Lewis v. Dr. Mark et al
ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud, granting 8 MOTION to Expedite filed by Brian R. Lewis. IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this cause, including Petitioners Motion to Appoint Counsel (Doc. 6) and Motion for Discovery Material (Doc. 8) is REFERRED to United States Magistrate Judge Clifford J. Proud for further pre-trial proceedings which shall be expedited. Signed by Judge David R. Herndon on 11/29/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN R. LEWIS
Case No. 17 cv–1029 DRH
DR. MARK, and
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Brian Lewis, who is currently incarcerated in the Federal
Correctional Institution in Marion, Illinois (“Marion”), filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). In the Petition, he
requests a transfer to a residential re-entry center (i.e., a halfway house) and
claims, among other things, that he was deprived of due process when his
approval for 12 months in a halfway house was rescinded. (Doc. 1).
The Court concludes that the Petition survives preliminary review under
Rule 4 and Rule 1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts.
In seeking an expedited transfer to a halfway house, Petitioner claims
that he was approved to receive 12 months in a halfway house under the
Second Chance Act, 1 with August 1, 2017 as his tentative release date. (Doc. 1,
pp. 7, 11). He was then transferred to another institution, where he claims the
12 months were taken away without due process, despite the fact that he “met
the criteria for [the] full term allowed under the Act.” (Doc. 1, p. 7). Petitioner
also attempts to bring a defamation claim, a retaliation claim under the First
Amendment, and a breach of contract claim. (Doc. 1, pp. 7-8).
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.” Rule 1(b) of
those Rules gives this Court the authority to apply the rules to other habeas
A petition seeking habeas corpus relief is appropriate under 28 U.S.C. §
2241 when a petitioner challenges the fact or duration of confinement. Preiser
v. Rodriguez, 411 U.S. 475, 490 (1973); Graham v. Broglin, 922 F.2d 379, 38081 (7th Cir. 1991). A § 2241 petition is also appropriate if a prisoner seeks
release from custody because his custody violates the Constitution or federal
laws. Collins v. Holinka, 510 F.3d 666, 667 (7th Cir. 2007). In this case,
The Second Chance Act permits the Bureau of Prisons to consider placing inmates nearing the end of
their sentences in pre-release community confinement. See 18 U.S.C. § 3624(c). This may include placement in a
community correctional facility, such as a halfway house, or in home detention. 18 U.S.C. § 3624(c)(1), (2); 28
C.F.R. § 570.20.
Petitioner seeks what he presumably believes to be a quantum change in
confinement. If a prisoner seeks a “quantum change in the level of custody,”
such as release from prison, then a habeas petition is the appropriate vehicle;
however, if release is actually unavailable, then a civil rights action is
appropriate and the habeas petition must be dismissed on its merits, albeit
without prejudice to the claim being brought in a civil rights action. See Glaus
v. Anderson, 408 F.3d 382, 387-89 (7th Cir. 2005).
Here, outright release is not an option. In fact, Petitioner does not even
request release. Rather, he seeks a transfer to a halfway house. This would
appear to be more like the challenges to requests for work release, transfer
between prisons, or changes in housing quarters that have been held to
constitute civil rights actions as opposed to habeas corpus proceedings.
Pischke v. Litscher, 178 F.3d 497,499 (7th Cir. 1999); Falcon v. U.S. BOP, 52
F.3d 137, 138 (7th Cir. 1995); Adams v. Beldsoe, 173 F. App’x 483, 484 (7th
However, there is some disagreement among the district courts in the
Seventh Circuit as to whether a habeas corpus petition is the proper vehicle to
make a claim regarding halfway house placement. See Woolridge v. Cross, 2014
WL 4799893 (S.D. Ill. Sept. 26, 2014) (finding that claim must be brought
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971));
Stokes v. Cross, 2014 WL 503934, at *2 (S.D. Ill. Feb. 2014) (same); Moody v.
Rios, 2013 WL 5236747 (C.D. Ill. Sept. 17, 2013) (finding that halfway house
placement can be addressed under § 2241); Feazell v. Sherrod, 2010 WL
5174355 (S.D. Ill. Dec. 16, 2010) (same); Pence v. Holikna, 2009 WL 3241874
(W.D. Wis. Sept. 29, 2009) (same).
Given this uncertainty in the law and the allegations in the Petition, it
does not plainly appear that the Petitioner is not entitled to relief in this action.
However, Petitioner’s retaliation, defamation, and breach of contract claims will
be dismissed from this action, as they do not challenge the fact or duration of
Petitioner’s confinement and are clearly more appropriate claims for a civil
Petitioner has not named the proper respondent in this habeas action.
In a habeas corpus proceeding, an individual respondent who has the authority
to bring the petitioner before the Court must be named. This individual is the
prisoner's custodian, i.e., the warden of the prison where the inmate is
confined. See Rumsfeld v. Padilla, 542 U.S. 426, 442, 447 (2004); Kholyavskiy
v. Achim, 443 F.3d 946, 948-49 (7th Cir. 2006). The Court will therefore
dismiss the named defendants and add the Warden of Marion as a defendant
in this action.
Petitioner’s Motion to Expedite (Doc. 8) is hereby GRANTED.
IT IS HEREBY ORDERED that Respondents MARK and BELL are
DISMISSED from this action without prejudice to Petitioner bringing a lawsuit
pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) against
them. The Clerk is DIRECTED to ADD the WARDEN OF MARION as the
Respondent in this action.
IT IS FURTHER ORDERED that, to the extent Petitioner seeks to bring
claims for retaliation under the First Amendment, breach of contract, and/or
defamation in this action, these claims are DISMISSED from this action
without prejudice to Petitioner bringing a lawsuit pursuant to Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971) on these issues.
IT IS FURTHER ORDERED that Respondent WARDEN OF MARION
shall answer the Petition or otherwise plead within thirty (30) days of the date
this order is entered (on or before December 29, 2017). 2 This preliminary order
to respond does not, of course, preclude the government from raising any
objection or defense it may wish to present. Service upon the United States
Attorney for the Southern District of Illinois, 750 Missouri Avenue, East St.
Louis, Illinois, shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2), this
cause, including Petitioner’s Motion to Appoint Counsel (Doc. 6) and Motion for
Discovery Material (Doc. 8) is REFERRED to United States Magistrate Judge
Clifford J. Proud for further pre-trial proceedings which shall be expedited.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
United States Magistrate Judge Proud for disposition, as contemplated by Local
The response date ordered herein is controlling. Any date that CM/ECF should generate in the course of
this litigation is a guideline only.
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties consent to such a
Petitioner is ADVISED of his continuing obligation to keep the Clerk (and
each opposing party) informed of any change in his whereabouts during the
pendency of this action. This notification shall be done in writing and not later
than seven days after a transfer or other change in address occurs. Failure to
provide such notice may result in dismissal of this action. See FED. R. CIV. P.
IT IS SO ORDERED.
UNITED STATES DISTRICT JUDGE
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