Stevens v. Superintendent
Filing
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OPINION AND ORDER: The petition is DENIED pursuant to § 2254 Habeas Corpus Rule 4. Signed by Judge Rudy Lozano on 9/8/2011. cc: Stevens along with 42:1983 Cmp packet (tc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
TIMOTHY A. STEVENS,
Petitioner,
vs.
SUPERINTENDENT,
Respondent.
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CAUSE NO. 2:11-CV-305
OPINION AND ORDER
This matter is before the Court on the Petition under 28
U.S.C. Paragraph 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Timothy A. Stevens on August 22, 2011.
For
the reasons set forth below, the petition is DENIED pursuant to §
2254 HABEAS CORPUS RULE 4 and the clerk is DIRECTED to send Timothy A.
Stevens a 42 U.S.C. § 1983 Prisoner Complaint packet.
BACKGROUND
Timothy A. Stevens, a pro se prisoner, filed this habeas
corpus petition attempting to challenge the prison disciplinary
proceeding held at the Westville Correctional Facility on February
24, 2011, where he was found guilty of failing a urinalysis in
violation of B-202. As a result, he was given a suspended sentence
and there is no indication that he has lost any earned credit time
as a result of the proceeding in WCC11-02-0327.
However, as a
collateral consequence of being found guilty, he lost his job in
the law library.
Stevens filed a disciplinary hearing appeal and
a supplemental appeal to the superintendent who denied the first on
March 17, 2011, and the second on March 23, 2011.
In both, Stevens
was advised that, “you have further appeal rights.”
(DE # 1 at 15-
16). Nevertheless, it does not appear that Stevens filed any other
disciplinary hearing appeals.
Rather, he filed a classification
appeal which was denied on May 6, 2011.
(DE # 1 at 18).
Stevens
then initiated an offender grievance which was also denied.
1 at 29).
(DE #
Though Stevens has submitted a number of attachments,
there is no indication that he ever appealed to the Final Reviewing
Authority.
DISCUSSION
The results of a prison disciplinary hearing can only be
challenged in a habeas corpus proceeding where it results in the
lengthening of the duration of confinement.
F.3d 661, 664 (7th Cir. 2003).
Hadley v. Holmes, 341
Here, Stevens does not state that
he lost any earned credit time as a result of this hearing.
Nevertheless even if he had lost time, he still could not obtain
habeas corpus relief in this case because “to exhaust a claim, and
thus preserve it for collateral review under § 2254, a prisoner
must present that legal theory to the . . . Final Reviewing
Authority . . ..”
Moffat v. Broyles, 288 F.3d 978, 982 (7th Cir.
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2002).
Here, Stevens did not appeal to the Final Reviewing
Authority; therefore, he has not preserved any claims for review in
this Court.
State prisoners who want to challenge their convictions,
their sentences, or administrative orders revoking
good-time credits or equivalent sentence-shortening
devices, must seek habeas corpus, because they contest
the fact or duration of custody. State prisoners who
want to raise a constitutional challenge to any other
decision,
such
as
transfer
to
a
new
prison,
administrative segregation, exclusion from prison
programs, or suspension of privileges, must instead
employ § 1983 or another statute authorizing damages or
injunctions – when the decision may be challenged at all,
which under Sandin v. Conner will be uncommon.
Moran v. Sondalle, 218 F.3d 647, 650-51 (7th Cir. 2000) (citations
omitted).
Here, because this disciplinary proceeding did not
result in the lengthening of the duration of Stevens’ confinement,
habeas corpus relief is not available in this proceeding.
Though Stevens could have attempted to challenge the nonduration
lengthening
punishments
by
filing
a
civil
rights
complaint, he clearly did not file a civil rights complaint and it
would be inappropriate to convert his habeas corpus petition into
one.
If, as normally will be the case, conversion is improper,
the district court should include a short and plain
statement in its order that states: (1) that the court is
not making a decision on the ultimate merit of the case;
(2) that the prisoner may refile immediately under the
proper legal label, subject to the normal rules such as
those prohibiting frivolous lawsuits; and (3) that
refiling under the proper label will probably have
certain consequences. Had this procedure been in effect
for Glaus’s case, the court would have informed Glaus
that if he chose to pursue a [Civil Right’s] claim . . .
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an adverse decision might count toward the three free
civil rights claims the PLRA allows him. See 28 U.S.C. §
1915(g).
Glaus v. Anderson, 408 F.3d 382, 390 (7th Cir. 2005).
Thus, even though the Court will direct the Clerk to send
Stevens a 42 U.S.C. § 1983 Prisoner Complaint packet so that he may
(if he so chooses) immediately file a civil right’s claim, Stevens
should not infer that by doing so the Court has expressed any
opinion as to the wisdom of doing so or the merits of such a claim.
Furthermore, Stevens is cautioned that if he does so, he will have
to pay the $350.00 filing fee for such a case either in advance or
over time and that if the case is found to be meritless, he may
incur a “strike” pursuant to 28 U.S.C. § 1915(g).
CONCLUSION
For the reasons set forth above, the petition is DENIED
pursuant to § 2254 HABEAS CORPUS RULE 4 and the clerk is DIRECTED to
send Timothy A. Stevens a 42 U.S.C. § 1983 Prisoner Complaint
packet.
DATED: September 8, 2011
/s/RUDY LOZANO, Judge
United State District Court
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