Rosberg v. Willis

Filing 4

ORDER Dismissing Complaint. Signed by U.S. District Judge Lawrence L. Piersol on 10/5/2015. (JLS)

UNITED STATES DISTRICT COURT

FILED

DISTRICT OF SOUTH DAKOTA

OCT 05 2015

SOUTHERN DIVISION
PAUL A. ROSBERG,

~~
4: 15-CV-04074-LLP

Petitioner,
vs.
ORDER DISMISSING
COMPLAINT

J.S. WILLIS, Warden,
Respondent.

INTRODUCTION

Petitioner, Paul A. Rosberg, filed this pro se petition pursuant to 28
U.S.C. § 2241. In his petition, he claims he has not received proper medical
care while incarcerated. Docket 1 at 3. For the following reasons, Rosberg's
complaint is dismissed.
DISCUSSION

The Eighth Circuit Court of Appeals stated, "[i]f the prisoner is not
challenging the validity of his conviction or the length of his detention, such as
loss of good time, then a writ of habeas corpus is not the proper remedy."
Spencer v. Haynes, 774 F.3d 467,469 (8th Cir. 2014) (quoting Kruger v.
Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996)). Pro se petitions are construed

liberally. [d. at 471. Here, as in Spencer, "an appropriate construction would be
to recharacterize [petitioner's] claim into the correct procedural vehicle for the
claim asserted." [d. Rosberg's petition raises potential Eighth Amendment

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violations and should be treated as a Bivens action. Spencer directs this Court
to "obtain the consent of the pro se individual before converting their claims
from a habeas proceeding to a Bivens action." Id.
Normally, the court would grant time to amend the complaint. Rosberg,
however, filed another complaint on the same day as this complaint stating his
claim in the appropriate § 1983 format. See 4: 15-CV-04076. Rosberg submitted
the exact same affidavit for both filings. Refiling this complaint as a § 1983
action would be futile.
Accordingly, it is ORDERED that Rosberg's complaint (Docket 1) is
dismissed without prejudice.
Dated October

5~015.
BY THE COURT:

A-~wLL~.i'& _

'fawrence L. Piersol
UNITED STATES DISTRICT JUDGE

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