required to pay a portion of the $455.00 appellate filing fee in order to pursue his

2

The “three strikes” restrictions on leave to proceed IFP do not apply in an appeal from a habeas
action.
Page 4 of 5

appeal (the amount to be determined based on his prison trust fund account
records for the past six months) irrespective of the outcome of the appeal. See
FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999);
Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A timely motion filed
pursuant to Federal Rule of Civil Procedure 59(e) may toll the 30-day appeal
deadline. It is not necessary for petitioner to obtain a certificate of appealability
in this § 2241 action. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).

David R.
Herndon
2013.06.28
09:29:23 -05'00'

IT IS SO ORDERED.
DATED: June 28, 2013

Chief Judge
United States District Court

Page 5 of 5