Burton v. McGlasson

Filing 4

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BOBBY E. BURTON, JR.,
Petitioner,
Civil Action 2:14-CV-10693
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT

v.

PROVIDER MCGLASSON,
Respondent,
_______________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
PAUPERIS
I. INTRODUCTION
Bobby E. Burton, Jr., (“Petitioner”), presently incarcerated with the
Texas Department of Criminal Justice, Correctional Institution Division at the
Coffield Unit in Tennessee Colony, Texas has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Mr.
Burton claims that he is being denied medications for an unspecified medical
condition. For the reasons stated below, the petition for writ of habeas corpus
is SUMMARILY DISMISSED WITHOUT PREJUDICE.

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II. DISCUSSION
The instant petition is subject to summary dismissal because petitioner
is challenging the conditions of his confinement.
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). Complaints like the ones raised by petitioner which involve conditions
of confinement “do not relate to the legality of the petitioner’s confinement, nor
do they relate to the legal sufficiency of the criminal court proceedings which
resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose,
483 F. Supp. 661, 672 (E.D. Tenn. 1980)). A petition for writ of habeas
corpus is not the proper vehicle for a prisoner’s claim that prison officials have
been deliberately indifferent to his medical needs, because release from
custody is not an available remedy for a deliberate indifference claim. See In
re Owens, 525 Fed. App’x 287, 290 (6th Cir. 2013); Glaus v. Anderson, 408

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F. 3d 382, 387 (7th Cir. 2005); Hamilton v. Gansheimer, 536 F. Supp. 2d 825,
841-42 (N.D. Ohio 2008). An inmate like petitioner should therefore bring his
medical indifference claim as a civil rights complaint. Glaus, 408 F. 3d at 38687. Because petitioner challenges only the conditions of his confinement, his
claims “fall outside of the cognizable core of habeas corpus relief.” See
Hodges v. Bell, 170 Fed. App’x 389, 393 (6th Cir. 2006).
This Court, will not, however, convert petitioner’s habeas petition into a
civil rights action. The Prisoner Litigation Reform Act of 1995 (PLRA) states
that “if a prisoner brings a civil action or files an appeal in forma pauperis, the
prisoner shall be required to pay the full amount of a filing fee.” 28 U.S.C. §
1915(b)(1)(as amended). See also In Re Prison Litigation Reform Act, 105 F.
3d 1131, 1138 (6th Cir. 1997). Under the PLRA, when an inmate seeks
pauper status, the only issue for the district court to determine is whether the
inmate is required to pay the entire four hundred ($ 400.00) dollar filing fee at
the outset of the case or over a period of time under an installment plan.
McGore v. Wrigglesworth, 114 F. 3d 601, 604 (6th Cir. 1997). If a prisoner
wishes to file a civil action and seek pauper status, the prisoner must file an
affidavit of indigency as well as a certified copy of his or her prison account
statement showing the activity in the inmate’s prison account for the previous

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six months. Id. at 605.
In addition, the PLRA requires that district courts screen all civil cases
brought by prisoners. See McGore, 114 F. 3d at 608. If a complaint fails to
pass muster under 28 U.S.C. §1915(e)(2) or § 1915A, the “district court
should sua sponte dismiss the complaint.” Id. at 612. Pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and § 1915(e)(2)(A), a district court must sua sponte dismiss
an in forma pauperis complaint before service on the defendant if satisfied
that the action is frivolous or malicious, that it fails to state a claim upon which
relief may be granted, or that it seeks monetary relief from a defendant or
defendants who are immune from such relief. McLittle v. O’Brien, 974 F. Supp.
635, 636 (E.D. Mich. 1997).
Finally, a federal district court may dismiss an incarcerated plaintiff’s civil
case if, on three or more previous occasions, a federal court dismissed the
incarcerated plaintiff's action because it was frivolous or malicious or failed to
state a claim for which relief may be granted. See, 28 U.S.C.§ 1915(g) (1996);
See also Thaddeus-X v. Blatter, 175 F. 3d 378, 400 (6th Cir. 1999).
Because of the vastly different procedural requirements for habeas
petitions and other civil actions brought by prisoners, a court confronted with
a habeas petition that is properly brought under § 1983 should dismiss the

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petition, rather than “converting” the petition to a civil action brought pursuant
to § 1983. Richmond v. Scibana, 387 F. 3d 602, 606 (7th Cir. 2004); See also
Martin v. Overton, 391 F. 3d 710, 713 (6th Cir. 2004)(holding that the district
court should have dismissed the habeas petitioner’s § 2241 petition without
prejudice to allow petitioner to raise his potential civil rights claims properly as
a § 1983 action rather than to re-characterize it as a § 2254 petition without
notice to petitioner).
Finally, even if this Court had the authority to convert the habeas petition
to a civil rights lawsuit, it would decline to do so, because venue for any such
lawsuit would be improper in this district because petitioner alleges that he is
being denied medications while incarcerated in Texas. Venue is in the judicial
district where either all defendants reside or where the claim arose. AlMuhaymin v. Jones, 895 F. 2d 1147, 1148 (6th Cir. 1990); 28 U.S.C. §
1391(b). Venue for any civil rights lawsuit would not be proper in the Eastern
District of Michigan, because petitioner does not allege that any of the acts,
events, or omissions which would form the basis of such a lawsuit took place
in this district. See Miles v. WTMX Radio, 15 Fed. App’x 213, 215 (6th Cir.
2001).

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III. CONCLUSION
The Court will summarily dismiss the petition for writ of habeas corpus.
The dismissal is without prejudice to petitioner re-filing a civil rights action in
the correct federal district court in Texas. 1
The Court will also deny a certificate of appealability to petitioner. 28
U.S.C. § 2253 governs appeals in habeas corpus proceedings. Section
2253(c)(2) states, in pertinent part: “A certificate of appealability may issue ...
only if the applicant has made a substantial showing of the denial of a
constitutional right.” See also Lyons v. Ohio Adult Parole Auth., 105 F. 3d
1063, 1073 (6th 1997). “The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court will deny the petitioner a certificate of appealability, because
reasonable jurists would not find debatable this Court’s determination that
petitioner’s challenge to his conditions of confinement should be brought in a
civil rights complaint pursuant to 42 U.S.C. § 1983, rather than as a habeas
action. See Rachal v. Quarterman, 265 Fed. Appx. 371, 377 (5th Cir. 2008).

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The Coffield Unit where petitioner is imprisoned is located in the United States District Court
for Eastern Texas, Tyler Divison. See Wehmhoefer v. Quarterman, No. :07-CV-2185-B; 2008 WL 533996,
* 2 (N.D. Tex. February 27, 2008).

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The Court will also deny petitioner leave to appeal in forma pauperis,
because the appeal would be frivolous. Myers v. Straub, 159 F. Supp. 2d 621,
629 (E.D. Mich. 2001).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ
of habeas corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is
DENIED.
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to
appeal in forma pauperis.
/sGershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
DATED: February 24, 2014

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on February 24, 2014.
s/Tanya R. Bankston
TANYA R.BANKSTON
Case Manager & Deputy Clerk

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