Johnson v. Sloop

Filing 5

ORDER DISMISSING CASE with prejudice. Signed by Judge David R. Herndon on 11/20/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KURT JOHNSON,
No. 13177-081,
Petitioner,

C se No. 17

vs.

v–1010-DRH

TODD SLOOP,
Respondent.
MEMORANDUM AND ORDER
HERNDON, Distri t J d e
Pro se Petitioner Kurt Johnson, currently incarcerated in the Federal
Correctional Institution at Marion, Illinois (“Marion”), brings this habeas corpus
action pursuant to 28 U.S.C. § 2241 challenging his placement in the
Communication Management Unit (“CMU”) at Marion. Petitioner contends that the
CMU is not part of the Bureau of Prisons (“BOP”), so his being housed there
should be considered a waiver of jurisdiction over him by the United States.
(Doc. 1, p. 1-2).

Because of this alleged waiver, Petitioner argues that he is

entitled to immediate release from custody. (Doc. 1, p. 2).
This case is now before the Court for a preliminary review of the Petition 1

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After filing his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (Doc. 1)
(“Petition”), Petitioner filed a “Notice of Supplement to Petition” (Doc. 3). Petitioner seeks to
supplement his § 2241 petition with an exhibit that he claims is “not material to the Habeas
petition.” (Doc. 3, p. 1). Petitioner also claims that the exhibit is “not an amendment.” Id.
Because the supplement, by Petitioner’s admission, is neither material to the Petition nor an
amendment, and because the Court does not accept piecemeal amendments to pleadings because
an amended pleading supersedes and replaces the original pleading, rendering the original

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pursuant to Rule 4 of the Rules Governing Section 2254 Cases in United States
District Courts, which provides that upon preliminary consideration by the
district court judge, “[i]f it plainly appears from the petition and 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.
ro nd
Petitioner was sentenced to 300 months imprisonment on March 18, 2008
in United States v. Heineman et al., No. 05-cr-611-WHA (N.D. Cal. March 18,
2008) (“Criminal Case”). (Doc. 1, p. 1). Petitioner filed a Motion to Vacate under
28 U.S.C. § 2255 on April 21, 2011. Criminal Case at Doc. 749. The motion was
denied on July 14, 2011. Id. at Doc. 759. He also filed several appeals in that
case, none of which are relevant to the instant case. Petitioner was placed in the
CMU on March 11, 2013. (Doc. 1, p. 1). He claims the “CMUs are not the BOP
and regardless of their function or purpose are not a lawful extension of
Congressional Authority.” Id. Petitioner outlines the “tell-tale signs that CTU is
not BOP even though the color of BOP operations is used as part of the ruse and
fraud.” (Doc. 1, pp. 1-2). These include that “CMUs are not part of the BOP’s
funding . . . the security monitoring is CTU protocols . . . [and] [t]he CMUs
pleading void, the Court will not consider the Supplement (Doc. 3) in its preliminary review of the
Petition. See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004).
The Court will also not consider Petitioner’s “Evidentiary Supplement in Support of Petition” (Doc.
4) for similar reasons. Upon review of the proposed supplements, the Court notes that
considering the supplements along with the Petition would not change the outcome of this case.

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obstruct justice, steal legal work, violate postal laws, censor content, and prevent
any viable methods of regress from grievances[,]” among other things. (Doc. 1, p.
2).
Dis

ssion

Petitioner claims that because he “is currently housed in the Marion CMU
in violation of the order of the court . . . the United States has waived custodial
jurisdiction, entitling petitioner to immediate release.” Id. Petitioner asserts that
this “is not a collateral attack on the conviction which facts are irrelevant. This is
a condition of confinement claim which merges with a waiver of custody and
custodial jurisdiction.” Id. Petitioner further asserts that the United States “has
no standing to oppose this petition in that they have stipulated to the facts
through a foreign judgment with domestic comity by and through treaty to which
they are ratified parties.” 2 (Doc. 1, p. 3).
This Court is obligated to independently evaluate the substance of
Petitioner's claims to determine if the correct statute—in this case 28 U.S.C. §
2241—is being invoked. See 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 change in the level of custody-whether outright freedom,
or freedom subject to the limited reporting and financial constraints of bond or
The judgment Petitioner refers to is included in the proposed Supplement to the Petition at Doc.
3. Petitioner did not properly include the Supplement with his Petition, but even if he had, it
would have no bearing on the disposition of this case.

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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 v. Conley, 309 F.3d 1002, 1008 (7th Cir. 2002); DeWalt v.
Carter, 224 F.3d 607, 617 (7th Cir. 2000); Graham, 922 F.2d at 381; Pischke,
178 F.3d at 499.
Petitioner brings this action under the umbrella of habeas corpus law, 28
U.S.C. § 2241. However, he is challenging his placement in Marion's CMU and
claiming that, only as a result of this change in security level, should he be freed
from incarceration because the United States waived custody over him by placing
him there. This is a self-serving conclusion wholly unsupported by the law or the
sentence imposed in his criminal case, and Petitioner does not appear entitled to
habeas relief because of it. See Glaus v. Anderson, 408 F.3d 382, 386 (7th Cir.
2005) (affirming dismissal of § 2241 petition based on unconstitutional
conditions of confinement despite suggestion release was appropriate remedy).
His transfer to the CMU did not effect a quantum change in his custody and was
merely a change in security level, which is not susceptible to attack under § 2241.
See Singleton v. Walton, No. 14-cv-1430, 2015 WL 300421 (S.D. Ill. Jan. 22,
2015); Warren v. Walton, No. 14-cv-1412, 2015 WL 232354 (S.D. Ill. Jan. 16,

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2015); Warren v. Hollingsworth, No. 09-cv-666-JPG, 2009 WL 4894579 (S.D. Ill.
Dec. 11, 2009). See also Bunn, 309 F.3d at 1008; DeWalt, 224 F.3d at 617;
Graham, 922 F.2d at 381; Pischke, 178 F.3d at 499. Petitioner will remain a
federal inmate at USP-Marion (or whatever facility he may be transferred to next)
until his prison term is served.
Petitioner’s claims are, at their core, challenges to the conditions of his
confinement.

These conditions include the security monitoring protocols

employed in the CMU, “indeterminate administrative detention and other
constitutional violations,” theft of legal work, violation of postal laws, censorship
of content, and failure to address grievances.

(Doc. 1, p. 2).

Petitioner even

admits in his Petition that this “is a condition of confinement claim.” Id. As noted
above, a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is not
the proper vehicle for attacking conditions of confinement. Therefore, the petition
for a writ of habeas corpus must be summarily dismissed.
Petitioner's claims are akin to those raised by a federal prisoner in an
action brought pursuant to Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971).

While courts have, in the past,

construed a mistakenly-labeled habeas corpus petition as a civil rights complaint,
see, e.g., Graham, 922 F.2d at 381–82 (collecting cases), the Seventh Circuit has
made it clear that district courts should not resort to this practice.

Bunn v.

Conley, 309 F.3d 1002, 1007 (7th Cir. 2002); Moore v. Pemberton, 110 F.3d 22,
24 (7th Cir. 1997). This is particularly true where conversion of the case may

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lead to unfavorable consequences for Petitioner under the Prison Litigation
Reform Act. See generally Bunn, 309 F.3d at 1004–07. These consequences
include possible exhaustion defenses, whether Petitioner has named the correct
defendants, and whether he is able to pay the proper filing fee for the action
(presently $400.00), as opposed to the fee for a petition for writ of habeas corpus
(presently $5.00). For these reasons, the Court will not re-characterize the instant
habeas petition as a complaint brought pursuant to Bivens, and it offers no
opinion regarding the merits of Petitioner's Bivens claims.
Disposition
Section 2241 cannot provide Petitioner with the appropriate relief, so this
action is summarily DISMISSED with prejudice.
The Clerk of Court is directed to enter judgment in favor of Respondent.
IT IS SO ORDERED.

Judge Herndon
2017.11.20
09:52:24 -06'00'
United St tes Distri t J d e

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