Ward v. Wolfenbarger

Filing 217

ORDER denying 201 Motion for Order to Show Cause. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,
Petitioner,

Civil Nos. 03-CV-72701/72858-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
HUGH WOLFENBARGER,
Respondent,
____________________________/

OPINION AND ORDER DENYING PETITIONER’S EMERGENCY MOTION FOR
AN ORDER TO SHOW CAUSE
This habeas case is on remand from the United States Court of Appeals
from the Sixth Circuit. Counsel has been appointed to represent petitioner and
several extensions of time have been given to the parties to file supplemental
briefs.
Petitioner has filed an emergency motion for a show cause order.
Petitioner claims that prison authorities have improperly placed him in
administrative or protective segregation. Petitioner also requests a transfer from
the Oaks Correctional Facility to a facility closer to his counsel in Detroit,
Michigan. This Court previously denied petitioner’s motion for a transfer. (See
Dkt. # 198). For the reasons that follow, the motion is denied without prejudice.
Petitioner’s challenge to his placement in segregation cannot be
maintained in a habeas action, but must be brought in a separate civil rights
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complaint filed under 42 U.S.C. § 1983.
Where a prisoner is challenging the very fact or duration of his physical
imprisonment and the relief that he seeks is a determination that he is entitled to
immediate release or a speedier release from that imprisonment, his sole federal
remedy is a petition for writ of habeas corpus. Preiser v. Rodriguez, 411 U.S.
475, 500 (1973). However, habeas corpus is not available to prisoners who are
complaining only of mistreatment during their legal incarceration. See Lutz v.
Hemingway, 476 F. Supp. 2d 715, 718 (E.D. Mich. 2007). Claims which
challenge the conditions of confinement should be brought as a civil rights
complaint pursuant to 42 U.S.C.§ 1983. Id., See also Austin v. Bell, 927 F. Supp.
1058, 1066 (M.D. Tenn. 1996).
Petitioner’s challenge to his placement in segregation cannot be
maintained in the present habeas action because it involves a challenge to the
conditions of his confinement. See Cohen v. Lappin, 402 F. App’x. 674, 676 (3d
Cir. 2010)(federal prisoner's challenge to his security designation and custody
classification could not be brought under federal general habeas statute, since
they did not challenge basic fact or duration of his imprisonment, and would be
more appropriately brought in a Bivens action); McCall v. Ebbert, 384 F. App’x.
55, 575-58 (3d Cir. 2010)(federal prisoner’s challenge to security classification
involved a condition of confinement which was non-cognizable in § 2241 habeas
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petition); Levi v. Ebbert, 353 F. App’x. 681, 682 (3d Cir. 2009)(prison inmate’s
claims, that his custody classification score was wrongly calculated and that he
should be transferred to prison camp or low-security prison, did not challenge the
fact or length of his sentence or confinement, did not lie at the “core of habeas,”
and were thus not cognizable in habeas petition); Frazier v. Hesson, 40 F. Supp.
2d 957, 964-65 (W.D. Tenn. 1999)(confinement of inmate to segregation,
transfers, and increased security classifications are not “custody” within the
meaning of habeas corpus statute; they do not directly lengthen the duration of
imprisonment). Petitioner should thus file a separate civil rights complaint
challenging his placement in administrative or protective segregation.
Petitioner has also again requested to be transferred back to a prison that
is located in the Eastern District of Michigan.
Fed. R.App. P. 23(a) states:
“Transfer of Custody Pending Review. Pending review of a decision
in a habeas corpus proceeding commenced before a court, justice,
or judge of the United States for the release of a prisoner, the person
having custody of the prisoner must not transfer custody to another
unless a transfer is directed in accordance with this rule. When,
upon application, a custodian shows the need for a transfer, the
court, justice, or judge rendering the decision under review may
authorize the transfer and substitute the successor custodian as a
party.”
Relief for a violation of Fed.R.App. P. 23(a), however, is available only if a
habeas petitioner establishes that a transfer resulted in prejudice to the
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prosecution of a pending habeas action. See Shabazz v. Carroll, 814 F. 2d 1321,
1324 (9th Cir. 1987), vacated in part on other grounds, 833 F. 2d 149 (9th Cir.
1987); Hammer v. Meachum, 691 F. 2d 958, 961 (10th Cir. 1982). In addition, a
habeas petitioner who opposes transfer must establish that “the transfer would
deprive the court of jurisdiction or substantially complicate the conduct of the
litigation.” See Strachan v. Army Clemency Parole Bd., 151 F. 3d 1308, 1313
(10th Cir. 1998)(quoting Ward v. United States Parole Comm'n, 804 F. 2d 64, 66
(7th Cir. 1986)).
The Court denies petitioner’s renewed transfer request, because petitioner
has again failed to show that his placement in a prison in the Western District of
Michigan has deprived this Court of jurisdiction over his case or has otherwise
prejudiced him.
ORDER
Based upon the foregoing, IT IS ORDERED that the emergency motion for
an order to show cause [Dkt. # 201] is DENIED.

Dated: September 9, 2016

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on September 9, 2016, by electronic and/or ordinary
mail.
S/Catherine A. Pickles
Judicial Assistant
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